MACMA/1863/2007 of S. Narasimha Reddy Vs APSRTC on 31 December 2014

JUDGMENT:

Aggrieved by the Order, dated 30.04.2007, passed by theChairman, Motor Accidents Claims Tribunal – cum – I AdditionalDistrict Judge at Mahabubnagar, (for short, ‘the Tribunal’), in O.P.No.718 of 2005 maintained by the claimant – injured under Section166 of the Motor Vehicles Act, 1988 (for short, ‘the Act’) for the injuriessustained by him in a motor accident that occurred on 06.11.2004,while he was proceeding on his scooter, a bus bearing No.AP-10-Z/2084 belongs to APSRTC (for short, ‘the Corporation’) came inopposite direction at Nagarkurnool main road near Kalanjali shop, atabout 8.30 P.M. dashed him , thereby he fell on the road and sustainedmultiple fractures and was admitted in Nagarkurnool GovernmentHospital, thereafter for better treatment, he was shifted to ApolloHospital, Hyderabad, and there he treated as inpatient from06.11.2004 to 20.11.2004 and incurred expenses, hence he claimedcompensation for Rs.5,00,000/-. Since the Tribunal awardedRs.1,90,500/- with interest @ 7.5% per annum with a finding that thereis contributory negligence on the part of the claimant at 25%; to fixreasonably, as the accident occurred in the rastha and main road ofNagarkurnool, there is no possibility of the petitioner proceedingspeedily, but for ipsi dixit cannot substantiate the negligence on thepart of the bus driver atleast by examination of pillion rider, who is eyewitness to the accident, besides the injured and that there is nopermanent disability that can be considered, but for pain andsufferance to the injuries, extra nourishment, attendant charges, loss ofearnings and medical expenses for treatment, the appeal ismaintained with the contentions in the grounds of appeal that, theTribunal gravely erred in fixing contributory negligence instead offixing total negligence on the part of the bus driver despite theevidence of the appellant – claimant, Exs.A.1 and A.2 – First Information Report and Charge Sheet laid by the police against thebus driver, and the Tribunal failed to consider the disability suffered bythe appellant - claimant as per Ex.A.5 – Disability Certificate coupledwith the evidence of P.W.2 – Dr.Balavardhan Reddy, that 25%permanent partial disability which the injured notionally affects hisavocation as agriculturist besides as a contractor and in support of hisclaim, the claimant filed Ex.A.9 – pattadar passbook of the land andthereby he sought for allowing the appeal as prayed for.

02. It is also the contention of learned counsel for the appellant -claimant that the Corporation is not opposing the claim in the counteron material facts even to fix any contributory negligence much lessevidence on its behalf, from the contest of respondent in cross-examination of P.W.1 with reference to Ex.A.2 - charge sheet.

03. Whereas, the respondent - Corporation even served withnotice failed to contest, hence, the appeal is taken as heard on itsbehalf.

04. Perused the material on record. The parties will hereinafterbe referred to as arrayed before the Tribunal for the sake ofconvenience.

05. Now the points that arise for consideration are:

i)Whether the award of the Tribunal in fixingcontributory negligence on the part of the injured at 25%and in not taking consideration of permanent or partialdisability is unsustainable, equally, on the quantum ofcompensation and if so, with what enhancement andwith what observation?

ii)To what result?

Point No.i:

06. It is important to note that the accident occurred at 8.30 P.M.on a fateful day i.e. on 06.11.2004 while the claimant - injured alongwith pillion rider was proceeding on his bike (scooter) bearing No.AP28 L 7416 and when they reached near Nagarkurnool main road andbazaar opposite to the Kalanjali shop, the crime bus proceedingtowards bus stand dashed against them, thereby they sustained

