The Ap State Road Transport ... vs Revada Ramana Anr
2022 Latest Caselaw 9393 AP

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                                                      MACMA No.762_2012

       HON'BLE SHRI JUSTICE T. MALLIKARJUNA RAO


                  M.A.C.M.A. No.762 OF 2012


JUDGMENT:

1. Aggrieved by the order dated 03.01.2011 in M.V.O.P. No.300 of

2007 passed by the Chairman, Motor Accidents Claims Tribunal-

cum- IV Additional District Judge, at Kakinada (for short 'the

tribunal'), the respondent No.2 filed this appeal questioning the

award passed by the tribunal.

2. For convenience, hereinafter, the parties will be referred to as

per their rankings in the M.V.O.P.

3. The claimants filed a claim petition under Section 166 of the

Motor Vehicles Act, 1988, for compensation amount of

Rs.1,50,000/-. The claimant's case is that on 16.09.2006 he

along with one R.Sreeramulu proceeded on a Hero Majestic

Moped and when they reached fly over bridge at Tuni on NH5

road, APSRTC bus bearing No.AP 11 Z 5540 driven by the first

respondent in a rash and negligent manner dashed the motor

cycle, resulting which the claimant sustained injuries all over

the body and shifted to Area Hospital, Tuni. Later, for better

treatment, he was shifted to GGH Kakninada.

4. The first respondent remained ex-parte.

MACMA No.762_2012

5. The second respondent-RTC Corporation filed its counter stating

that the first respondent while coming out of Tuni bus stand

slowly and approaching National Highway, observed the claimant

and another coming on moped with high speed and on seeing

them, the first respondent applied brake, but failed to control the

bus, the claimant himself dashed the stationed bus, fell on

ground and sustained injuries. There is no negligence on the

part of the first respondent and further stated that the claim

petition is bad for non joinder of insurer of Hero Majestic Moped.

6. Based on the pleadings, the Tribunal framed appropriate issues.

To substantiate the claim, during the trial, on behalf of the

claimant, P.Ws.1 to 3 got examined and marked Exs.A.1 to A.6.

On behalf of the second respondent, R.W.1 got examined, but no

document was marked.

7. After considering the evidence on record, the tribunal held the

accident occurred due to the rash and negligent driving of the

first respondent and awarded a compensation amount of

Rs.1,37,200/- with interest at 7.5% per annum from the date of

claim petition till the date of realization against respondents 1

and 2.

8. Heard the learned counsel for both parties.

MACMA No.762_2012

9. The main contention of the learned standing counsel for the

appellant/2nd respondent is that the tribunal erred in fixing the

responsibility on the driver of the RTC bus and erred in granting

compensation amount under various heads.

10. The learned counsel for the 1st respondent/ claimant supported

the findings and observations of the Tribunal.

11. Now the points for determination are,

I. Whether the finding of the tribunal that the accident occurred due to the rash and negligent driving of the bus driver?

II. Whether the compensation amount awarded by the tribunal is just and reasonable, or does it require modification?

POINT No. I:

12. The claimant got examined as P.W.1 to prove the manner of the

accident. According to his evidence, on 16.09.2006 while he

along with one R.Sreeramulu were proceeding on a Hero Majestic

Moped and when they reached fly over bridge at Tuni on NH5

road, APSRTC bus bearing No.AP 11 Z 5540 driven by the first

respondent in a rash and negligent manner dashed the motor

cycle, resulting which he sustained injuries all over the body and

he was shifted to Area Hospital, Tuni. Later, for better treatment,

he was shifted to GGH Kakninada. In the cross-examination, he

denied the suggestion that Moped was driven with high spped

and accident occurred due to his negligence while riding of the

MACMA No.762_2012

Moped. Nothing is elicited in the cross-examination to discredit

his evidence. On the other hand though the first respondent has

not chosen to file counter explaining his stand regarding the

manner of the accident, but he got examined as R.W.1.

According to his evidence, on seeing the Moped in irregular

direction he slow down the bus, applied the brakes and the

brought the bus into stationed position, but the claimant due to

lack of control over the Moped dashed the stationed bus. The

first respondent has not explained any reason for not filing the

counter explaining his stand. As such, it is the contention of the

claimant's counsel that it is an afterthought and without support

of the pleadings, the evidence of R.W.1 not to be considered at all.

13. However, a reading of the tribunal's order shows that it

considered and appreciated the evidence of R.W.1 to come to a

conclusion. The claimant relied on Ex.A.1-attested copy of F.I.R.,

A reading of Ex.A.1 shows that it is almost similar to that of

petition averments that the first respondent drove the RTC bus in

a rash and negligent manner. The claimant also relied on Ex.A.3-

certified copy of the charge sheet. According to the allegations

made in the charge sheet, the accident occurred due to the rash

and negligent driving of the first respondent.

14. Neither the claimant nor the respondents did adduce any

evidence to show that the contents of the charge sheet are

MACMA No.762_2012

incorrect. In K.Rajani and others, V. M.Satyanarayana Goud

and others 1 , the erstwhile High Court of Andhra Pradesh

observed that:

"when the insurance company knew that the police investigation was false, they must also challenge the charge sheet in appropriate proceedings. If at all the findings of the police are found to be incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false".

15. In Bheemla Devi V. Himachal Road Transport Corporation 2

the Hon'ble Apex Court observed as follows:

"It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond a reasonable doubt could not have been applied".

