The Apsrtc vs Ande Krishna Veni Another
2022 Latest Caselaw 7802 AP

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                                                               MACMA_1347_2013


          HON'BLE SHRI JUSTICE T. MALLIKARJUNA RAO


                     M.A.C.M.A. No.1347 OF 2013

JUDGMENT:

1. Aggrieved by the order dated 05.09.2011 in MVOP No.1054 of 2008

passed by the Chairman, Motor Accidents Claims Tribunal-cum-IV

Additional District Judge (Fast Track Court), Tanuku (for short 'the

Tribunal'), the 2nd respondent/APSRTC represented by Vice Chairman

& Managing Director, Hyderabad, has preferred this appeal

questioning the quantum of compensation amount of Rs.3,00,000/-

awarded by the Tribunal with proportionate costs and interest. For

convenience the parties will be referred to as arrayed in the MV OP.

2. The claimant has filed a claim petition under Section 163(A) of the

Motor Vehicles Act, 1988, r/w. Rule 455 of the AP Motor Vehicles

Rules 1989 seeking compensation of Rs.4,00,000/- for injuries

sustained in an accident held on 09.10.2008 at about 11.45 PM while

travelling in an APSRTC bus bearing No. AP 28 Z 2784 from

Vijayawada to Tanuku, along with her father, at Kanikaram Village on

NH-5. The 1st respondent drove the bus rashly and negligently hit the

stationed lorry, sustaining injuries to the left leg tibia and fibula of the

right leg tibia and fibula and fracture injury to the left patella.

3. The 2nd respondent has filed a written statement contending that

there is no rash or negligence on the part of the first respondent. At

the time of the accident, it was dark; the lorry was parked in the road

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margin, there was no proper lighting, and a hook to the lorry on his

backside margin came into contact with the passenger door of the bus,

thereby it damaged. Some who were sitting unsteadily sustained

injuries since they fell on the bus. As a result, there was no negligence

on the part of the 1st respondent, and she prayed to dismiss the claim

petition.

4. Based on the pleadings, the Tribunal has framed relevant issues.

During the trial, on behalf of the claimants, P.Ws.1 to 5 got examined

and marked Exs.A.1 to A.9. On behalf of the respondents, R.W.1 was

examined. No documentary evidence was marked on behalf of the

respondents. After considering the material evidence on record, the

Tribunal has decided that the first respondent drove the bus rashly

and negligently and was responsible for the accident, awarding

compensation an amount of Rs.3,00,000/- with interest @ 9% per

annum.

5. Heard learned counsel for the 2nd respondent, the appellant herein,

and learned counsel for the claimant, who is the first respondent

herein.

6. It is contended by the learned counsel for the 2nd respondent that the

Tribunal has failed to consider that the driver of the lorry was alone

responsible for causing the accident and the compensation amount

fixed by the Tribunal is improper and also erred in granting interest @

9% per annum.

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7. Learned counsel for the claimant has supported the finding of the

Tribunal.

8. Now the points for consideration are whether the Tribunal is justified

in holding that the accident occurred due to the rash and negligent

driving of the bus driver and whether the compensation fixed by

Tribunal is just and reasonable.

POINT:

9. In support of the case, the claimant herself was examined as P.W.1.

She deposed in her evidence about the manner of the accident.

According to her evidence, while she, along with her father, was

travelling in an APSRTC bus plying from Vijayawada to Tanuku, NH-5,

when they reached Kaikaram Centre, Unguturu Mandal, the 1st

respondent, who is the driver of the bus, drove in a rash and negligent

manner, dashed against the stationed lorry. Based on the report

lodged by the father of the claimant, a case in Crime No.155 of 2008

was registered against the bus driver. The attested copy of the FIR and

complaint is marked as Ex.A.1. As seen from the record, the 2nd

respondent/appellant has not disputed the claimant's case concerning

sustaining injuries in the accident. It is also evident by Ex.A.2 -

attested copy of the wound certificate. To prove the injuries suffered by

her, the claimant examined the Civil Assistant Surgeon as P.W.5.

