The Depot Manager vs V Balraj
2022 Latest Caselaw 3208 Tel

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                                                                                  SSRN, J
                                                                    MACMA.No.2274 of 2018




              HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU

                         MACMA.No. 2274 OF 2018

JUDGMENT:

Aggrieved by the award passed by the Motor Accident Claims Tribuynal-

cum-XXVI-Additional Chief Judge, City Civil Court, Hyderabad, the Depot

Manager, TSRTC Shadnagar and Managing Director, TSRTC preferred this

appeal, challenging the award dated 2-02-2018 passed in MVOP.No. 2276 of

2016 on various grounds.

2. The appellants, who are shown as respondents in MVOP.No.2276 of 2018

have claimed that the Tribunal committed an error in passing the award for

Rs.17,14,559-00 by fixing 90% contributory negligence on the part of the driver

of the bus. The appellants have claimed that the findings of Tribunal fixing the

responsibility for the accident to the driver is incorrect. The Tribunal did not

consider the fact that the injured-claimant did not add the insurer of the motor

cycle on which the respondent-claimant was proceeding at the time of accident

as party to the proceedings, thereby the claim-petition is bad for non-joinder of

necessary party. The appellants have claimed that the Tribunal did not

appreciate the fact that there is negligence on the part of the claimant, who

drove the motorbike in a rash and negligent manner with high speed and

without following the rules.

SSRN, J MACMA.No.2274 of 2018

3. The appellants have pleaded that the evidence of respondent-claimant,

who is examined as PW-1 being interested witness cannot be relied on without

any proof from an independent witness.

4. The appellants have also pleaded that since the petition is filed under

section 166 of the Motor Vehicles Act, it is for the injured-claimant to prove the

negligence and rashness on the part of the crime vehicle and in the absence of

any such proof, no liability can be fastened to the driver or the appellants

herein.

5. The appellants have further pleaded that the findings of the Tribunal

below taking the income of the respondent-claimant as Rs.5000/- per month

without any proof and it should have been considered as Rs.3,000/- per month

and they have also claimed that the Tribunal erred in considering 25% towards

future prospects while calculating the income of the respondent-claimant as

Rs.5000/- per month. There was no proof about the age of the respondent-

claimant but the Tribunal has committed an error by considering the age of the

respondent-claimant as 45 years and thereby applied multiplier '14' to arrive

the compensation towards loss of earning capacity. They have also pleaded that

the Tribunal committed an error in considering the percentage of disability of

the respondent-claimant as 80%, apart from this, the appellants have claimed

that the Tribunal committed an error in awarding various amounts namely;

Rs.1,00,000/- towards permanent disability in spite of the fact that already a

sum of Rs.8,40,000/- was awarded under the head of loss of future income.

SSRN, J MACMA.No.2274 of 2018

Rs.1,00,000/- towards future medical expenses without examination of the

doctor, who treated the respondent-claimant, Rs.1,00,000/- towards attendant

charges, which is excessive and Rs.1,00,000/- towards pain and suffering and

they have also disputed awarding medical expenses to a tune of Rs.4,65,065/-

without sufficient proof and thereby sought for setting aside the award and

decree.

6. Before deciding the merits of the appeal, it has to be examine whether

there was any case of the respondent-claimant before the court below and how

the Tribunal arrived to the conclusion for granting a sum of Rs.17,14,559/-

together with interest and costs. According to the material placed before the

Tribunal, it shows that the respondent-claimant has filed MVOP.No.2276 of

2016 claimaing a compensation of Rs.25,00,000/- for the injuries caused to him

on account of road traffic accident. The respondent-claimant has alleged that

on 05-05-2016 while he was proceeding from a mango garden on his motorbike

and when he reached near Dargah cross-roads, the driver of RTC bus bearing

No.AP-29-Z-0452 drove the bus in high speed and in a rash and negligent

manner and dashed the motorbike of the respondent-claimant and thereby he

fell down and sustained grievous injuries, resulted amputation of his right leg

above the knee level, open type-III 'C' commutated right distal femur plus

proximal and distal tibia and fibula fracture, open book pelvis with right

sacroiliac joint disruption and apart from other multiple injuries including

crush injury on right hand with vertical split of second web upto mid palm level

SSRN, J MACMA.No.2274 of 2018

and he was shifted to Care Hospitall, Banjara Hills, Hyderabad, where he spent

Rs.5,00,000/-for the treatment.

7. The respondent-claimant has pleaded that prior to the accident, he was

hale and healthy and he was driver by occupation and he was earning

Rs.12,000/- per month by doing fruits business and due to amputation of his

right leg he cannot work as driver and unable to attend any other work and

thereby he became permanently disabled and he sought for Rs.25,00,000/- for

compensation under various heads.

8. The respondent therein i.e., appellants in the present appeal filed a

common counter denying the material allegations made in the claim-petition

and submitted that the accident occurred due to rash and negligence of the

respondent-claimant, a petition was filed by the respondent for non-joinder of

motorbike and sought for dismissal of the claim-petition.

9. The Tribunal framed three issues for trial. During the course of trial, the

respondent-claimant has been examined as PW-1 and he has marked Exs.A-1 to

A-8 and two more witnesses were examined on his behalf. Respondents did not

adduce any oral or documentary evidence. The Tribunal considered the oral and

documentary evidence and concluded that the accident occurred due to the

rash and negligent driving by the driver of RTC bus and 10% contributory

negligence on the part of the respondent-claimant, the compensation of 10?% is

reduced. The Tribunal awarded compensation of Rs.,17,14,559/- under various

heads.

