Telangana High Court
The Andhra Pradesh State Road Transport ... vs Shamita Nagalla And 2 Others on 7 June, 2024
Author: N. Tukaramji
Bench: P.Sam Koshy, N.Tukaramji
HONOURABLE SRI JUSTICE P. SAM KOSHY
AND
HONOURABLE SRI JUSTICE N. TUKARAMJI
M.A.C.M.A.No.1131 OF 2015
JUDGMENT:
(per Hon'ble Sri Justice N. Tukaramji)
This appeal has been preferred by the respondent/APSRTC
questioning the liability and the quantum of compensation granted in the
decree and award dated 27-12-2014, in MVOP No. 406 of 2012 passed by
the XXVII Additional chief judge-cum-Chairman, Motor Vehicle Accident
Claims Tribunal, City Civil Courts, Secunderabad.
2. Heard Mr. Sudarshan Reddy, learned senior counsel appearing for
the standing counsel for the appellant/APSRTC and Mr. A Sudhakar Rao
learned counsel appearing for the respondent/Claim petitioner.
3. For the sake of facility, the parties herein after referred to with their
rank before theTribunal.
4. The relevant facts in brief are that, on 13.06.2009, while Ms.Shamita
Nagalla/petitioner along with her mother was travelling in a Honda city car
bearing registration number AP 37 AL 7227 (for short 'the car') near the
circle, leading to Prattipadu, a bus of the respondent/APSRTC bearing
registration number AP 11 Z 860 (for short the bus) came in rash and
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negligent manner and at high speed abruptly turned the bus without any
signal or indicator. In the meantime, the car, which was proceeding straight
on highway rammed into the bus, which resulted in grievous injuries to the
petitioner and the death of her mother. The police registered a crime and
charge sheeted the driver of the bus. Thereupon, the petitioner claiming
medical expenditure, future expenses, and other heads filed petition
seeking compensation of Rs.90 lakhs. The Tribunal by considering the
materials placed on record awarded Rs.72,92,713/- with interest at 7.5%
per annum from the date of petition till realization against the
respondent/APSRTC.
5(a) In appeal, learned senior counsel appearing on behalf of the
appellant/respondent/APSRTC (hereinafter, 'the respondent') would submit
that the Tribunal gravely erred in concluding the rash and negligent driving
of the driver of the bus without proper appreciation of facts and
circumstances on record. It is evident that the car struck the bus at left rear
foot board, while taking turn at Prattipadu Junction. By common
knowledge, it can be construed that a vehicle of the size of a bus cannot
move at high speed while taking turn. Indeed, the car striking the bus at
the rear board is indicating that the bus had almost crossed the road, but
the car came in uncontrollable speed and struck the bus and this situation
is explicating the negligent driving of the car, rather the bus.
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5(b) Further contended that the presence of eye witness/PW4 is not
reflected in the Police record, indicating the chance of planting his
presence. Nonetheless, in criminal the case the driver of the bus was
acquitted and the judgment in categorical terms recorded that there was no
negligence of the driver of the bus in the accident. In addition the driver
and conductor of the bus as RWs.1 and 2 deposed that, while the bus
negotiating turn, they have taken all possible precautions. The tribunal by
considering this material should have held that there was no negligent
driving of the bus and exonerated the respondent.
5(c) That apart, the tribunal should have considered the fact that every
citizen of USA will have coverage under Health insurance policy, as such,
the petitioner would have got reimbursement of the pleaded medical
expenditure. The tribunal without evidence and proper deliberation on
these aspects granted excess amount towards future medical necessities
particularly for correction of disfiguration. Above all, the tribunal had
leniently awarded exorbitant amounts under different heads, without
substantiating material.
5(d) All things considered, at the best, the Tribunal should have
considered contributory negligence at minimum extent on the part of the
bus. The Tribunal ought to have considered the settled legal positions
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while awarding compensation in the cases of foreign nationals. Thus,
prayed for interference and to exonerate the liability of the respondent.
6. In support to the pleadings, learned senior counsel, cited the
authorities (a) United India insurance company Ltd and others v. Patricia
Jean Mahajan 2002 6 SCC 281 and pleaded that Honourable Supreme
Court has clarified in the authority that the exchange rate of dollar against
rupee is relevant only for compensation of the amount of loss of
dependency and has to scale down the multiplier by considering the
economic situation of both the nations. (b) Oriental insurance company
Limited v. Deo Patodi and others, 2009 13 SCC 123 to point out that, the
deceased though got employment in USA, held that considering the
cost/standard of living of the western countries cannot be followed in
assessment of income and in case, the victim was earning salary in US
dollars, a lower multiplier has to be applied. (c) In Chenderi Devi and
another v. Jaspal Singh and others 2015 11 SCC 703 pleaded that, the
Hon'ble Supreme Court, while considering a case of deceased Indian cook
who was working in a restaurant in Germany, instead of salary in Euros, by
estimating how much a cook of similar nature would have earned in India
in the relevant year, fixed monthly income of the deceased. Hence, prayed
for, notionally fixing the income in Indian terms to assess the
compensation.
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6(a). The counsel for the claim petitioners refuted the contentions raised
by the respondent/APSRTC and pleaded that the evidence of the injured
witness/PW1 and the eyewitness/PW-2, coupled with the facts elicited in
the cross examination of the driver and conductor of the bus/RWs. 1 and 2
are suitably proving the negligent driving of the bus in the accident. Further
the judgment of criminal Court is not binding on the tribunal and the fact of
negligence and the compensation are to be independently discerned by
the materials brought on to record. By these requirements, the tribunal
had properly reasoned the evidence in determining the rash and negligent
driving of the bus and awarded the compensation. Thus, no merit in the
appeal.
