K Basappa vs Andhra Pradesh State Road ...
2023 Latest Caselaw 591 AP

                                                                                1
                                                      M.A.C.M.A. No.633 of 2015 &
                                                      M.A.C.M.A. No.2236 of 2015

             HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO


              M.A.C.M.A. Nos.633 of 2015 & 2236 of 2015


COMMON JUDGMENT:

1.   Aggrieved by the order dated 19.01.2015 in M.V.O.P. No.141 of

     2012 passed by the Chairman, Motor Accidents Claims Tribunal-

     cum-Principal District Judge, Kurnool, the claimant in the

     M.V.O.P. No.141 of 2012 filed M.A.C.M.A. No.633 of 2015. In

     contrast, the respondent-A.P State Road Transport Corporation

rep., by its Regional Manager, Kurnool, has filed M.A.C.M.A.

No.2236 of 2015. As both appeals arise out of order passed in

M.V.O.P. No.141 of 2012, both appeals are disposed of by

common Judgment.

2. For convenience, the parties will be referred to per their rankings

in the M.V.O.P.

3. The claimant has filed a petition under Section 166 (1) (a) of the

Motor Vehicles Act, 1988, claiming compensation of

Rs.20,00,000/- on account of the injuries sustained by him in a

motor vehicle accident that took place on 04/05.09.2011 at about

01.45 AM near Ammavaripalli village Penugonda Mandal,

Anantapur District.

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

4. The claimant's case is that on 04.09.2011, the claimant and some

others boarded A.P.S.R.T.C. bus bearing registration No.AP21-Z-

0004 (hereinafter referred to as 'the offending bus') at

Yemmiganur to go to Bangalore at midnight at about 01.45 AM.

On 05.09.2011, the offending bus driver drove it at high speed

and in a rash and negligent manner, and when the offending bus

reached Ammavaripalli village, Penukonda Mandal, Anantapur

District, the offending bus driver lost control over the bus, due to

which the bus went and hit a lorry from behind, which was going

in the same direction on the extreme left side of the road, as a

result of which, the claimant sustained injuries all over the body

apart from crush injury over his left leg. Other inmates of the

offending bus also sustained injuries.

5. The respondent filed a counter, denying the averments in the

petition, inter alia, contending that the claimant has to prove his

age, income and avocation, as well as the manner of the accident

in which it occurred. There was no negligence on the part of the

offending bus driver, and the accident occurred due to rash and

negligent driving of the driver of the lorry bearing registration

No.KA01-4881. The said lorry was going on the right side, and the

bus was on the left side of the four-way road. When the bus

reached the said lorry, the driver suddenly turned it towards the

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

left side of the road without signal lights, due to which the left

portion of the offending bus touched the lorry on its back side.

The compensation claimed is high and excessive.

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

During the trial, on behalf of claimants, P.Ws.1 to 3 were

examined and marked Exs.A.1 to A.13. On behalf of the

respondent, R.W.1 got examined, but no documents got marked.

7. The learned Tribunal, after evaluating the evidence on record,

held that the accident occurred due to the rash and negligent

driving of the offending bus driver, which resulted in the injuries

of the claimant, and awarded compensation of Rs.8,02,400/- with

interest at 9% per annum from the date of the petition till the date

of realization against the respondent.

8. Heard both the learned counsels.

9. Learned counsel for the appellants/claimants in M.A.C.M.A.

No.633 of 2015 contended that the Tribunal erred in granting no

compensation under the head of mental agony, cost of artificial

leg, medical and incidental expenses, cost of litigation, loss of

future enjoyment of life and loss of amenities even though the

appellant suffered 80% disability as the claimant's left leg was

amputated upto knee and his left thigh portion was also operated

by inserting plates, while his right leg was already affected by

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

Polio which compels this case to be considered with more

empathy; the Tribunal erred in granting a very minimal

compensation towards non pecuniary damages under one head

covering disfiguration of his left leg, loss of marriage prospects,

loss of amenities and future medical expenses; the Tribunal erred

in calculating his loss of earning during period of treatment and

loss of earning capacity and future prospects of income; the

Tribunal ought to have added additional 50% of income towards

future prospects as the deceased was aged below 40 years; the

Tribunal erred in not considering the pay slips i.e., Exs.A.10 &

A.11, which were issued by the employer of the claimant and

wrongly fixed the monthly income of the claimant at Rs.3,000/-

per month only.

