Telangana High Court

Apsrtc., Now Tsrtc vs Jangirala Shankaramma And Another on 20 February, 2025

     THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA

                M.A.C.M.A.No.256 of 2020

JUDGMENT:

This M.A.C.M.A. is preferred by appellant/

A.P.S.R.T.C. (now T.S.R.T.C.) questioning the grant of

claim by the Tribunal in M.V.O.P.No.640 of 2014, dated

12-09-2019 on the file the Chairman, Motor Vehicles

Accident Claims Tribunal - cum - I Additional District

Judge, Karimnagar (hereinafter referred to 'Tribunal')

mainly on the ground that quantum of compensation is

excessive.

2. For convenience, the parties will be hereinafter

referred to as they are arrayed before the Tribunal.

3. The brief facts of the case are that claimant -

respondent No.1 herein earlier filed M.V.O.P.No.640 of

2014 under Section 166 (1)(a) of the Motor Vehicles Act,

1988 (for short, 'the Act, 1988) seeking compensation of NNR,J MACMA.No.256 of 2020

Rs.15,00,000/- for the injuries sustained by her in the

motor accident, which took place on 06.02.2011.

4. On 06-02-2011 at about 21.00 hours when the

petitioner/ injured boarded the RTC bus bearing

No.AP-11-2-6456, route 49-M. The driver started the bus

in rash and negligent manner, due to the which

petitioner fell on the road and RTC bus wheel ran over

her leg, due to which she sustained following injuries

viz., 1) Crush and degloving injury left thigh, 2) Crush

and degloving injury left foot, 3) Fracture of First Med

Tarsal Bone, 4) Amputation of left great toe. Immediately

she was shifted to Gandhi Hospital in 108 ambulance for

necessary treatment. Where she obtained first aid from

there she was shifted and admitted in Apollo Hospital,

Jubliee Hills, where she was treated and underwent

surgery and 3k wire fixation to left first metatarsal was

done, Skin graft was done. She was under treatment from

07.02.2011 to 19.02.2011 as in-patient and she was

discharged on 25.04.2011. For the said treatment she NNR,J

incurred an amount of Rs.7,50,000/- towards treatment

and medicines and extra nourishment etc. Police

registered a case under Section 337 of IPC against the

Driver of RTC bus i.e., respondent No.2 and after

investigation, it is found that the said accident was

occurred due to the negligence on the part of the driver of

the RTC bus, as such, she claimed an amount of

Rs.15,00,000/- towards compensation under various

heads.

5. Respondent No.1 - driver did not chose to file any

counter and he was set ex parte. Respondent No.2 -

corporation has filed counter opposing the relief claimed.

It also denied the allegations made by the claimant,

manner of accident, age and income of the claimant and

also the disability. Respondent No.2 - corporation also

denied the rash and negligent driving of driver of bus. It

is further contended that the amount of compensation

claimed by the claimant - injured is excessive.

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6. Basing on the pleadings, learned Tribunal framed

the following issues:

1. Whether the accident was occurred due to rash and negligent driving of the offending vehicle APSRTC Bus No.AP-11-Z-6456?

2. Whether the petitioner is entitled for compensation as prayed for and against whom?

3. To what relief?

7. After going into the merits of the case, leaned

Tribunal has came to the conclusion that the said

accident was occurred due to the rash and negligent

driving of respondent No.1 - driver of RTC bus. Basing on

the oral and documentary evidence available on record

and considering the pleas made by both the parties,

learned Tribunal, partly allowed the petition and awarded

compensation of Rs.6,51,528/- to the claimant - injured

along with proportionate costs @9% per annum.

8. Being aggrieved by the same, the present

M.A.C.M.A. is filed by respondent No.2 - corporation on

the following grounds:

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That there is no negligence on the part of the driver

and the said accident occurred because of the negligence

on the part of the claimant herself as she tried to board

the running bus and fell down on her own and sustained

injuries, which the learned Tribunal did not consider the

same. Claimants could not place any evidence to show

that the accident was occurred due to the negligence of

the driver of RTC i.e., respondent No.1 and that without

there being any evidence, the learned Tribunal awarded

compensation for loss of future earnings and for

permanent disability and also erred in awarding interest

@ 9% per annum.

9. Heard Ms.Bhavishya Amagoni, learned counsel

representing Sri N. Chandra Shekar, learned Standing

Counsel for TGSRTC and Sri Ch. Venkat Narayana,

learned counsel representing Sri K.S. Murthy, learned

counsel appearing for respondent No.1 - claimant.