6(b). Further, the medical expenditure awarded was the amount actually
incurred for treatment in USA and the medical necessities were aptly
considered as per the statement of the doctor in granting future medical
expenses, and the other amounts awarded are just and reasonable.
Therefore, the grounds urged by the respondent in appeal are devoid of
merit and liable to be dismissed.
7. We have considered the submissions made by the learned counsel
and perused the materials on record.
8. The accident, involvement of the vehicles, injuries to the petitioner
and the treatment undergone are not in dispute. Likewise, the manner of
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occurrence, the fact that while the bus was taking turn towards Prattipadu
from the Highway, the car crashed into the bus near its rear footboard are
in agreement.
9. The counsel for the claim petitioners refuted the contentions raised
by the respondent/APSRTC and pleaded that the evidence of the injured
witness/PW1 and the eyewitness/PW-2, coupled with the facts elicited in
the cross examination of the driver and conductor of the bus/RWs. 1 and 2
are suitably proving the negligent driving of the bus in the accident. Further
the judgment of criminal Court is not binding on the tribunal and the fact of
negligence and the compensation are to be independently discerned by
the materials brought on to record. By these requirements, the tribunal
had properly reasoned the evidence in determining the rash and negligent
driving of the bus and awarded the compensation. Thus, no merit in the
appeal.
10. By the record, it is evident that the accident occurred on the National
highway while the bus from its assigned lane on highway, while crossing
the roadway of opposite vehicles on the highway to reach the road of
Prattipadu, on which the car was proceeding the accident occurred.
11. In this position, the car, which was running on its way on national
Highway i.e., the roadway of the opposite lane to the bus, shall have right
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of way. Therefore, the driver of the bus is endowed with responsibility to
take every care and caution while crossing the specified road way of the
opposite vehicles, in taking turn, more particularly on the national Highway.
It is common knowledge that the national highways are designed for
conveyance of vehicles at certain speed. As such, only on confirmation
that there are no vehicles on the road way of the opposite lane of the
Highways, the driver of the bus should have crossed the road obliging the
vehicles right of way on that road.
12. However, the RWs.1 and 2 had categorically stated that, while taking
turn the conductor of the bus stood on the front foot board and instructed
the driver while taking turn. Nonetheless, in the cross examination
admitted that, they did not even observe the car. It is also admitted that the
place of occurrence is a national Highway with four lane with heavy traffic.
13. In this admitted position, when the bus has to horizontally cross the
road blocking the roadway of the national Highway against the right of way
of the vehicles plying on that lane, the level of care, caution and
responsibility multiplies on the driver of the bus. But the statement that
they did not even observe the car, itself is explaining the Care taken by the
driver of the bus, while crossing the National Highway.
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14. These facts are amply establishing that the driver of the bus failed to
take the peremptory care expected from a dutiful driver under the similar
circumstances. As the conduct of the driver of the bus lacked reasonable
care inexercising the legal duty owed on him to foresee and avert the
harm, and in spite of the burden of necessary precautions to eliminate or
reduce the risk of harm, as he had acted in breach of his duty of care
towards the vehicles plying on their assigned roadway, particularly against
the car, it shall be held that, only for the negligent driving of the bus, the
accident occurred. As such, the liability of the respondent/APSRTC to
make good loss to the petitioners stands established.
15. Viewed from another angle, the appellant has not proposed any act
of rashness or negligence on the part of the deceased. Indisputably the
deceased was only the occupant of the car. Even if a fraction of rashness
or negligence of the driver of the car is taken into account, at the best the
accident has to be held as one resulted out of composite negligence of the
drivers of bus and the car. Thus, from the point of petitioners/claimants'
view, in the case of composite negligence they are legally entitled to claim
compensation from either of the vehicles involved in the accident.
Therefore the petitioners' claim against the bus for compensation and its
liability to pay the compensation are perfectly justified and the respondents
cannot claim exception to absolve its liability.
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16. For the aforesaid, rash and negligent driving of the bus in causing
accident, and consequent fastening of the liability against the
respondent/APSRTC determined by the tribunal deserves to be and is
accordingly affirmed.
17. In regard to the compensation, the Tribunal by considering the
treatment undergone and the expenses incurred in India and USA and
probable future expenses were awarded at Rs.47,92,713/- in conversion of
the amount incurred in terms of U.S. Dollars as per the evidence of the
Doctor/P.W.3 and the medical bills/Exs.A.1 to A.13, Exs.A.15 to Ex.A.17.
As the expenditure was in U.S.A. in terms of Dollars and as the petitioner
is permanent resident of U.S.A. reimbursing the same and her future
treatment for fixing disfiguration would also be at her place, granting
amount to meet the requirement in the same terms, in Indian currency is
found perfectly justified. Further the amounts granted under other heads
such as permanent disfiguration, pain and suffering, extra-nourishment
and effect on marriage prospects were considered in regular terms. Thus,
we find no impropriety or illegality in exercise of jurisdiction by the Tribunal
while awarding the compensation. That being the position, we find no
reason to interfere with the impugned order. In absence of tenable
grounds, the appeal fails on merit.
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18. In the result, the appeal is dismissed. No costs.
As a sequel, pending miscellaneous petitions if any, stands closed.
_______________
P. SAM KOSHY, J
_______________
N.TUKARAMJI, J
Date: 07.06.2024
skj