10. Learned counsel for the appellant/respondent in M.A.C.M.A.

No.2236 of 2015 contended that the Tribunal ought to have held

that there was contributory negligence on the part of the lorry

driver also; the Tribunal ought to have seen that though the

medical bills are not supported by medical prescriptions and non-

examination of the doctor who treated the claimant to prove the

injuries, the Tribunal erred in awarding an amount of

Rs.1,03,000/- towards medical expenses; the Tribunal erred in

holding that the income can be taken as Rs.3,000/- per month,

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

without there being any evidence to come to the such conclusion;

the Tribunal erred in holding that the accident occurred due to

rash and negligent driving of the offending bus driver. The

Tribunal failed to see that the O.P. is bad for the non-joinder of

proper and necessary parties, i.e., the owner and insurance

company of the offending bus.

11. Now the points that arise for consideration are:

1. Whether the Tribunal is justified in holding that the accident occurred due to the negligence of the offending bus driver or negligence of the lorry driver contributed to the accident?

2. Whether the quantum of compensation fixed by the Tribunal is just and reasonable?

POINT NO.1:

12. The claimant got examined as P.W.1. He testified about the

manner of the accident. He relied on Ex.A.1-certified copy of F.I.R.

and Ex.A.3-certified copy of the charge sheet in support of his

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

petition averments to the effect that the offending bus driver drove

the bus in a rash and negligent manner and hit the lorry from

behind, which was going in the same direction on the extreme left

side of the road, resulting in the accident. The claimant also relied

on Ex.A.3-certified copy of the charge sheet. According to the

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

charge sheet averments, the accident occurred due to the rash

and negligent driving of the offending bus driver.

13. The case of the claimant that he sustained injuries in the accident

is not disputed by the respondent. The dispute raised is at whose

negligence the accident occurred. The claimant relied on Ex.A2-

wound certificate and Ex.A4-Out patient ticket and medical bills.

14. The respondent examined the offending bus driver as RW.1, who

said to be caused the accident. He testified that the accident

occurred only due to the rash and negligent driving of the lorry

driver and that there was no negligence on his part. He admitted

that the police filed a charge sheet against him after an

investigation attributing that he was responsible for the accident.

The evidence of RW.1 shows that he did not report to the police

against the lorry driver attributing that the accident occurred due

to his negligence. Except for the self-serving testimony of RW.1,

no evidence was let in support of the respondent's case. No

independent witness was examined on behalf of the respondent,

contra to the claimant's evidence.

15. A perusal of Ex.A1 shows that the accident occurred on

04/05.09.2011 at about 01.45 AM, whereas the information was

received at the police station at 3.30 PM. The police station is at a

distance of 10 km from the place of the accident. In Ex.A1-F.I.R,

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

there is an explicit mention that the accident occurred due to

rash and negligent driving of the offending bus driver; it shows

that the bus dashed against the back side of the lorry. Though the

driver of the bus i.e., RW.1 was examined, he has not properly

explained the reason for the accident, except throwing the blame

against the lorry driver. The suggestion to RW1 shows that the

accident occurred while he was overtaking the bus. As per RW.1,

one of the bus passengers gave a report; he admitted that, the

police filed a charge sheet against him after an investigation. In

Ex.A3-Charge sheet, it is observed that the driver of the R.T.C.

bus drove the bus rashly and negligently and dashed the lorry on

its rear side. The evidence given by RW.1 for the accident is not

believable. This Court finds no reason for the investigation officer

to file the charge sheet against the RW.1 when the accident

occurred due to the negligence of the lorry driver.

16. The respondent did not adduce acceptable evidence to show that

the contents of the charge sheet are incorrect. In a decision

between K.Rajani and others, V. M.Satyanarayana Goud and

others1, the Hon'ble High Court is pleased to observe that:

"when the insurance company came to know that the police investigation is false, they must also challenge the charge sheet in appropriate proceedings. If at all the

2015 ACJ 797

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

findings of the police are found to be totally incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false".