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10. Perused the entire material placed on record and

the record submitted by the learned Tribunal.

11. Learned Standing Counsel would contend that

learned Tribunal awarded compensation under the head

'permanent disability' without any basis and without

there being any Disability Certificate, assuming the

disability at 40% purely basing on the oral evidence of

injured - claimant. He would also contend that learned

Tribunal did not consider the age of the petitioner,

though she was aged about 60 years at the time of

accident. There is no negligence on the part of the driver

of bus.

12. Whereas, learned counsel appearing for the

claimant / respondent No.1 herein supporting the

judgment passed by the learned Tribunal would contend

that the Tribunal after considering the entire oral and

documentary evidence available on record and also the

evidence of PW-2, who treated the injured - claimant NNR,J

granted compensation and there is no need to interfere

with the same.

13. Now the points which are under consideration are:

1. Whether the Tribunal was right in awarding the compensation? And

2. Whether the said Award is liable to be set aside? If so,

3. To what relief?

Point Nos.1 and 2:

14. There is no dispute with regard to the incident /

accident and the injuries received by the claimant.

Respondent No.2 - corporation contended that there is no

negligence on the part of Driver of the bus and there is

negligence on the part of claimant - injured.

15. As seen from the record, claimant - injured

examined herself as PW-1. She deposed that when she

was about to board the bus near Secunderabad bus

stand to go to Mehadipatnam, suddenly the respondent

No.1 (driver) of bus bearing No.AP-11-2-6456, route

No.49 started the bus without taking any precautions in

rash and negligent manner, due to the which she has fell NNR,J

on the road and bus wheel ran over her leg, due to which

her leg's skin was peeled out and she received the

injuries. On lodging of a complaint by her son, Police,

Gopalapuram, registered a crime under Section 337 of

IPC and after examining LWs.1 to 4 the concerned

Investigating Officer came to the conclusion that the said

accident occurred due to the rash and negligent driving of

the driver of the said bus and he was charged for the

offence punishable under Section 337 of IPC.

16. On perusal of cross-examination it clearly indicates

that there is no denial about the involvement of the said

bus, in the accident, which was driven by respondent

No.1 - driver. Therefore, considering the entire evidence

of PW-1, documents and the charge sheet and also

considering the injuries sustained by the petitioner, it

clearly goes to show that the said accident occurred only

due to the rash and negligent driving of driver of the bus.

As such, the contention of the appellant/ Respondent NNR,J

No.2 - corporation that there is no negligence on the part

of the driver of the bus cannot be accepted.

17. Burden lies on the appellant to prove the

negligence on the part of injured - claimant. Except

denying negligence on the part of respondent No.1 and

imposing negligence on the part of the claimant there is

no rebuttal evidence is placed to show that the said

accident was occurred due to the negligence of

claimant - injured. In the absence of any rebuttal

evidence, the findings of learned Tribunal cannot be

found fault and nothing has been placed before this

Court to interfere with the said finding given by the

Tribunal in respect of negligence on the part of the

Driver of the RTC bus.

18. The other aspect which the learned counsel would

contend that the compensation amount of

Rs.6,51,528/- awarded by the Tribunal is exorbitant.

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19. The claimant - injured claimed the following

amounts totalling to Rs.15,00,000/- towards

compensation under different heads as under:

SPECIAL DAMAGES a. Loss of earnings Rs.10,000/-

b. Partial loss of earnings Rs.50,000/- c. Transportation to hospital Rs.50,000/-

d.   Extra-nourishment                         Rs.80,000/-
e.   Damages to clothings and articles         Rs.7,50,000/-
f.   Hospital bills                            Rs.20,000/-


                 GENERAL DAMAGES
a.   Compensation for pain and suffering       Rs.1,00,000/-
b.   Compensation for continuing and           Rs.2,00,000/-
     permanent disability
c.   Compensation for mental agony and         Rs.50,000/-
     suffering
d.   Compensation for loss of earning          Rs.1,00,000/-
     powers

20. Learned Tribunal awarded compensation as follows:

a. Loss of future earnings Rs.64,800/- b. Transportation to hospital Rs.24,000/-

c.   Accommodation                             Rs.10,000/-
d.   Extra-nourishment                         Rs.50,000/-
e.   Pain and suffering                        Rs.1,00,000/-
f.   Permanent disability                      Rs.2,00,000/-
g.   Fixing of artificial toe                  Rs.2,00,000/-
h.   Cash given by claimant                    Rs.2728/-
     TOTAL                                     Rs.6,51,528/-
                                                         NNR,J

21. The main grievance of the appellant / corporation is

that without there being any Disability Certificate,

learned Tribunal has quantified / assessed her

permanent disability at 40%. Claimant did not place any

evidence to show that she sustained 40% disability and

there is no proof for the same.

