V.B. Munaswamy vs C.M.T. Company 2 Others
2022 Latest Caselaw 2087 AP

     HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

    THE HON'BLE Mr. JUSTICE G. RAMAKRISHNA PRASAD

                   M.A.C.M.A.No.309 OF 2006


V.B. Munaswamy,
S/o.Balasubramanyam,
Aged about 47 years,
Driver of RTC Palamaner Depot,
R/o. Vinayakanagar,
Gantavooru Village and Post,
Palamaner Mandal, Chittoor District.
                                                ...        Appellant


                                   Versus

1) C.M.T. Company Rep. by its Managing Partner
C.S. Suresh, Owner of Bus No.AP-03-U-1222,
Manithopu, Chittoor District.

2) The New India Assurance Company Limited,
Rep. by its Divisional Manager,
Sankarapuram, Cuddapah.

3) A.P.S.R.T.C. rep.by its Managing Director,
Musheerabad, Hyderabad.
                                                ...     Respondents

Counsel for the appellant : M/s. Indus Law Firm,

Counsel for the respondents : C.V. Rajeeva Reddy, Learned Counsel for 2nd respondent.

                         ORAL JUDGMENT
                         Date:     .04.2022


            Heard both the learned counsel.

2. The present M.A.C.M.A.No.309 of 2006 arise out of

award rendered by VIII Additional District Judge (FTC)-cum-

Chairman, M.A.C.Tribunal, Chittoor, dated 26.04.2005 in

M.V.O.P.No.393 of 1999. The claimant is the driver in APSRTC

bus bearing No.AP-9-Z-8738. The accident was on account of the

collusion between two buses one belonging to respondent No.3

(APSRTC) driven by the claimant/appellant and other bus bearing

No.AP-03-U-1222 owned by the respondent no.1 herein namely

C.M.T.Company represented by its Managing Partner C.S. Suresh.

3. Both were coming in the opposite direction when the

collusion took place. The Sub-Inspector of Police, Somala has

registered a case bearing Crime No.84 of 1998 against the

claimant/appellant herein.

4. The claimant/appellant was aged 42 years on the date

of occurrence. He contended that he received multiple injuries,

and therefore, took treatment from 13.10.1998 to 07.11.1998 as

impatient in S.V.R.R. Hospital, Tirupati. He underwent major

operation on his right leg and that steel plates were inserted and

bone grafting also has taken place and that even on the date of

filing of the claim petition he has been under treatment. He also

contended that the criminal case filed against him ended in

acquittal.

5. The version of the respondent no.1 is that the accident

occurred due to rash and negligent driving of the

claimant/appellant. That the collusion has happened on account

of the negligence of the petitioner resulted in causing injury not

only to the petitioner, the injuries to several others and also loss of

life in respect of one passenger in the bus owned by the respondent

no.1. It was also contended by the respondent no.1 that the

claimant/appellant cannot allow to take undue advantage of his

own negligent acts and that the acquittal in criminal case, if any,

cannot come to his benefit.

6. The respondent no.3, the employer of the claimant

stated that there is negligence on the part of the driver of the

respondent no.1, and therefore, the respondent no.3 cannot be

passed with any liability to pay compensation.

7. The claimant has relied on Ex.A3 which is the

permanent disability certificate indicating permanent disability of

an accident of 30%. He also claims loss of income on account of

the sustained treatment that he has undergone. He had also

stated that he has spent about Rs.1,20,000/- towards medical

treatment and that he underwent three surgeries that on

14.10.1998, 23.10.1998 and 26.10.1998 in S.V.R.R. Hospital,

Tirupati. In order to substantiate his contention he had examined

P.W.2, who is Assistant Professor in S.V.R.R. Hospital, Tirupati.

The said witness deposed that apart from minor injuries, for the

more serious injuries sustained by the claimant, he was treated by

P.W.2 and he had deposed that (P.W.1) underwent surgery three

times; that the first surgery was performed on the heel for the

repair of tendon; the second surgery was performed on the left leg

under general anaesthesia; and the third one was performed on

right thigh and rod was implanted. The said witness namely P.W.2

also stated that he was admitted in S.V.R.R. Hospital, Tirupati on

13.10.1998 and was discharged on 09.11.1998.

8. In support of his contention, the claimant had filed

certified copies of FIR (Ex.A1) in Crime No.84 of 1999, Motor

Vehicle Inspector report, permanent disability certificate, C.C. of

Judgment in C.C.No.1 of 1999 on the file of J.M.F.C. Punganur

and discharge summary. The case sheet record of the hospital was

also filed Ex.X1. None one examined, nor any documents filed on

behalf of the respondents.

9. Having considered the rival contentions, the learned

VIII Additional District Judge (FTC)-cum- Chairman,

M.A.C.Tribunal, Chittoor had granted a sum of Rs.75,000/- as

compensation with interest at 9% per annum from the date of

petition till realisation.

10. Being aggrieved of the said award rendered by the

Tribunal, the claimant preferred the present appeal.

11. His contention is that the liability of contributory

negligence ought not to have pass end/peasant to him on 50%

basis by invoking the principle/number of contributory

negligence.