17. In the case of Bheemla Devi V. Himachal Road Transport

Corporation2, 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 touch stone of preponderance of probabilities. The standard of proof beyond reasonable doubt could not have been applied".

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

charge sheet against the offending bus driver without conducting

a proper investigation; it is also difficult to hold that the Police

Officer fabricated a case.

19. 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 preponderance of probable versions.

20. 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

2009 ACJ 1725 (S.C.)

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

preponderance of probabilities is the touchstone for concluding

rashness and negligence, as well as the accident's mode and

manner of happening.

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

shows that the accident occurred due to the rash and negligent

driving of the offending bus driver, and when it contends that the

accident happened due to a lorry driver's negligence, it is to place

necessary evidence before the Tribunal, based on which the

Tribunal is expected to give its conclusion. The Tribunal has

accepted the claimant's case regarding the manner of the accident

and also accepted the observations made by the Investigating

Officer in the charge sheet making the offending bus driver

responsible for the accident. As already observed, the contents of

the charge sheet also support the claimant's case regarding the

manner of the accident. There is no material placed by the

appellant to show that the accident occurred due to the rash and

negligent driving of the lorry driver, as contended.

22. This Court views that it must prove either negligence or

contributory negligence like any other fact; there is no different

standard for proving negligence or contributory negligence. But

they cannot be decided on suspicion or surprise. The pleas taken

in the counter will remain as pleas as they are not substantiated

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

by acceptable, relevant and legal evidence. There must be cogent

evidence to prove contributory negligence. In the instant case,

there is no specific evidence to prove that the accident occurred

due to the lorry driver's negligence. In the absence of cogent

evidence to prove the plea of contributory negligence, this Court

cannot apply the common law doctrine in the present case.

Although there are no details of contributory negligence in the

counter, and no evidence is also put forth except alleging a stray

sentence in the counter. The manner in which the accident

happened leaves no doubt that the driver of the offending bus was

solely negligent in causing said accident. While granting relief

under the act, the courts are not to be bound by mere

technicalities but would adopt a liberal approach by giving the law

a wider construction and meaning that would favour the victims.

23. After carefully 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

offending bus driver. Accordingly, the point is answered.

POINT NO.2:

24. Since the quantum of compensation awarded by the Tribunal is

disputed by both sides, this Court is inclined to consider the

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

entire evidence adduced by both sides to decide the correctness of

the compensation awarded by the Tribunal.

25. It is the evidence of PW.1 that he sustained injuries all over the

body apart from a crush injury over his left leg. The evidence of

PW.1 that immediately after the accident, he was given first aid in

Hindupur hospital, and from there, he was shifted to Gowri Gopal

Hospital, Kurnool, and from there to K.I.M.S. Hospital,

Hyderabad, is not seriously disputed.

26. To prove the nature of injuries sustained by the claimant, he

relied on an Ex.A2-Wound certificate that he sustained the

injuries as follows:

1. Crush injury to the left leg above the ankle, visible bones, and bleeding.

2. Abrasion of 2 x 2 cm at the lower lip.

3. Pain in left knee joint swelling.

injury No.2 is simple in nature, while injuries No.1 and 3

are grievous. The other side does not dispute the evidence of PW.1

concerning sustaining injuries, as shown in Ex.A2-wound

certificate. After considering the nature of the injuries, the

Tribunal awarded an amount of Rs.30,000/- for two grievous

injuries and Rs.3,000/- for simple injury and, in total, awarded

Rs.33,000/- under the head of pain and suffering. This Court

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

views that the Tribunal awarded just and reasonable

compensation under the same, and it need not have interfered.

27. To prove the medical expenses incurred, the claimant relied on

Ex.A5 to Ex.A7 medical bills. Ex.A6 is the final bill issued by

K.I.M.S. Hyderabad for an amount of Rs.96,871/-; Ex.A7 are a

bunch of bills, 15 in number, for an amount of Rs.6,117/-. The

Tribunal by following the decision of the Hon'ble Apex Court in

Rekha Jain Vs. National Insurance Company Limited 3 ,

observed that the medical bills produced by the claimant can be

considered for computing the compensation.

