Telangana High Court
Ch. Preethi vs Andhra Pradesh State Road Corporation ... on 16 December, 2023
1 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
*THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+ M.A.C.M.A.Nos.1375 OF 2011 and 4342 OF 2012
% 16--12--2023
# Ch.Preethi
...Appellant/Petitioner
vs.
$ Andhra Pradesh State Road Corporation and another
... Respondents/Respondents
!Counsel for the Appellant : Sri T.Viswarupachari
^Counsel for Respondents : Sri K.Srinivas Rao
<Gist :
>Head Note :
? Cases referred
1. 2023 ACJ 1653
2. 2022 SC Online 1701
3. (2017) 16 SCC 680
4. 2009 ACJ 1298
5. (2015) 9 Supreme Court Cases 273
6. MANU/SC/0480/2013
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
2 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
M.A.C.M.A.Nos.1375 OF 2011 and 4342 OF 2012
Between:
Ch.Preethi ... Appellant/Petitioner
and
Andhra Pradesh State Road Corporation and another
... Respondents
JUDGMENT PRONOUNCED ON: 16.12.2023
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? :
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? :
3. Whether His Lordship wishes to
see the fair copy of the Judgment? :
____________________________________________
NAMAVARAPU RAJESHWAR RAO, J
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.Nos.1375 of 2011 and 4342 of 2012
COMMON JUDGMENT:
These two appeals are being disposed of by this
common judgment since M.A.C.M.A.No.4342 of 2012 filed by
the A.P.S.R.T.C. disputing the quantum of compensation and
3 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
fixing of 75% liability, and M.A.C.M.A.No.1375 of 2011 filed
by the petitioner/claimant seeking enhancement of the
compensation and disputing the fixing of 25% liability are
directed against the very same order and decree dated
10.08.2010 passed in O.P.No.1797 of 2008 on the file of the
Motor Accidents Claims Tribunal-cum-III Additional Chief
Judge, City Civil Court, Hyderabad (for short 'the Tribunal).
2. For convenience, the parties hereinafter will be
referred to as they are arrayed before the Tribunal.
3. The brief facts of the case are as follows:
On 27.05.2008 at about 10.00 a.m., at Autonagar,
Hyderabad, while the petitioner along with her friend was
proceeding on a motorcycle, at that time, one RTC bus
bearing No.AP-11-Z-1589, driven by its driver in a rash and
negligent manner, dashed against the motorcycle. As a
result, the petitioner fell on the road and sustained grievous
injuries. The petitioner was hospitalized and she spent a
huge amount towards medical expenses. Therefore, the
petitioner filed the O.P. seeking compensation of
Rs.20,00,000/-.
4. The respondents filed a counter denying the
allegations made in the claim petition and contended that the
accident occurred due to rash and negligent driving of the
4 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
rider of the motorcycle and there was no negligence on the
part of the driver of the offending vehicle, and as such, the
respondents are not liable to pay the compensation.
5. On behalf of the petitioner, P.Ws.1 to 6 were
examined, and Exs.A1 to A.16 and Ex.X1 were marked. On
behalf of the respondents, RW.1 was examined, and no
documents were marked.
6. After hearing both sides and after considering the
material available on record, the Tribunal assessed the
compensation at Rs.10,00,000/- and after deducting 25% of
the amount towards the contributory negligence on the part of
the rider of the motorcycle, awarded an amount of
Rs.7,50,000/- to the petitioner while fixing the liability of 75%
on the driver of the offending vehicle and directed both the
respondents to pay the said amount with interest at 7.5% per
annum from the date of petition till the date of realization.
Challenging the said award, the APSRTC has filed
M.A.C.M.A.No.4342 of 2012, and the petitioner has filed
M.A.C.M.A.No.1375 of 2011.
7. Heard both sides and perused the record.
8. Learned counsel appearing for the petitioner
contended that the Tribunal ought to have considered the
5 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
future loss of earning capacity based on the permanent
disability, which was fixed at 60%. The petitioner is
unmarried and on account of skin grafting, her face and other
parts of the body were disfigured. The accident occurred due
to rash and negligent driving of the driver of the offending
vehicle alone and therefore, the Tribunal ought not to have
fixed the liability at 25% on the part of the petitioner. The
Tribunal ought to have awarded just compensation under
various heads as claimed by the petitioner. The amount
awarded by the Tribunal is very meager and unjustifiable.