injuries. The Court, in appreciation of evidence, not only looks into theoral evidence but also attending circumstances. No doubt, ascontended by learned counsel for the appellant – claimant that thecontributory negligence cannot be presumed on the part of theclaimant merely because two vehicles involved and proceeding inopposite direction. Here, the place of accident is main road ofNagarkurnool and opposite to the Kalanjali shopping complex. It is tosay, if it is main road and busy, there is no possibility of the vehiclesproceeding in high speed, but for any negligence in driving both thevehicles proceeding in opposite direction not in dispute. A perusal ofEx.A.1 – First Information Report shows that report was given by oneSingireddy Srinivasa Reddy, who is no other than the son of theappellant - claimant, on 06.11.2004 at about 9-00 P.M. i.e. within half-an-hour after the accident. The contents of the report reads that on thatday he came to Nagarkurnool on his personal work and aftercompletion of his work, while going to Siripuram Cross-Roads at about8.30 P.M. he noticed the bus bearing No.AP 10 Z 2084 comingtowards bus stop near Kalanjali shop and the bus dashed the scooterand when he went there to notice the accident, he found that thescooterist is his father and sustained injury along with their tipperdriver, Prabhakar. Then he shifted the injured persons toNagarkurnool Hospital. Hence, to take action.

07. The informant is not even examined as a witness to theaccident which proves the accident occurred on the main road andthere is collision between both the vehicles. Though it cannot be saidhead on collision, but for contribution on the part of the injured alsofrom the manner and place of accident and circumstances and mannerof accident, it cannot be said that the accident is out come with nocontributory negligence of the petitioner. It is the Tribunal havingregard to the fresh in mind of the facts when come to the conclusionthat there is contributory negligence, this Court while sitting in appeal,merely because some other view is possible cannot be interfered irrespective of no contest by the Corporation, having served with thenotice, for the limitations of the appellate court. However, from thefactual matrix, fixing of 25% contributory negligence on the part of theappellant – claimant is unsustainable that too when the driver of thesaid bus did not come to witness box and there is no oath against oathfrom the evidence of P.W.1/ appellant - claimant in support of thedocumentary evidence Exs.A.1 and A.2 – First Information Report andCharge Sheet against the bus driver.

08. Having regard to the above, it is just to reduce thecontributory negligence from 25% to 20% by negating the contention ofthe counsel for the appellant – claimant that the there is no plearegarding contributory negligence in the counter filed by the insurer. Infact, in the counter filed by the insurer, the contention is totalnegligence on the part of the appellant – claimant for no fault of busdriver and otherwise contributory negligence has to be fixed. The lawis fairly settled that the respondent can take inconsistent pleasalternatively but not by the petitioner – plaintiff. Having regard to theabove, the contention of learned counsel for the appellant that there isno plea is untenable under Order VI Rule 2 C.P.C. and there is specificdenial of material facts pleaded including on the manner of negligenceon the part of the bus driver, in the counter filed by the Corporation ascontemplated by Order VIII Rules 3 to 5 C.P.C. for nothing have beenadmitted in the pleadings much less by non-denial to say admissioneither under Section 17 or Section 58 of the Evidence Act.

09. Now coming to the quantum of compensation, Ex.A.3 is thewound certificate issued by the Medical Officer/ Civil AssistantSurgeon, Area Hospital, Nagarkurnool, where the injured wasadmitted and provided first aid, wherein it is stated that the injuredsustained four injuries which are lacerated wounds, they are on theforehead, over the nasal bridge, on the right leg, and on the right kneejoint. Out of four injuries, three injuries were described as grievous andone is simple. He was referred to Osmania General Hospital for better treatment, however, mentioned that the claimant intends to go to theAppollo Hospital. Ex.A.4 is the discharge summary of the injuredissued by the Appollo Hospital. Wherein it is mentioned that theinjured was admitted on the same day i.e. on 06.11.2004 at 10.30 P.M.(within two hours after the accident) and it speaks that the injured wasadmitted in Appollo Hospital with the following injuries,

i)fracture of left frontoparietal bone with fracture left frontalsinussinus

ii) fracture anterior and medial wall of Maxilla Bilaterally,iii)fracture right orbit,iii)fracture right orbit,

iv)Fracture base of skull with gross pneumocephalus,

v)Fracture head of femur with posterior dislocation of righthip (fracture dislocation of right hip),hip (fracture dislocation of right hip), vi)Grade-I compound comminuted fracture of proximal tibiaright with intracticular extention. right with intracticular extention.