10. The 2nd respondent, during the cross-examination of P.W.1, has

suggested that there is no negligence on the part of the 1st respondent.

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In the written statement, a plea is taken to the effect that at the time of

the accident, it was dark without proper lighting. A hook to the lorry

on the backside came into contact with the passenger door of the bus,

thereby, the bus was damaged, and passengers sitting in the bus

sustained injuries. From the suggestions put to the witness in the

cross-examination and the pleas taken by the 2nd respondent, it is

clear there is no dispute regarding the injuries sustained by the

claimant and the involvement of the bus in an accident. In a claim

petition filed under Section 163A of the Motor Vehicles Act, the

claimant need not prove the rash and negligent driving on the part of

the offending vehicle; it is enough to confirm that the claimant was

travelling in the offending vehicle at the time of the accident and the

involvement of the said offending vehicle in the accident. The stated

facts are not disputed by the 2nd respondent. The facts are established

by P.W.1, who sustained injuries in the accident and supported by

Ex.A.1-attested copy of the FIR. There is no pleading while the lorry

was proceeding in front of the bus, its driver suddenly applied the

breaks. As per the earlier version lorry was parked and RW.1 without

observing the same dashed against it. This Court is of the view that the

contention raised by the 2nd respondent with regard to the negligence

of the driver of the stationed lorry cannot be accepted. While dealing

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with the similar circumstances of the case between Bheemla Devi V.

Himachal Road Transport Corporation1, the Apex Court held that

"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. 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".

11. 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. A document having some probative value, the genuineness of

which is not in doubt, can be looked into by the Tribunal to get a

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

that even FIR 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

arriving at a conclusion regarding rashness and negligence, as well as

the mode and manner of the accident.

12. The claimant has adduced the evidence to prove that the accident

caused due to the rash and negligent driving of the offending vehicle's

driver. Either negligence or contributory negligence must be proved

like any other fact; there is a no different standard for proving

2009 ACJ 1725 (SC)

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negligence or contributory negligence. They cannot be decided on

suspicion or surprise; pleas made in the counter will remain as pleas

as they are not substantiated by acceptable, relevant and legal

evidence. The manner in which the accident happened leaves no way of

doubt that the driver of the offending vehicle was solely negligent in

causing said accident. Thus this Court accepts the finding of the

Tribunal that the accident occurred due to rash and negligent driving

of the offending vehicle.

13. Regarding the quantum of compensation, the claimant has claimed

compensation of Rs.4,00,000/-for the injuries sustained by her in the

accident. To prove the injuries sustained by her, Dr.M.V.G.Tilak, who

treated the claimant, was examined as P.W.4. He deposed that the

claimant was admitted to Sri Krishna Bhaskar Hospital, Eluru, on

11.10.2008 with a history of RTAK, MLC and found 1) fractures to both

the legs, left leg nailing was done with proximal and distal interlocking,

2) fracture medial malleolus open reduction and internal fixation was

done, and 3) comminuted fracture of the patella, patellectomy was

done, and discharged on 15.11.2008. He admitted that he issued

Ex.A.2-wound certificate. As seen from the record, the claimant has

produced the medical bills for Rs.35,000/- under Ex.A.6 and to prove

that she underwent treatment as an inpatient from 11.10.2008 to

15.11.2008, produced the discharge summary under Ex.A.8.

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14. The claimant also examined P.W.3 - Dr A.V.Vara Prasad, who has

been running Vamsi Super Specialty Hospital, Tanuku. According to

the evidence of P.W.3, the claimant was admitted to the hospital on

12.09.2009 for inflected inter-locking nailing to the left tibia, and she

was operated on the same day. Removal of implants was done,

thorough debridement was done, bone grafting was done above the

knee, a POP slab was applied, and the patient (claimant) was

discharged on 24.09.2009 with prescribed medicines. The claimant

produced medical bills for Rs.18,600/- and a discharge bill dated

24.09.2009. The 2nd respondent has not seriously disputed the

authenticity and genuineness of the medical bills. Considering the

medical record produced by the claimant, the learned Tribunal has

awarded an amount of Rs.18,600/-towards medical expenses.