28. The evidence of PW.1 that he got treatment in the K.I.M.S.

hospital from 05.09.2011 to 10.09.2011 is not disputed. It is not

the case of the respondent that the medical expenses incurred by

the claimant are not required for the treatment of the claimant. A

reading of the cross-examination of PW.1 shows that nothing is

elicited to create doubt about the genuineness and authenticity of

the medical bills produced by the claimant. After careful analysis

of the evidence on record, the Tribunal awarded an amount of

Rs.1,03,000/- under the head of medical expenses. The said

finding of the Tribunal need not be interfered with.

2013 ACH 2161

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

29. The Tribunal has awarded an amount of Rs.30,000/- towards

transport, special diet, and attendant charges. It is not in dispute

that the claimant took treatment in K.I.M.S. Hospital, Hyderabad,

all the way by travelling from Yemmiganur. He also got treatment

at Gowri Gopal Hospital, Kurnool, and he got treatment at

Hindupur hospital also. The finding of the Tribunal is that in view

of the claimant's injuries, he might not be able to avail public

transport. By making such an observation, the Tribunal awarded

Rs.30,000/- towards transportation, special diet and attendant

charges. Considering the nature of injuries sustained by the

claimant and his treatment, this Court views that the

compensation under this head need not be disturbed, and it is to

be confirmed.

30. It is the evidence of PW.1 that he joined as a regular employee in

T.E.C.H.C.I.L. Technology Pvt. Ltd., Bangalore, on a monthly

salary of Rs.8,000/-. In support of his case, he relied on Ex.A9-

Training cum appointment order issued by T.E.C.H.C.I.L. Pvt.

Ltd., Bangalore. The Tribunal has found that, as per Ex.10 and

Ex.A11, the claimant is described only as a software engineer

trainee, and admittedly, the claimant is not an engineering

graduate. Still, he completed his M.C.A. as per Ex.A13. The

claimant relied on Ex.A11-salary certificate for September 2011,

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

which shows that he got Rs.8,000/- towards his salary.

Considering the educational qualification of the injured claimant

and Ex.A11-salary certificate, this Court views that the Tribunal

is wrong in concluding that his income can be taken as

Rs.3,000/- per month instead of Rs.8,000/- per month. The

Tribunal observed that the claimant might not be able to attend

his work for a considerable period of time. Considering the nature

of injuries and treatment undergone by the claimant, I find that

the Tribunal is justified in holding that the claimant is entitled to

compensation towards loss of earnings for a period of six months.

In view of the foregoing discussion, this Court is inclined to hold

that the claimant is entitled to Rs.48,000/- (Rs.8,000/- x 6

months) towards loss of earnings. As such, this Court views that

an additional amount of Rs.30,000/- is to be awarded under the

head of loss of earnings.

31. It is not in dispute that the claimant sustained a crush injury in

the accident. To establish the said fact, the claimant got examined

by PW.2, one of the doctors A.M.Illiyas Basha, one of the members

of the District Medical Board. PW.2 deposed that the medical

board issued a disability certificate under Ex.A8 assessing the

functional disability at 80%. Since the left leg below the knee was

amputated, it is evidence of PW.2 that the claimant is not in a

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

position to move without the assistance of the others. If an

artificial leg is arranged, the person may do his normal work up to

50% to 60% but as the claimant is suffering from Polio in his right

leg; there is no such possibility. He further deposed that if one

lower limb of any person is affected by Polio, they will assess his

disability at 60% generally depending upon which severity.

32. In the Judgment of Raj Kumar Vs. Ajay Kumar4, the Apex Court

held that:

6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body found existing at the end of the period of treatment and recuperation after achieving the maximum bodily improvement or recovery which is likely to remain for the remaining life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident. However, he can perform some of them and is still able to engage in some gainful activities. Total permanent disability refers to a person's inability to perform any avocation or employment-related activities due to the accident.

8. Where the claimant suffers a permanent disability due to injuries, the assessment of compensation under the head of loss of future earnings would depend upon the

2011 A.C.J. Page 1

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most cases, the percentage of economic loss, the loss of earning capacity arising from a permanent disability, will differ from the percentage of permanent disability.

9. Therefore, the Tribunal must first decide whether there is any permanent disability, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide concerning the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed concerning any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability, then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability, it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of the permanent disability of the claimant based on the medical evidence, it has to determine whether the such permanent disability has affected or will affect his earning capacity.