SSRN, J MACMA.No.2274 of 2018

10. Therefore, the point for consideration in the present appeal is :

" Whether the Tribunal committed error in awarding compensation as Rs.17,14,559/- and if so, whether the same can be reduced and to what extent ? "

11. The first claim raised by the appellants in the present appeal is with

regard to contributory negligence. According to the pleadings and as per the

arguments advanced by the learned standing counsel for the appellants, it is

claimed that there was no negligence or rashness by the driver of RTC bus and

in fact the respondent-claimant was coming in a rash and negligent manner,

thereby the accident occurred, as such, the findings of the Tribunal by which

only 10% contributory negligence attributed to the respondent-claimant is

incorrect. However, it is true that no independent witness is examined before

the court below to prove the accident. But the record shows that the

respondent-claimant has filed certified copy of the charge sheet filed against

the driver of the RTC bus wherein it is categorically stated that the accident

occurred due to the rash and negligent driving by the RTC bus driver.

12. The respondent-claimant, who is examined as PW-1 deposed before the

court as to how the accident occurred. According to his evidence, while he was

proceeding on a motor cycle the driver of the RTC bus while proceeding from

Shadnagar to Amangal dashed the motorbike resulting fall of the claimant and

causing serious injuries. PW-1 was cross-examined by the counsel for the

appellant herein but, nothing worth could be elicited from him to show that he

SSRN, J MACMA.No.2274 of 2018

was deposing false. It is true that the respondent-claimant admitted that he did

not possess license and he was not wearing helmet at the time of accident. In

the absence of any evidence before the court below that the respondent-

claimant in view of lack of license or by not wearing helmet contributed for the

accident and in the light of the evidence along with averments in the charge

sheet the findings of the court below attributing 90% of the negligence to the

RTC driver cannot be disturbed.

13. The next aspect argued by the counsel for the appellants is with regard to

the income of the claimant. The court below considered the income of the

claimant as Rs.5,000/- per month. According to the averments made in the

claim-petition and as per the evidence, it was the case of the respondent-

claimant that he was driver but he lost the license at the time of accident. He

has also pleaded that he was conducting fruit business and at the time of

accident he went to a fruit garden and returning on his motorbike. Since he did

not produce any proof about his profession as 'driver' and as the driving

license is not placed before the court, the income of the respondent-claimant

was assessed as Rs.5,000/- per month. The respondent-claimant was aged

about 45 years at the time of accident, he was an able bodied person

maintaining a motorbike, therefore, I believe that he can easily earn Rs.5,000/-

per month even by attending labour work or fruit business. The court below

rightly considered the income of the respondent-claimant as Rs.5,000/- per

SSRN, J MACMA.No.2274 of 2018

month and in view of the age of the respondent-claimant as 45 years, the future

prospectus at 25% can be allowed.

14. The appellants have pleaded that there is no proof about the correct age

of the injured claimant. In fact the respondent-claimant pleaded that he was

aged about 32 years at the time of accident, the court below considered the age

of the respondent-claimant as 45 years on the basis of the discharge summary

of the hospital. There is no dispute about the amputation of his right leg above

the knee level. The evidence produced by the respondent-claimant clearly

shows that he suffered multiple injuries including crush injury to the right

hand and amputation of the right leg. In support of his plea, the respondent-

claimant has examined Orthopedic Surgeon, Government Hospital, Narayanpet,

as PW-2. The evidence of PW-2 coupled with the medical record categorically

shows that the respondent-claimant has spent Rs.5,65,735/- as medical

expenses. There is no dispute about the amputation of right leg above the knee

level of the respondent-claimant in the accident. Therefore, I have no hesitation

to accept the contention of the respondent-claimant that he suffered

permanent 80% disability which will affect his occupation and future life style

of the respondent-claimant.

15. The court below having considered the income of the respondent-

claimant as Rs.5,000/- per month by adding 25% to the income as future

prospectus applied multiplier '14' and awarded a sum of Rs.8,40,000/- towards

loss of future income due to the permanent disability. Even though there is no

SSRN, J MACMA.No.2274 of 2018

evidence to believe that the respondent-claimant engaged an attendant in view

of the specific evidence placed before the court that his right leg was

amputated, it is obvious and it can be accepted that he require the help of an

attendant throughout his life. Therefore, awarding a sum of Rs1,00,000/-

towards attendant charges, Rs.1,00,000/- towards permanent disability,

Rs.1,00,000/- towards future medical expenses apart from Rs.2,00,000/- for

obtaining a artificial leg, in my considered opinion is not an excess amount of

compensation. Therefore, the appellants herein could not show that the court

below awarded excess amount of compensation to the respondent-claimant, as

such, the appeal is liable to be dismissed.

16. In the result, this appeal is dismissed. There shall be no order as to costs.

17. As a sequel, miscellaneous applications pending, if any, shall stand

disposed of.

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JUSTICE SAMBASIVA RAO NAIDU.

01-07-2022 ISL

SSRN, J MACMA.No.2274 of 2018

HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU

MACMA.No. 2274 OF 2018 ( PD JUDGMENT )

RESULT: DISMISSED. NO COSTS.

                 Circulation No.
                Date:    -06-2022
                Court Master : ISL