CMA/777/2003 of APSRTC. Vs Polisetty Lovaraju , Raju, on 30 December 2010

HONOURABLE SRI JUSTICE P. SWAROOP REDDY

CIVIL MISCELLANEOUS APPEAL No.777 OF 2003

AND

–CROSS OBJECTIONS (S.R.) No.4027 OF 2004COMMON JUDGMENT:

Aggrieved of the quantum of compensation awarded in O.P. No.215 of 2000 vide order dated 22-08-2002 by the learnedChairman, Motor Accident Claims Tribunal – cum – District Judge, East Godavari, Rajahmundry, the APSRTC, Hyderabad preferred thisCivil Miscellaneous Appeal.

2. On the other hand, being dissatisfied with the quantum ofcompensation awarded by the Tribunal, claimant preferred the aboveCross Objections seeking enhancement of compensation.

3. The driver of the APSRTC bus bearing No.AP9 – Z – 8959involved in the accident and the APSRTC, appellant herein, arerespondent Nos.1 and 2 respectively in the O.P. before the Tribunal. The claimant is cross objector herein.

4. For the sake of convenience, the parties are referred to asarrayed in the O.P. before the Tribunal.

5. The case of the claimant before the Tribunal is that on 21-01-2000 at Rajahmundry, he boarded the APSRTC bus bearingNo.AP9 – Z – 8959 along with his luggage of cloth bundles and as thedriver, respondent No.1, of the bus drove it in a rash and negligentmanner and high speed, at about 5-15 PM, near Diwancheruvu, busdashed against a tree on the road margin, as a result, bus turned turtleand he sustained fracture of spinal card and other multiple grievous injuries all over his body. Immediately, he was admitted inGovernment Hospital, Rajahmundry and from there he was shifted toGovernment General Hospital, Kakinada. Due to the fracture of spinalcard, he lost sensation of his body and he became permanentlydisabled. He spent Rs.1,00,000/- towards treatment but till today hedid not recover. Hence, he claimed a compensation of Rs.5,00,000/-.

6. Respondent No.1, the driver of the APSRTC bus involved inthe accident, remained ex parte.

7. Respondent No.2, the owner of the above bus - APSRTC,alone filed its counter denying the case of the claimant and its liabilityfor payment of compensation.

8. Based on the pleadings, the following issues were framed fortrial by the Tribunal:

“1. Whether the petitioner sustained injuries in the accident occurred on 21-1-2000 at 5-15 P.M. at Usha Academy near Divancheruvu, Rajahmundry Rural Mandal due to the rash and negligent driving of APSRTC bus bearingand negligent driving of APSRTC bus bearing No.AP9Z/8959

by the 1[st] respondent ?

2. Whether the petitioner sustained any permanent disability due to the injuries received in the accident ?

3. Whether the petitioner is entitled to any compensation, if so, to what amount and from whom ?

4. To what relief ?”

9. To substantiate his case, claimant got examined himself asPW.1 and the doctor, who treated him, as PW.2 and got marked Exs.A-1 to A-7. On behalf of the respondents, the driver of the bus involved in the accident was got examined as RW.1 but no documentswere marked.

10. Based on the evidence on record and after an elaborateconsideration of the same, Tribunal awarded a compensation ofRs.2,61,745/- to the claimant against both the respondents for paymentof compensation jointly and severally with interest at 9% per annumform the date of petition till realization.

11. Aggrieved of the quantum of compensation awarded by theTribunal, the APSRTC preferred the appeal contending that thecompensation awarded to the claimant is on higher side.

12. On the other hand, being dissatisfied with the quantum ofcompensation awarded by the Tribunal, claimant preferred the crossobjections seeking enhancement of compensation.

13. Now the point that arises for consideration is whether theTribunal erred in awarding just and reasonable compensation to theclaimant ?

14. The evidence of RW.1, the driver of the bus involved in theaccident, is that while he was trying to avert a collision with a lorry thatwas coming in the opposite direction, he swerved the bus to theextreme right side of the road and at that time, front plates springs ofthe bus were broken and as a result, the accident has taken place butnot on account of his negligence. Though he tried to give someexplanation saying that to avert a possible collision with a lorry comingin the opposite direction accident took place, there is no dispute thatthe accident has taken place without the involvement of any othervehicle and the claimant was occupant of that bus at that time. Thus,there is no dispute that the claimant is entitled to compensation for the injuries sustained by him in the accident.