15. The claimant further contends that she had sustained permanent

disability due to the injuries suffered in the accident. To prove the

disability, the claimant examined P.W.2-Dr.M.Srinivasa Rao, a member

of the Medical Board, Eluru. P.W.2 testified that he issued a disability

certificate Ex.A5 assessing the petitioner's disability @ 50%; from the

said evidence of P.W.2, coupled with other medical evidence placed

before the Tribunal, the disability of the claimant can be assessed @

50%. Though the claimant contends that she earns Rs.6,000/-per

month by doing milk vending business, the Tribunal has discarded the

contention and considered the claimant's annual income Rs.15,000/-

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per annum. After perusal of the reasons recorded by the Tribunal, this

Court feels that the Tribunal discarded the evidence without giving

good reasons. Simply because the claimant was unmarried, it cannot

presume that the claimant would not earn the amount by doing milk

business. In the facts of the case, the observation of the Tribunal that

the claimant is not expected to earn money because of being

unmarried does not stand for legal scrutiny. The notional income

would be assessed at Rs.30,000/- per annum. In the case on hand, a

claimant is a person aged 23 years, and the possibility of earning

Rs.30,000/-per annum by doing a milk business cannot be ruled out.

Upon careful perusal of the material evidence on record, this Court

views the Tribunal wrongly considering the claimant's earnings only at

Rs.15,000/- per annum instead of Rs.30,000/-. As there is still a lot of

life to enjoy, this Court believes that 50% of the functional disability

can be assessed.

16. The schedule under Section 163A of the Motor Vehicles Act, for

persons aged above 20 but not exceeding 25, indicates the appropriate

multiplier as '17' and thus, the total loss of functional disability of the

claimant can be assessed @ Rs.30,000 x 17 x 50% = Rs.2,70,000/-as it

can be seen from the record that the claimant has produced medical

bills. Since the claimant filed the claim petition under Section 163A of

the Act, this Court is of the view that only an amount of Rs.15,000/- is

to be awarded towards medical expenses and Rs.15,000/- towards

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injuries sustained by the claimant and thereby, the total compensation

arrived at Rs.2,70,000+30,000=3,00,000/-.

17. The learned counsel for the 2nd respondent mainly contended that

the Tribunal had granted interest @ 9% per annum, and the rate of

interest given by the Tribunal is excessive and on higher side and the

interest is to be scaled down. No material is placed to show that

interest awarded is not on par with the guidelines of RBI on the date of

occurrence. The 2nd respondent has not placed the evidence regarding

the rate of interest prevailing as on the date of accident. In United

India Insurance Co. Ltd., v. Satinder Kaur and others 2 in a case

where the tribunal allowed interest at 9% per annum and the High

Court observed it appropriate to direct the interest at the rate of 12%

per annum be paid on the total compensation awarded. The granting of

rate of interest depends on the facts and circumstances of the case. It

cannot be said that the rate of interest cannot be exceeded to more

than 7.5% per annum. Based on the facts of the case the tribunal

awarded the interest at the rate of 9% per annum. As such I am not

inclined to interfere with the rate of interest awarded by the tribunal.

18. Given the aforementioned discussion, I do not find any substance in

the appeal or reason to interfere with the impugned order in the

present appeal. Accordingly, the appeal is devoid of merits and

deserves to be dismissed. As a result, the appeal is dismissed without

2020 ACJ 2131

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costs and the order dated 5.9.2011 in MVOP No. 1054 of 2008 passed

by the Chairman; Motor Accidents Claims Tribunal-cum-IV Additional

District Judge (Fast Track Court), Tanuku, is hereby confirmed.

19. Miscellaneous Petitions if any pending in this appeal shall stand

closed.

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T. MALLIKARJUNA RAO, J.

Dt.13.10.2022 BV