Telangana High Court
K.Bal Reddy vs A.P.State Road Transport ... on 21 February, 2023
Bench: Namavarapu Rajeshwar Rao
1 RRN,J
MACMA No.2352 of 2014
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.2352 OF 2014
JUDGMENT:
This MACMA is filed under Section 173 of the Motor Vehicles
Act, 1988 by the claimant seeking enhancement of compensation,
aggrieved by the order and decree dt.17.09.2007 passed in
M.V.O.P.No.41 of 2005 by the XVIII Additional Chief Judge, City Civil
Court, Hyderabad (for short "the Court below").
2. For the sake of convenience, the parties will be hereinafter
referred to as they are arrayed before the Court below.
3. Brief facts of the case are that on 20.09.2004 at about 5 p.m.,
while the petitioner was proceeding on Suzuki Motorcycle bearing
No. AP-28-S-1738 as a pillion rider from Gowraram Village to Gajwel,
and when he reached Muthrajpalli Crossroads, the driver of RTC Bus
bearing No.AP-11-Z-486 drove it in a rash and negligent manner at high
speed and hit the motorcycle on which the petitioner was travelling in the
opposite direction, due to which, the petitioner fell down and sustained
fracture and bleeding injuries all over his body. Immediately, he was
shifted to Gandhi Hospital, Secunderabad where he was admitted as
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inpatient and underwent surgery of open reduction internal fixation (nail)
fixed in his left leg and skin grafting and discharged on 27.09.2004 and
again admitted on 30.09.2004 and underwent another surgery and was
discharged on 19.11.2004. The petitioner is still taking treatment for the
injuries. At the time of the accident, the petitioner was aged 28 years,
doing agriculture and supervisor of borewell and earning Rs5,000/- per
month. Due to the injuries, he became permanently disabled and lost the
capacity of earning. Therefore, he laid the claim against the respondents
seeking compensation of Rs.3,00,000/-.
4. The respondents filed a written statement denying the
petition allegations and mainly contended that the accident was as a
result of the rash and negligent driving of the petitioner. Due to the triple
riding of the motorcycle, the rider of the motorcycle could not control the
brake and the movement of the hands and thereby causing the accident.
5. The Tribunal framed the following issues:
i) Whether the petitioner sustained injuries in the accident that
took place due to rash and negligent driving of the driver of the
Bus bearing No.AP-11-Z1-486 by the respondent No.1 vehicle?
ii) Whether the petitioner is entitled for compensation? If so, to
what amount and from whom?
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iii) To what relief?
6. The petitioner to prove his case, examined PWs.1 and 2 and
got marked Exs.A1 to A14. On behalf of the respondents, the driver of
the Bus was examined as RW-1 but no document was marked. Ex.X1
was marked as a Court document.
7. After considering the oral and documentary evidence available
on record, the Court below concluded that the petitioner contributed
negligence in causing the accident and as such, the Court below fixed
the ratio of negligence upon the driver of the Bus and the petitioner at
75:25 respectively and out of the amount which the petitioner was
originally entitled to i.e Rs.1,40,000/-, the Court below awarded the
petitioner Rs.1,05,000/- owing to his part of negligence at 25%
(Rs.1,40,000/- - Rs.35,000/-) with proportionate costs and interest @
7.5% per annum. Hence, the present appeal.
8. Heard both sides and perused the record.
9. Learned Counsel for the petitioner contended that the Court
below erred in concluding that both vehicles are at fault but the charge
sheet was laid against the driver of the RTC Bus alone. He also
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contended that the amounts awarded under various heads are also very
meagre and 25% disability as per Ex.A6 was not considered along with
the application of the multiplier method.
10. Per contra, learned Counsel appearing for the respondents
would contend that the Tribunal was justified in fixing the compensation
and the liability and prayed to dismiss the appeal.
11. The ground raised by the learned Counsel for the petitioner
with regard to the liability being attributed to the petitioner owing to his
contribution to the negligence which was assessed at 25% by the Court
below is that the charge sheet was laid against the driver of the Bus and
it is deemed that the driver of the bus himself was solely responsible for
the accident. The Court below discussed the decision of this Court in
United India Insurance Company Limited vs. K. Anjaih1, where in a
case of an accident involving a lorry and a scooter which was being
driven by its rider along with two pillion riders, this Court attributed
contributory negligence on part of the driver of the scooter and assessed
his part of liability at 25%.
12. As seen from the evidence on record, there is ample evidence
to show that there was another pillion rider on the motorcycle being
2004 (4) ALD 444.