9. Learned counsel for the respondents contended
that the accident occurred due to rash and negligent driving
of the rider of the motorcycle and there was no negligence on
the part of the driver of the offending vehicle and that the
Tribunal erred in fixing 75% contributory negligence on the
part of the driver of the RTC bus. He further contended that
the Tribunal erred in awarding a sum of Rs.4,50,000/- for
three grievous injuries, Rs.3,50,000/- towards medical
expenses and Rs.2,00,000/- towards loss of earnings.
10. As seen from the evidence of PW.1, she
categorically deposed that she sustained injuries, including
fractures. PW.2 Medical Officer deposed that PW.1 sustained
(1) crush injury to the right hand and forearm with loss of
6 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
dorsal tissue, exposive cut tendons, wrist joint and ulna,
crushed distal ulna, deep abrasions extended upto mid-arm
(2) fracture pelvis (3) deep abrasions involving right loin, hip
and right thigh with de-gloving from loin to right knee joint.
He further deposed that she underwent surgeries viz.,
1) wound toilet and debridement of crush injury on right
hand and forearm on 27.5.2008 (2) wound toilet and
placement of suction drains to de-gloving injuries on
27.5.2008 and (3) opposite groin flap cover to lower right fore-
arm and skin grafting to upper fore-arm on 07.06.2008.
11. The evidence of PW.3-Medical Officer also
concurred with the deposition of PW.2 and confirmed the
nature of injuries and surgeries that PW.1 underwent.
Keeping in view the gravity of fracture injuries and as the
petitioner underwent surgeries multiple times, the Tribunal
granted an amount of Rs.1,50,000/- each for grievous injury
i.e., Rs.4,50,000/- for three grievous injuries besides pain
and suffering. In the light of Exs.A-7 to A-12, the Tribunal
granted an amount of Rs.3,50,000/- towards medical
expenses.
12. The petitioner produced Ex.X-1 Disability
Certificate showing the disability at 60%. PW.3 deposed that
on account of fracture of pelvis, the petitioner will have pain
7 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
on walking and will not be able to have a normal delivery and
she had difficulty in urinating normally for about six months
and due to the said injuries, the petitioner has a disability of
about 60%, which is partial and permanent. Accordingly, the
Tribunal granted an amount of Rs.2,00,000/- towards loss of
earnings. Thus, in all, the Tribunal assessed the
compensation at Rs.10,00,000/-. The culpability for the
accident was fixed at 75% on the part of the driver of the
offending vehicle and 25% on the part of the rider of the
motorcycle. Accordingly, the Tribunal awarded an amount of
Rs.7,50,000/- to the petitioner.
13. With regard to the income, learned counsel for the
petitioner contended that the Tribunal ought to have fixed the
petitioner income at Rs.25,000/- per month as she had
completed B.Tech (Computer Science and Engineering) in first
class. In support of his contention, the learned counsel
appearing for the petitioner relied upon the judgment of the
Hon'ble Apex Court in KANDASAMI AND OTHERS Vs. LINDA
BRIYAL AND ANOTHER 1.
"4. Be that as it may, even in that circumstance, when it is
established that the deceased was an Engineering graduate
and the employment opportunities during the year 2008 is kept
in view, even on a conservative estimate, the sum of Rs. 25,000
to be reckoned would be justified. In that view, in the instant
case we would reckon the income of the deceased at Rs. 25,000
2023 ACJ 1653
8 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
per month. Towards the same, 40 per cent is to be awarded as
future prospects which would be in a sum of Rs. 10,000. Hence,
the total income would be Rs. 35,000 per month of which 50 per
cent is to be deducted, as the deceased was a bachelor. The
amount of Rs. 17,500 if taken on an annual basis and the
appropriate multiplier of '17' is applied, the amount would be in
a sum of Rs. 35,70,000. The sum of Rs. 70,000 is added
towards 'conventional heads'. Hence, the total compensation
would work out to Rs. 36,40,000. The High Court has awarded
a sum of Rs. 10,97,000. The appellants would therefore be
entitled to the enhanced compensation of Rs. 25,43,000 with
interest at 7.5% per annum from the date of the petition before
the MACT till the date of payment."
14. With regard to the disability, learned counsel for the
petitioner relied upon the judgment of the Hon'ble Apex Court in
MOHD.SABEER ALIAS SHABIR HUSSAIN Vs. REGIONAL
MANAGER, U.P. STATE ROAD TRANSPORT CORPORATION. 2
"......