22. Perusal of the record also shows that besides

examining claimant / injured herself as PW-1, she also

examined PW-2 - Doctor, who treated for the injuries

sustained by her. Ex.A-9 is the discharge summary

issued by the hospital. In the evidence of PW-2 - Doctor

and also in Ex.A-9 nothing was elicited to show that

claimant - injured has received 40% disability, which

reads as follows:

"Pw1 J. Shankaramma was admitted on 07/02/2011 in Apollo Hospital in Hyderabad. I am working as Plastic Surgeon since last 21 years in Apollo Hyderabad. She was admitted following injuries.

1) Crush and Degloving injury of left thigh.

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2) Crush and Degloving injury over dorsum of left foot.

3) Fracture of first metatarsal bone of left foot.

4) Total Traumatic Amputation of left great toe at pip joint level.

Along with the following doctors were also involved in her treatment. 1) Dr. Pramathi Reddy 2) Dr. Ramachandra Murthy 3) Dr. Balavardhan Reddy 4) Dr. Narayana Reddy.

She was operated twice, ones on 8/02/2011 and on other day 01/04/2011. On 08/02/2011 under general anesthesia with oral ETT, Wound debridement + Kollagen application fracture of lateral condyle of left tibia + 3 k wire fixation to left first + ORIF of metatarsal was done. On 11/2/2011 skin grafting was done. She was discharged on 19/02/2011. Again she was admitted on 01/04/2011.

On 12/04/2011 skin grafting was done. She was discharged on 18/04/2011. She will have permanent difficulty in walking due to lose of great toe. At the time of discharge on 18/04/2011 she was advised to take one month bed rest. EX A9 (discharge summary) is issued from our hospital."

NNR,J

23. It is also evident from Ex.A-9 discharge summary

about the said fractures / injuries sustained by the

claimant in the accident. But, there is no whisper of 40%

disability in Ex.A-9 - Discharge Summary.

24. But, in the present case, except the oral contention

of PW-1 (petitioner) that she suffered 40% disability there

is no documentary proof. No doubt as per Section 142 of

the Act, permanent disability reads as follows:

"For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of section 140 if such person has suffered by reason of the accident, any injury or injuries involving--

1. permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or

2. destruction or permanent impairing of the powers of any member or joint; or

3. permanent disfiguration of the head or face."

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25. Though Section 92-C of the Act, 1988 provides for

what amounts to permanent disablement, which reads as

follows:

"92C. Permanents disablement: For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of section 92A if such person has suffered by reason of the accident any injury or injuries involving--(a)permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or(b)destruction or permanent impairing of the powers of any member or joint; or(c)permanent disfiguration of the head or face."

26. Though if the injury sustained by the petitioner i.e.,

Amputation of left great toe amounts to physical

disability, but so as to assess the functional disability

and also computation of permanent disability and loss of

earning power. The law requires that the percentage of

disability has to be assessed by a Doctor that too by a

Doctor's of Medical Board or by the Doctor who treats the

injured.

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27. In the present case, there is no evidence of the

assessment of percentage of disability was placed, so as

to assess the functional disability and coming to assess

the loss of future earnings and loss due to permanent

disability, more over, this Court is of the opinion that

when there is no proof of percentage of disability the

learned Tribunal cannot step into the shoes of an Expert

and assess the percentage of disability, generally which is

done by the expert of Medical Board, that is basing on

certain parameters and the required rules and following

the guidelines for evaluation of various disabilities, which

the learned Tribunal is not empowered to assess the

percentage, which is not in the domain of the learned

Tribunal. Hence, the learned Tribunal considering the

percentage stated by the petitioner without any support

of medical or expert evidence i.e., oral or documentary

evidence, the same cannot be made basis to assess he

computation under the Head of loss of future earnings

and loss of permanent disability.