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driven by the rider and the ground raised by the petitioner with regard to
the charge sheet against the driver of the bus, cannot be taken into
consideration in view of the decision stated supra. When the very
legislation under which the petitioner is claiming compensation is
contravened by the petitioner along with the rider of the motorcycle and
the other pillion rider, the petitioner cannot expect the Courts to interfere
with a legally sustainable order either sympathetically or otherwise, in
order to evade from liability which accrued upon him due to the
contributed negligence. Hence, this Court is not inclined to set-off the
liability cast upon the petitioner as assessed by the Court below.
13. Learned Counsel for the petitioner further raised a ground
vis-ā-vis the income of the petitioner, however, in the absence of any
evidence, the Court below was justified in assessing the same at
Rs.3,000/- p.m. The same was not considered by the Court below for the
purpose of calculating future loss of earnings using the multiplier
method as the Court below found that Ex-A6 disability certificate @ 40%
was issued on 02.08.2005 and the claim petition was filed in the month
of December 2005 and the petitioner could've filed the certificate along
with the O.P and concluded that EX-A6 was brought into existence only
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for the purpose of the claim and further discarded the evidence of P.W2
doctor.
14. Merely because Ex-A6 was not filed at the time of institution
of the O.P, the bonafide of the petitioner cannot be adversely concluded
in the absence of concrete evidence that such a disability certificate was
brought into existence merely for the purpose of gaining compensation.
As seen from Ex-A6, it was issued by the Medical Board assessing the
disability of the petitioner at 40%, which cannot be doubted at all. As
such, the Court below erred in not applying the multiplier method to
assess the loss of future earnings of the petitioner. The Court below
awarded a lump sum of Rs.75,000/- towards loss of earnings and
disability which is hereby substituted with the foregoing calculation.
15. The monthly income of the petitioner was assessed @
Rs.3,000/- and this Court is inclined to consider the same. The annual
income of the petitioner would be Rs.36,000/-(Rs.3,000 x 12). The
petitioner was not awarded future prospects and the same at 40% as per
the decision of the Hon'ble Supreme Court in National Insurance
Company Limited vs. Pranay Sethi and others2 is to be considered.
Therefore, the future prospects of the petitioner comes to Rs.50,400/-
2 (2017) 16 SCC 680.
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(36,000 + 14,400/-). The disability of the petitioner is 40% as per Ex-A6
and this Court would consider the same. As such, 40% is to be
considered on account of disablement (Rs.50,400 x 40/100) = 20,160/-,
the appropriate multiplier is 17 as per Sarla Verma3 as the petitioner is
aged 28 years. Thus, the loss of future earnings of the petitioner would
come to Rs.20,160/- x 17 = Rs.3,42,720/-.
16. The Court below awarded compensation to the petitioner
under other heads, and the same are justified, except that of the above
discussed head of 'loss of earning and disability' which is clarified and
substituted by this Court in the preceding paragraph.
17. As such, this Court is of the considered view in granting
compensation to the petitioner as against the compensation amount
granted by the Tribunal as follows:
Head Amount awarded by Amount entitled
Tribunal /awarded by this
Court
Extra nourishment Rs. 5,000/- Rs. 5,000/-
Loss of earrings and Rs.75,000/- Rs. 3,42,720/-
disability
Medicines Rs.26,000/- Rs. 26,000/-
Pain and suffering Rs.20,000/- Rs. 20,000/-
Expenses towards Rs.10,000/- Rs10,000/-
operation
Transportation Rs.4,000/- Rs. 4,000/-
(2009) 6 SCC 121
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Total Rs.1,40,000/- Rs.4,07,720/-
But awarded But awarded
Rs.1,05,000/- Rs.3,05,790/-
(Deducting 25% (Deducting 25% owing
owing to the to the petitioner's
petitioner's negligence.
negligence.
18. Accordingly, the M.A.C.M.A. is allowed in part, enhancing the
compensation amount awarded by the Tribunal from Rs.1,05,000/- to
Rs.3,05,790/- (Rupees Three Lakh and Five Thousand, Seven hundred
and ninety only) with the interest of 7.5% from the date of petition till
the date of realization. The respondents shall deposit the said
compensation amount together with interest and costs after giving due
credit to the amount already deposited, if any, within a period of two
months from the date of receipt of a copy of this judgment. The
petitioner/appellant is directed to pay the deficit Court within one month
from the date of receipt of the copy of this Order. There shall be no order
as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
21st day of February, 2023
BDR
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MACMA No.2352 of 2014