13. The Appellant has suffered an amputation of the
lower right limb, a fracture in the medial wall of the bilateral orbit,
crush injury right leg, fracture tibia right leg, exposed vessels and
other injuries. As per the disability certificate, the Appellant has
suffered 70% 1 Civil Appeal No. 8420 of 2018 (Dated : August 21,
2022) 4 disability, however the High Court has held that the
Appellant has only suffered 35% loss in future earnings due to the
disability.
14. To assess the quantum of compensation to be
awarded, this Court has to assess whether the permanent
disability caused has any adverse effect on the earning capacity of
the Appellant, as held by this Court in the case of Sandeep
Khanuja Vs. Atul Dande and Anr.2 . The relevant paragraph of the
judgment is quoted hereunder :- "The crucial factor which has to be
taken into consideration thus is to assess whether the permanent
2022 SC online 1701
9 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
disability has any adverse effect on the earning capacity of the
injured. We feel that the conclusion of the MACT on the application
of aforesaid test is erroneous. A very myopic view is taken by the
MACT in taking the view that 70% permanent disability suffered
by the appellant would not impact the earning capacity of the
appellant. The MACT thought that since the appellant is a
chartered accountant he is supposed to do sitting work and
therefore his working capacity is not impaired..... A person who is
engaged and cannot freely move to attend to his duties may not be
able to match the earning in comparison with the one who is
healthy and bodily able. Movements of the appellant have been
restricted to a large extent and that too at a young age.
16. The Appellant herein has suffered permanent
disability of 70% and has an amputated right lower limb amongst
other injuries. The High Court has wrongly taken the view that the
Appellant has only suffered 35% functional disability. The
Appellant is not a salaried person but is self-employed who
manages his business. For the Appellant to be able to augment his
income, he is most definitely required to move around. The
Appellant can also not drive on his own, which hinders his mobility
further. This proves that the functional disability of the Appellant
will severely impact his earning capacity, and the 35% 2 (2017) 3
SCC 351 3 (2011) 1 SCC 343 5 functional disability calculated by
the High Court is incorrect in the facts and circumstances of the
case and in our view the loss of future earning capacity must be
calculated at 60%."
15. The above judgments are with regard to the
functional disability and its assessment. But, in the present
case, the disability is fixed based on the Doctor Certificate as
the petitioner suffered permanent partial disability.
Therefore, the above judgments are not applicable to the case
on hand.
10 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
16. In the instant case, this Court is inclined to accept
the Disability Certificate in view of the condition of the
petitioner and fix the disability at 60%, as the Courts have no
power either to increase or to decrease the disability and
moreover, the petitioner has produced Ex.X1-Disability
Certificate. The Tribunal did not add future prospects on the
income of the petitioner, as per the decision of the Hon'ble
Supreme Court in National Insurance Company Ltd. V.
Pranay Sethi 3, as such, 40% of future prospects on the
income is added, as the petitioner was aged 19 years at the
time of the accident. The monthly income comes to
Rs.35,000/- (Rs.25,000/- + 40%). As per Sarla Verma V.
Delhi Transport Corporation 4 the correct multiplier
applicable for the age group 15-25 years is '18'. Thus, the
petitioner is entitled to a sum of Rs. Rs.45,36,000/-
(Rs.35,000/- x 12 x 18 x 60%) towards disability. As the
petitioner stated that she took bed rest for six months, this
Court is inclined to award a sum of Rs.1,50,000/-
(Rs.25,000/- X 6) towards loss of earnings.
17. With regard to the grievous injuries, the Tribunal
without going into the veracity of the injuries, erroneously
awarded an amount of Rs.1,50,000/- for each grievous injury
(2017) 16 SCC 680.
2009 ACJ 1298.
11 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
i.e., Rs.4,50,000/- for three grievous injuries, besides pain
and suffering, which is on the higher side and the same has to
be reduced. Accordingly, this Court is inclined to grant an
amount of Rs.20,000/- each for grievous injury i.e.,
Rs.60,000/- for three grievous injuries. Further, since the
petitioner has suffered a lot due to the injuries sustained by
her, this Court is inclined to grant an amount of
Rs.1,90,000/- towards pain and suffering. The Tribunal
granted an amount of Rs.3,50,000/- towards medical
expenses, which needs no interference by this Court. The
Tribunal did not grant any amount towards transportation,
extra nourishment, attendant charges and loss of amenities.
This Court is inclined to award an amount of Rs.10,000/-
towards transportation, Rs.25,000/- towards extra
nourishment and Rs.1,50,000/- towards loss of amenities.