12. This Court has gone through the contents of the award

and a reasoning given in the award as regards the role of the

claimant/appellant. Insofar as, the occurrence as well as the

injuries sustained by him and the medical treatment taken by the

claimant there is no dispute.

13. It is not borne out from the Judgment that the claim

has let any evidence against the bus driver of the respondent no.1

to prove that he was negligence.

14. The Judgment under appeal also has noted the fact

that a criminal case was registered against the claimant. It is also

be noted that the claimant has not let any evidence that he has

made acquitted in the criminal case filed against him, nor was able

to establish that he demoted and that he was not paid salary

during nine months period. He has neither filed any office records

nor has examined any person from the office of the respondent

no.3/APSRTC.

15. However, the Tribunal has awarded compensation to a

sum of Rs.75,000/- with interest at the rate of 9% per annum from

the date of petition till realisation against the respondents with a

direction to respondent nos.2 and 3 (The New India Assurance

Company Limited and A.P.S.R.T.C.) to pay compensation of

50:50% basis. This includes compensation for pain and suffering

and for deprivation of pleasure as well as amenities in life due to

permanent disability caused by fracture. Cost of medical

treatment was also granted which is included in the compensation

of Rs.75,000/-.

16. In support of the claim, the learned counsel for the

appellant has cited the case of Chalapaka Suresh vs. B.

Sankara Rao and others (2022(1) ALT 39 (S.B.)) to substantiate

the claim for loss of earning capacity. The learned counsel has

referred to para 32 of the said Judgment to indicate that the Court

can refer the case of the claimants to a medical board for assessing

loss of earning capacity. This Judgment is of no award to the

appellant simple reason that the Tribunal has categorical finding

that the claimant himself has failed to leave evidence with regard

to reduction in pay even for a period of nine months.

17. In para 34 of the impugned order is extracted below:

34. I have gone through the evidence on record. Admittedly, P.W.1 is a driver of RTC. In cross examination by R.2, P.W.1 has clearly admitted that he is still in service. When he is in service, question of losing income does not arise. It is not the case of P.W.1 that he lost the job of driver due to his inability to drive on account of the disability. There is no evidence to show that P.W.1 is demoted to the lower post. The evidence of P.W.1 shows that due to the

accident, he lost 9 months salary and he filed 9 salary bills marked as Ex.A7. But, P.W.1 failed to examine the concerned person from R.T.C. to prove that he was not paid salary at all during 9 months period, with reference to relevant office records. In the absence of documentary evidence, it cannot be said that the petitioner sustained loss of income.

18. The learned counsel for the appellant has also cited

Judgment of this Court in Thogati Veeranjaneyulu vs. Syed

Basha and another (2022 (1) ALT 161 (S.B.)) to substantiate the

compensation to be awarded under heads of pain and suffering

and loss of amenities.

19. In the present case, the compensation awarded by the

tribunal for loss of pain and suffering an amount of Rs.40,000/- is

just and reasonable and hence would not call for any interference.

The learned counsel for the appellant has drawn the attention of

this Court, the findings rendered by para 12 of the Judgment by

the Hon'ble Supreme Court in Sanjay Kumar vs. Ashok Kumar

and another ((2014) 5 Supreme Court Cases 330) relating to the

heads under which compensation should be assessed. For the

sake of convenience, the said para 12 is extracted herein. Having

gone through the contents of the Judgment mentioned above, this

Court is of the considered opinion that the amount of

compensation which has been awarded to the claimant/appellant

under various heads is reasonable and does not call for any

interfere in view of the fact that tribunal has given a categorical

finding that the negligence was contributory in nature.

20. The learned counsel for the respondents cited

Judgment of the Hon'ble Supreme Court in N.K.V. Brothers (P)

Limited vs. M. Karumai Ammal and others (AIR 1980

SUPREME COURT 1354) to indicate that it does not prevent civil

court by drawing adverse inference by negligent by a person

against whom a criminal case for rash and negligent driving has

ended in an acquittal.

21. In view of the findings of this Court as mentioned

above, this Court is of the considered opinion that the findings

rendered by the Tribunal do not call for any interference,

particularly for the reasoning given by the Tribunal has negligence

on the part of the claim has not been disprove.

22. Having gone through the contents of the Judgment

under appeal and also noting done the facts mentioned therein,

this Court is unable to fathom as to how 50% contributory

negligence has been fastened to the bus belonging to respondent

no.1 while no evidence has been adduced against the driver of

belonging to the respondent no.1 to prove that the driver of the

said bus bearing No.AP-03-U-1222 was negligent. The Tribunal,

ought not to have passing any liability of contributory negligence

on the part of the driver of the respondent no.1, when there is no

material on record to substantiate the same. However, since there

is no appeal preferred by respondent no.1/C.M.T.Company

represented by its Managing Partner C.S.Suresh, the finding of

50% of contributory negligence were the driver of both the parties

has rendered by the Tribunal is sustained. In view of the findings

given by the Tribunal and reasoning thereof, this Court is of a

considered opinion that claimant/appellant has not made out a

case for interference.

23. Accordingly, the appeal is dismissed without costs.

________________________________ (G. RAMAKRISHNA PRASAD, J)

Dt:

SDP

THE HON'BLE Mr. JUSTICE G. RAMAKRISHNA PRASAD

M.A.C.M.A.No. OF 2005

SDP