13. We may now summarise the principles discussed above :

(i) All injuries (or permanent disabilities arising from injuries) do not result in loss of earning capacity.

(ii) The percentage of permanent disability concerning the person's whole body cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases where the Tribunal, based on evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal concerning the evidence in its entirety.

(iv) The same permanent Disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.

33. After carefully reading the material on record, this Court views

that the functional disability of the injured can be assessed at

40%.

34. In Gopalappa Vs. Kanduluru Sankara Reddy and another 5 the

High Court of Karnataka in a case relating to disability observed

as follows:

"in view of the decision of the Apex Court in the case of Pappu Deo Yadav vs Naresh Kumar, 2020 ACJ 2695 (S.C.), the claimant is entitled to an addition of 40 per cent of the assessed income towards future prospects".

35. Whereas coming to the present case, the claimant was aged about

24 years as of the accident according to Ex.A12-attested true copy

of the S.S.C. certificate.

36. The claimant's age, 24 at the time of the accident, is not disputed.

Considering the same, the Tribunal applied the multiplier of '18'

for the persons aged 21 to 25, as provided in Sarla Verma Vs.

2022 ACJ 1427

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

Delhi Transport Corporation6.

37. By following the observations made in the above-referred decision,

this Court assessed the monthly earnings, including prospects, of

the injured, would be at Rs.11,200/- (Rs.8,000/- + 40% of

Rs.8,000/-) and thereby computed the Disability at Rs.9,67,680/-

(Rs.11,200/- x 12 x 18 x 40%). In addition to the compensation

awarded by the Tribunal under this head, an additional amount

of Rs.4,49,280/- (Rs. Rs.9,67,680/- (-) Rs.5,18,400/-) is to be

awarded.

38. The Tribunal awarded an amount of Rs.1,00,000/- towards the

disfiguration of his left leg, marriage prospects, loss of amenities

and future medical expenses. After considering the material on

record, this Court finds that the Tribunal awarded just

compensation under those heads.

39. In all, this Court is inclined to enhance the compensation under

various heads in addition to the compensation awarded by the

Tribunal, as detailed hereunder:

Enhanced S.No. Head of the claim Compensation

1. The additional Rs. 4,49,280/-

amount awarded under the Disability

2. An additional Rs. 30,000/-

amount of loss of

2009 ACJ 1298

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

earnings Total Rs.4,79,280/-

40. After considering the material on record, this Court is inclined to

award a sum of Rs.4,79,280/- in addition to the award passed by

the Tribunal. In all, the claimant is entitled to an amount of

Rs.12,81,680/- (Rs.4,79,280/- + Rs.8,02,400/-). The Tribunal

awarded interest at the rate of 9 % per annum. Considering the

prevailing bank rate of interest, this Court views that the interest

is to be awarded at 7.5% per annum. Accordingly, the point is

answered.

41. In the result, the appeal filed by the claimant in

MACMA.No.633/2015 is allowed in part by enhancing the

compensation from Rs.8,02,400/- to Rs.12,81,680/- (Rupees

Twelve Lakhs Eighty-One Thousand Six Hundred and Eighty

Only) against the respondent with interest at 7.5% per annum

from the date of filing of the petition till the date of realization.

Respondent-A.P.S.R.T.C is directed to deposit the compensation

within two months, after excluding the already amount deposited,

from the date of receipt of a copy of this order. On such deposit,

the claimant is entitled to withdraw the compensation amount by

filing an appropriate application before the Tribunal.

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

42. The appeal filed by the respondent in M.A.C.M.A. No.2236 of 2015

is partly allowed by reducing the rate of interest from 9% p.a. to

7.5 % p.a., and the rest of the claim is dismissed.

43. In both appeals, the parties shall bear their costs.

44. Consequently, in these appeals, miscellaneous petitions pending,

if any, shall stand closed.

____________________________ T. MALLIKARJUNA RAO, J Date: 03.02.2023 SAK

M.A.C.M.A. No.633 of 2015 & M.A.C.M.A. No.2236 of 2015

HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

M.A.C.M.A. Nos.633 of 2015 & 2236 of 2015 Dated 03.02.2023 SAK