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28. On perusal of the entire evidence of PWs.1 and 2 it

is evident with regard to treatment being obtained by

PW-1 in Apollo Hospital. The evidence of PW-2 speaks

about the Fixing of artificial toe to the claimant /

petitioner and PW-3 has confined about Exs.C-1 and

C-2/ Final Bills. Except a bear suggestion that petitioner

will not have any permanent disability in walking due to

lose of great toe, which he denied about the same.

Admittedly, the entire medical record would show that

PW-1 was received the injuries viz., 1) Crush and

degloving injury left thigh, 2) Crush and degloving injury

left foot, 3) Fracture of First Med Tarsal Bone, 4)

Amputation of left great toe. Though PW-2 in his evidence

has specifically stated about the injuries received by

petitioner - claimant and also spoke about difficulty in

walking due to loss of great toe but, he has not produced

any Medical Certificate in proof of the same. Except the

oral evidence of PWs.1 and 2 nothing is placed on record NNR,J

to show that petitioner / clamant sustained permanent

disability of 40%.

29. As rightly contended by learned counsel appearing

appellant that there is no proof placed by the claimant to

show that she has sustained permanent disability of 40%

and on perusal of the findings of the learned Tribunal in

page No.14 at paragraph No.21, it shows that petitioner

has sustained permanent disability of 40%, wherein

learned Tribunal gave a finding stating that PW-2 is a

plastic surgeon, who treated PW-1 specifically stating

that claimant sustained permanent difficulty in walking

due to loss of great toe. Except the same, there is no

evidence to show that claimant received permanent

disability of 40%. In respect of the same, let us see the

law laid down in respect of proof of disability and giving

of compensation.

30. I do agree that as per the judgment of the then

Andhra Pradesh High Court cited in S.S. Dhanoa vs NNR,J

Union Of India And Ors1 and Mohan Soni vs Ram

Avtar Tomar & Ors2, there is no dispute that Section

92(c) of the Act says about 'permanent disability'. Learned

Tribunal assessed loss of future earnings on the

assumption that the petitioner suffered 40% of disability.

The correlation between the physical disability suffered in

an accident at the loss of earning capacity resulting from

it, which was discussed in RAJ KUMAR vs. AJAY

KUMAR & ANR 3 and Nagappa vs Gurudayal Singh &

Ors4.

31. In view of the aforesaid discussion and the settled

law, this Court is of the considered view that learned

Tribunal wrongly came to the conclusion that claimant -

injured sustained permanent disability of 40% without

any basis. Therefore, compensation amount of

Rs.2,00,000/- awarded under the head of 'permanent

disability' is disallowed. In absence of any proof regarding

1991 SCC 324 2 2012 (2) SCC 267 3 2011 (1) SCC 343 4 AIR 2003 SC 674 NNR,J

sustaining of permanent disability awarding

compensation amount of Rs.64,800/- under the head

'loss of future earnings' does not arise. Therefore, the

same is also disallowed. In respect of other heads, I do

not see any ground to interfere with the same. The

modified amount of compensation is as follows:

             HEAD                  Awarded by the         Awarded by this
                                      Tribunal                Court
a.   Loss     of           future Rs.64,800/-                   -
     earnings
b.   Transportation            to   Rs.24,000/-        Rs.24,000/-
     hospital
c.   Accommodation                  Rs.10,000/-        Rs.10,000/-
d.   Extra-nourishment              Rs.50,000/-        Rs.50,000/-
e.   Pain and suffering             Rs.1,00,000/-      Rs.1,00,000/-
f.   Permanent disability           Rs.2,00,000/-              -
g.   Fixing of artificial toe       Rs.2,00,000/-      Rs.2,00,000/-
h.   Cash      given       by       Rs.2728/-          Rs.2728/-
     claimant
     TOTAL                          Rs.6,51,528/-      Rs.3,86,728/-



32. Accordingly,             this    M.A.C.M.A.      is     partly    allowed

modifying the compensation, which the petitioner will be

entitled, and as per the interim orders of this Court

respondent No.1 / appellant / Insurance Company has

deposited 50% of the compensation awarded by the NNR,J

learned Tribunal. The respondent is entitled recover the

amount, if any, received by the petitioner in excess of the

awarded / modified compensation. In respect of other

amounts, awarded under other heads the same will be

intact and the interest aspect petitioner will be entitled

for the interest from the date of petition till realization of

any amount due.

Miscellaneous petitions, if any are pending, shall