Since the petitioner suffered for six months, she might have
taken the assistance of attendant to attend her regular works.
So, this Court is inclined to award an amount of Rs.50,000/-
towards attendant charges. Therefore, the total comes to
Rs.55,21,000/-.
18. With regard to the negligence, after hearing the
matter, based on evidence, the Tribunal came to a conclusion
that there is negligence on both sides and accordingly, fixed
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MACMA Nos.1375 of 2011 & 4342 of 2012
75% liability on the part of the driver of the offending vehicle
and 25% liability on the part of the rider of the motorcycle.
19. With regard to contributory negligence, learned
counsel appearing for the petitioner relied upon the judgment
of the Hon'ble Apex Court in KHENYEI Vs. NEW INDIA
ASSURANCE COMPANY LIMITED AND OTHERS 5, wherein
the Hon'ble Apex Court held as follows :-
"26. On the same principle, in the case of joint tort- feasors
where the liability is joint and several, it is the choice of the
claimant to claim damages from the owner and driver and
insurer of both the vehicles or any one of them. If claim is made
against one of them, entire amount of compensation on account
of injury or death can be imposed against the owner, driver and
insurer of that vehicle as their liability is joint and several and
the claimant can recover the amount from any one of them.
There can not be apportionment of claim of each tort- feasors in
the absence of proper and cogent evidence on record and it is
not necessary to apportion the claim."
20. In the instant case, though the rider of the
motorcycle did not receive any injuries in the accident, he did
attempt to overtake the bus from the left side at a high speed
and upon seeing a lorry coming in the opposite direction on
wrong side of the road, he attempted to apply brake suddenly.
Resultantly, the rider of the motorcycle and the petitioner fell
on the road and the petitioner came under the rear side of the
wheel of the bus. Had the rider of the motorcycle not over
(2015) 9 Supreme Court Cases 273
13 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
taken the bus from the left side at a high speed, the accident
would not have occurred. The same was concurred by the
evidence of RW.1, who deposed that the petitioner fell down
on the right side of motorcycle and came under the rear left
side wheel of our bus. He observed the same in the vision
mirror, and immediately he stopped the bus. The rider of the
motorcycle escaped from the spot. The petitioner received
injuries and was shifted to the hospital.
21. As per the evidence of RW.1, there was a
contributory negligence on the part of the rider of the
motorcycle. The Tribunal fixed the contributory negligence at
25% on the part of the petitioner and 75% on the
respondents. Therefore, the Tribunal rightly appreciated the
evidence with regard to the contributory negligence and fixed
25% on the petitioner and 75% on the respondents, which
needs no interference by this Court. Considering the
contributory negligence on the part of the petitioner @ 25%,
the petitioner is entitled to an amount of Rs.41,40,750/-
(Rs.55,21,000/- (-) Rs.13,80,250/-)
22. Though the claimed amount is Rs.20,00,000/-,
invoking the principle of just compensation, and in view of the
law laid down by the Hon'ble Supreme Court in Rajesh vs.
14 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
Rajbir Singh 6, and in a catena of decisions, this Court is
empowered to grant compensation beyond the claimed
amount.
23. Thus, the petitioner is entitled to the enhanced
compensation of Rs.41,40,750/- as against the awarded
amount of Rs.7,50,000/-.
24. Accordingly, the M.A.C.M.A.No.1375 of 2011 filed
by the petitioner is allowed enhancing the compensation
amount from Rs.7,50,000/- to Rs.41,40,750/- (Rupees forty
one lakh, forty thousand, seven hundred and fifty only) with
costs and interest @ 7.5% p.a on the enhanced amount from
the date of petition till the date of realisation. The
respondents are directed to deposit the awarded amount
along with interest and costs, after deducting the amount if
any already deposited, within two months from the rate of
receipt of a copy of this judgment. On such deposit, the
petitioner is permitted to withdraw the same. However, the
petitioner is directed to pay the deficit court fee within a
period of two months from receipt of a copy of this judgment.
25. M.A.C.M.A.No.4342 of 2012
In view of the above findings in
M.A.C.M.A.No.1375 of 2011, which is decided in favour of the
MANU/SC/0480/2013
15 RRN,J
MACMA Nos.1375 of 2011 & 4342 of 2012
petitioner, this M.A.C.M.A.No.4342 of 2012 filed by the RTC
is hereby dismissed.
Miscellaneous petitions, if any are pending, shall
stand closed.
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
16th day of December, 2023
L.R.Copy to be marked
(B/o)
Prv