10. In all, there are seven fractures including compoundcomminuted fracture on right tibia and fracture of right femur hip. Thetreatment shows wound debridgment and operation with screw fixationwas done on 08.11.2004. The appellant - claimant was discharged on20.11.2004 with the advise to follow up regular check up every month,the 1[st] to 4[th] component injuries are pertaining to head injury. The 4[th]component of the injury will involve the right hip due to dislocation,which can affect the function of the joint in future, similarly the 6[th]component of the injury will also have some discudula effects the rightknee joint fracture. Due to the above injuries mentioned at 5[th] and 6[th]component, he will have difficulty in walking, bending, kneeling/ sittingon the knee to attend regular activities. P.W.2 further deposed thatEx.A.5 is the Disability Certificate issued for 25% disability sustainedby the petitioner on right lower limb. In the cross-examination, hedeposed that there is a Medical Board to issue Disability Certificateand he is not a Member of the Medical Board. Ex.A.5 is the privatecertificate. He denied the suggestion that, to accommodate the injured,Ex.A.5 was issued though the injured not sustained such disability. Witness volunteers in saying any Orthopedic Surgeon treated the patient is authorized to issue disability certificate according to theguidelines of the National Medical Board of Disability, that is, what allthe evidence in saying there is stiffness from the knee joint for bending,walking and kneeling/sitting. Thereby the disability is partialpermanent disability and it is at 25%. A perusal of Ex.A.5 – DisabilityCertificate nothing shows but for mentioning a few lines aboutsustaining the injury and due to which he suffered around 25% partialand permanent disability to his right lower limb. There is also nothingto show on what basis the disability was assessed and with any freshX-ray. The Tribunal, though not discussed these facts, thereby notconsidered the disability but for awarding compensation for pain andsuffering, the medical expenses, treatment and other sums.

11. Now coming to the correctness of the said quantum ofcompensation, even no permanent disability can be taken from whatEx.A.5 reflected, but for to consider any fixed sum, along with pain andsuffering for the injuries, nature of the injuries referred supra indicateas many as seven fractures including compound fracture to the rightknee and it is just to award Rs.1,40,000/-, including for the partialpermanent disability or difficulty for squatting, seating and kneeling forsome period, Besides the above, the Tribunal rightly awardedRs.1,87,555/- towards medical bills covered by Exs.A.4, 6 and 7,Rs.6,000/- towards post discharge treatment, Rs.5,000/- towardstransport charges from Nagarkurnool to Hyderabad attendance,Rs.5,000/- towards extra nourishment, however, coming to the loss ofearnings even taken the period of immovability for two months from thedate of accident, it is just to award for a sum of Rs.11,000/- rather thanRs.5,000/- awarded by the Tribunal and for attendant charges amountRs.5,000/-. In all, the total compensation comes to Rs.3,59,555/-. Afterdeducting an amount of Rs.71,911/- i.e. 20% contributory negligenceon the part of the appellant – claimant and the respondent –Corporation is liable to pay an amount of Rs.2,87,644/- to the petitionertowards 80% negligence on the part of the bus driver. In other respects the award of the Tribunal holds good.

Point No.ii:

the award of the Tribunal holds good.

Point No.ii:

12. In the result, the appeal is partly allowed, enhancing thecompensation from Rs.1,90,500/- to Rs.2,87,644/- (Rupees two lakhs,eighty seven thousand, six hundred and forty four only). The order ofthe Tribunal in other respects holds good. No costs.

13. Miscellaneous petitions, if any, pending in this appeal shallstand closed.

_______________________________

Dr. B. SIVA SANKARA RAO, J

31.12.2014BV