15. Coming to the question of quantum of compensation, the evidence of the claimant as PW.1 is that he sustained fracture ofspinal card. He was taken to Government Hospital, Rajahmundry andfrom there to Government General Hospital, Kakinada, where he wastreated as inpatient for a period of two months. Thereafter, he wastaken to Lalitha Nursing Home, Visakhapatnam for further treatmentwhere surgery was performed to both his legs and neck. Thereafter,again he was shifted to Government General Hospital, Kakinada andthere he took treatment as inpatient for four months. Even afterdischarge, he is going to the hospital for regular medical check up ashe sustained fracture of spinal card. He lost sight of his left eyecompletely. He is not in a position to do any work. It is also recordedin his deposition that the witness was carried into witness box with theaid of a person and made him to sit. His further evidence is that he isunable to sit or squat and not even able to attend calls of nature and heneeds assistance for everything. He spent Rs.1,80,000/- towardsmedical expenses though he has no bills for the entire amount. He has bills only for Rs.17,745/-. In the cross-examination, he deniedthe suggestion that he has not sustained any disability and the injuriesstated by him. He admitted that he did not mention in the petition thathe lost sight of his left eye.

16. The evidence of PW.2, the medical officer, is that on 09-02-2001, he examined the claimant. The claimant was sufferingfrom cervical spine injury with paralysis of all the four limbs for whichhe was operated. There was partial recovery of paralysis and thedisability was assessed at 80% by the medical board, which issuedEx.A-4 disability certificate.

17. The Tribunal, accepting the evidence of the claimant as

PW.1 and the medical officer as PW.2 and found that the claimantsustained the disability claimed by him i.e., injury to spinal card etc. Further, it was found that there was no authentic evidence with regardto profession of the claimant and his income being Rs.5,000/- permonth. No doubt, there is no authentic evidence with regard to incomeof the claimant, who was aged 21 years at the time of accident. Even ifhe was not earning any substantial amount on the date of accident, bythe passage of time his income would have gone up. But, on accountof the accident, he has become completely wreck without anypossibility of any earnings and not only that he requires continuousassistance for his daily needs as he is unable to sit or squat andsomeone has to maintain him through out his life as he cannot earnanything. Apart from all this, he has to suffer life long as a most crippled person, as he is totallydisabled and cannot sit or squat due to injury to the spinal card.

18. Considering all these circumstances, I am of the consideredview that the compensation of Rs.2,61,745/- awarded by the Tribunalcannot be said to be adequate. The claimant has not only lost hisincome but he has become a liability to his family and he needsassistance for his personal activities also and as already referred hislife has become waste and he has to put up with the same till hisdeath.

19. In the circumstances, I hold that the claimant is entitled to atotal compensation of Rs.5,00,000/- claimed by him and the same isaccordingly awarded.

20. Coming to the question of rate of interest, the Tribunal hasawarded interest at 9% per annum from the date of petition tillrealization with a default clause to enhance the rate of interest at 12% per annum in case there is delay in depositing the compensation within 30 days from the date of the award. In view of the present legalposition, the rate of interest that can be awarded is at 6% to 7.5% perannum. However, as it is a case, where the claimant has becomepermanently disabled, requires assistance even for his personalactivities and has to survive solely on the interest he gets on thecompensation now awarded, hence I am of the opinion that grantinginterest at 9% per annum from the date of petition till realization wouldbe justifiable. Accordingly, the rate of interest is awarded at 9% perannum on the entire compensation of Rs.5,00,000/- from the date ofpetition till realization.

21. Thus the compensation of Rs.2,61,745/- awarded by theTribunal is enhanced to Rs.5,00,000/- (Rupees five lakhs only) withinterest at 9% per annum from the date of petition till realization.

The entire enhanced compensation along with the interest accruedthereon till now shall be kept in a fixed deposit in a nationalized bank. I am not prescribing any date for withdrawal of the enhancedcompensation by the claimant since he has to maintain himself solelyon the interest he would be getting on the compensation awarded nowas he became permanently disabled and could not do any other work. The claimant is permitted to withdraw the interest accrued on thecompensation every month from now onwards. However, with regardto withdrawal of the compensation awarded by the Tribunal, order ofthe Tribunal shall stand.

22. With the above enhancement in quantum of compensationand the directions, the Cross Objections are allowed and the CivilMiscellaneous Appeal is dismissed. No order as to costs.

___________________

P. SWAROOP REDDY, J

December 30, 2010.PV