16. Nothing on record suggests that the Investigating Officer filed a

charge sheet against the driver of the R.T.C. bus without

conducting a proper investigation; it is also difficult to hold that

the Police Officer fabricated a case. In a proceeding under the

M.V. Act, where the procedure is a summary procedure, there is

no need to go by strict rules of pleading or evidence. The

document having some probative value, the genuineness of which

is not in doubt, can be looked into by the Tribunal for getting

2015 ACJ 797

2009 ACJ 1725 (S.C.)

MACMA No.762_2012

preponderance of probable versions. As such, it is now well

settled that even F.I.R. or Police Papers, when made part of a

claim petition, can be looked into for giving a finding in respect of

the happening of the accident. The preponderance of probabilities

is the touchstone for concluding rashness and negligence, as well

as the accident's mode and manner of happening.

17. The reading of the documents placed before the Tribunal clearly

shows that the accident occurred due to negligence of the first

respondent/ bus driver. When it contends that the accident

happened due to the only negligence of the claimant, the

respondents have to place necessary evidence before the Tribunal

based on which the Tribunal is expected to give its conclusion.

No material was placed by the second respondent to show the

accident occurred due to the negligence of the claimant, as

contended.

18. After careful reading the entire evidence adduced by both sides,

this Court accepts the finding recorded by the tribunal regarding

the occurrence of the accident due to the negligence of the first

respondent/bus driver. Accordingly, the point is answered.

POINT No. II

19. To prove the injuries sustained by the claimant, he got examined

P.W.2-Dr.K.Giri Rao, who deposed that he found following

injuries on P.W.1;

MACMA No.762_2012

1) Fracture left femur with dislocation and swelling of left thigh;

2) Laceration 1 ½ x 1/3 cm over the left knee with irregular margins;

3) Intra vernacular bleeding on the left side;

4) Fracture of left ear and there was bleeding in the left ear;

20. However as noticed by the tribunal, Ex.A.2 wound certificate

shows only two injuries as referred 1 and 3 above. P.W.2 has

given evidence basing on Ex.X.1-case sheet. According to his

opinion, the injury No.1 and injury No.3 of CT brain scan are

grievous in nature and the other injury is considered as simple in

nature. Basing on the injuries as noted in Ex.A.2-wound

certificate and also the evidence of P.Ws.1 and 2, the tribunal

awarded a sum of Rs.30,000/- for grievous injuries and a sum of

Rs.2,000/- to one simple injury. After reading of the evidence,

this Court finds that the tribunal awarded just and reasonable

compensation towards injuries.

21. The evidence of P.W.2 shows that for left femur, a surgery was

conducted by orthopedic surgeon on 02.02.2007. For head

injury, the claimant was treated in the unit of Neuro surgeon i.e.

by P.W.2 himself. The evidence of P.W.2 shows that in Neuro

surgeon ward, the claimant was inpatient from 16.09.2006 to

27.09.2006. Overall, the evidence of P.W.2 shows that, P.W.1 got

treatment as inpatient from 16.09.2006 to 30.03.2007. The said

MACMA No.762_2012

evidence of P.W.2 is not disputed, it shows that for a period of

more than six months, the claimant got treatment as inpatient

and a surgery was also conducted by Orthopedic surgeon. The

evidence of P.W.2 further shows that claimant was unconscious

at the time of admission in the hospital on 18.09.2006. The

evidence of P.W.2 shows that he has given treatment only in

respect of the head injury. The evidence on record shows that

P.W.1 was referred to G.G.H., Kakinada for expert management.

The evidence of P.W.3-Dr.V.Satyadev, Professor of Head of

Department Orthopedic shows that X-ray reveals fracture of left

femur segmental or double fracture. According to his evidence,

P.W.1 was operated on 15.12.2006 for the left femur and re-

operated on 02.02.2007 for the same limb and he was discharged

on 13.03.2007. He also deposed about 40% permanent

impairment due to gross shortening of left lower limb and

limitation of movements of left knee. Considering the said

evidence of P.Ws.2 and 3 and he was operated twice and in view

of the head injury, the tribunal awarded Rs.20,000/- towards

shock, pain and suffering. Though P.W.3 deposed about 40%

disability, the tribunal has not considered the same as it is not

supported by the documentary evidence. The evidence on record

shows that P.W.1 sustained permanent physical impairment and

he got treatment for 6 ½ months, the tribunal awarded

MACMA No.762_2012

Rs.50,000/- for the said discomfort. As the claimant is a mason

and by taking his earnings at Rs.3,000/- per month and he was

hospitalized for a period of 6 ½ months, and by assessing the

recovery period for 07 months, the tribunal has reasonably

awarded Rs.21,000/- towards loss of income. Considering the

nature of injuries, tribunal awarded a sum of Rs.6,000/- towards

extra nourishment and awarded Rs.4,000/- towards transport

and attending charges.

22. As seen from the record, the claimant produced Ex.A.4-bunch of

medical bills (77 Nos.). As in most of the bills, the name of the

patient was written in manuscript and in some bills the name of

the patient is not mentioned and the tribunal ignored those bills

and finally awarded an amount Rs.4,200/- towards medical bills.

23. After careful reading of the material placed and also award of the

tribunal, this court views that the tribunal has awarded

reasonable compensation to the claimant. While awarding

compensation, the tribunal has given prominence to the

treatment undergone by him for a period of six months and also

considered that he got two surgeries in different hospital and he

lost his earnings for a period of seven months. By taking into

consideration, it cannot be said that the compensation awarded

by the tribunal is on higher side and excessive.

24. Hence, I do not find any substance in the appeal to interfere with

MACMA No.762_2012

the order passed by the tribunal and the appeal deserves to be

dismissed by confirming the order of the tribunal.

25. Accordingly, the appeal is dismissed. No costs.

26. Consequently, miscellaneous petitions pending, if any, in this

appeal shall stand closed.

------------------------------------- T. MALLIKARJUNA RAO, J.

Dt.     .12.2022
BV