Andhra HC (Pre-Telangana)
Unknown vs Counsel For on 20 August, 2014
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HONBLE SRI JUSTICE C. PRAVEEN KUMAR
M.A.C.M.A. No.2999 OF 2008
20-08-2014
Mekala Rama Mohan Reddy.....APPELLANT/CLAIMANT
The A.P.S.R.T.C. rep. by Its Managing Director, Musheerabad,
Hyderabad...RESPONDENT/RESPONDENT
Counsel for Appellant:M/s.D.Kodanda Rami Reddy
Counsel for Respondent :Sri K.V. Subba Reddy
<GIST :
>HEAD NOTE :
? Cases referred :
1990 ACJ 1032 (Kerala)
2013(2) An.W.R. 497 (Del.)
THE HONBLE SRI JUSTICE C.PRAVEEN KUMAR
M.A.C.M.A. No.2999 of 2008
JUDGMENT:
Challenging the order and decree passed in O.P.No.567 of 2003 on the file of the Motor Accidents Claims Tribunal-cum-III Additional District Judge (FTC), Cuddapah, the claimant preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (for short the Act).
For the sake of convenience, the parties will hereinafter be referred to as arrayed in the O.P. The facts in issue are as under:
The claimant filed a petition under Section 166 of the Act claiming compensation of Rs.2,00,000/- for the injuries sustained by him in a road accident that occurred on 24.02.2002. It is stated that on that day the claimant boarded an RTC bus bearing No. AP 10 Z 8905 from Kondapuram to Pathapalli. The bus was overcrowded and due to lack of space in the bus, the driver and conductor of the bus asked the claimant to go and sit on the top of the bus. Accordingly the claimant is said to have gone and sat on the top of the bus. It is stated that the driver of the bus without observing the rules and regulations proceeded under the railway bridge, as a result of which the metallic rods of the bridge came into contact with the claimant leading to sustaining severe injuries. After hearing the cries, the driver stopped the bus and shifted the claimant to Government Hospital, Pulivendula. From there the claimant was referred to G.G.H. Cuddapah, thereafter to a private hospital at Cuddapah for better treatment. Since the driver of the Andhra Pradesh State Road Corporation (for short the Corporation) is responsible for the accident, the claim-petition was filed making the Corporation liable to pay the compensation.
The respondent Corporation filed its counter alleging that on the date of accident 120 passengers boarded into the bus and out of them 20 passengers were sitting on the top of the bus without permission of the conductor; they have not come down even on the request of the conductor and on the other hand replied that they were traveling every day and could escape the Railway Bridge. The driver of the bus drove the bus slowly underneath the bridge and the claimant alone sustained injuries. It is said that there is no negligence on the part of the driver and conductor of the bus. Since the act of the claimant was against the directions of the driver and conductor of the bus, the Corporation is not liable to pay any compensation. In any event it is stated that the claim made is excessive and exorbitant.
Basing on the above pleadings, the Tribunal framed the following issues:
1) Whether the petitioner received injuries in a motor vehicle accident occurred on 24.02.2002 at 10.00 a.m. due to rash and negligent driving of RTC bus bearing No. AP 10 Z 8905 by its driver belonging to Corporation?
2) Whether the petitioner is entitled for compensation, if so to what amount?
3) To what relief?
In support of his claim, the claimant examined himself as PW.1 and the doctor who treated the claimant as PW.2. He also got marked Exs.A1 to A5. No oral or documentary evidence has been adduced on behalf of the Corporation.
After analyzing the evidence available on record the Tribunal held that the accident occurred due to contributory negligence on the part of the driver of the bus and the claimant in the ratio of 2:1 and the claimant is entitled to Rs.40,000/- from the Corporation. Challenging the same the claimant preferred the present appeal.
The finding of the tribunal with regard to the manner in which the accident took place has become final as the same is not challenged by the Corporation.
The only point that arises for consideration is whether the compensation awarded by the Tribunal is just and reasonable and whether there was any contributory negligence on the part of the claimant in causing the accident.
To decide as to whether the claimant also contributed to the accident, it would be useful to refer to the evidence of PW.1. PW.1 in his evidence stated that on 24.02.2002 at about 10.00 a.m. the accident took place when the bus was going underneath a railway bridge at Kondapuram. At the time of the accident, PW.1, who was sitting on the top of the bus came in touch with metallic rods of the railway bridge and is said to have received injuries. PW.1 in his evidence also deposed that nearly 20 passengers were sitting on the top. The said fact is not disputed by the Corporation, as their counter also reveals that 120 passengers were traveling in the bus and 20 passengers were sitting on the top of the bus on the date of the accident. The evidence of PW.1 would show that the driver and conductor of the bus directed them to sit on the top of the bus as there was no space inside the bus. The case of the Corporation is that when the conductor asked them not to travel on the top of the bus, all of them, including the claimant, boarded the top of the bus stating that they are regularly traveling as such nothing would happen to them. It was suggested to PW.1 that if the conductor and driver of the bus have not allowed them to sit on the top of the bus, the villagers would have stopped the bus and beat them. Having given such suggestion, the Corporation did not examine either the driver or conductor of the bus to prove their version. They did not even make any effort to examine any one of the passenger traveling along with the claimant in the bus at the time of the accident. No reasons are forthcoming as to why steps are not being taken to examine the driver or conductor or any of the passengers of the bus. In the absence of any evidence on record, the plea of the Corporation that the claimant and others sat on top of the bus by threatening the driver and conductor of the bus cannot be accepted. Therefore, the finding of the Tribunal in holding that the injured also responsible for the accident basing on the suggestion given to PW.1 cannot be accepted.
In Bhaskaran v. Ravindran a Division Bench of Kerala High Court had the occasion to deal with the question of passengers standing on the footboard while traveling in a bus. The Division Bench held as under:
The correct principle appears to be what we have already indicated. It is the duty of the conductor to see that the bus is set in motion only after all alighting passengers have alighted and passengers intending to travel in the bus board the bus. Boarding a bus does not mean merely entering the footboard. Boarding the bus means getting inside the bus and either sitting in a seat or standing in the space reserved for standing passengers. A conductor has a statutory duty to see that there are no footboard passengers. If a passenger is on the footboard and there is no space at all for him to sit or stand inside the bus, he must be asked to get down and the bus can be set in motion only after he alights. When there is sitting or standing space inside the bus, it is the duty of the conductor to see that a passenger who is on the footboard gets inside the bus and seats himself or stands in the space reserved for standing passengers before giving signal for the bus to start. This corresponds with the driver's duty to ensure that bus is moved only after ensuring safe travel conditions. In the discharge of his duty he is largely guided by the instructions of the conductor. If a bus with no vacant seat and no standing space is started when a passenger is on the footboard and he is not asked to alight from the bus or not cautioned against travel on footboard and accident takes place and the footboard passenger sustains injury, wholely or partly on account of his position on the footboard, he cannot be held to be guilty of contributory negligence. It may be that if he refuses to alight in spite of the direction by the conductor or if he is cautioned about the risk he is undertaking by travel on footboard, it is not possible to absolve him of the responsibility in the accident. We, therefore, hold that the claimant was not guilty of contributory negligence.
Similarly a learned single Judge of Delhi High Court in Oriental Insurance Co. Ltd. V. Urmila Devi and others while dealing with a case where the deceased fell down while standing on the rear gate of the bus held as under:
It was the duty of the driver and conductor of the bus to take care that the passengers do not stand near the rear gate of the bus. If a driver permits a passenger to stand near the gate of the bus, he cannot be absolved of negligence as it is the bounden duty of the driver to carry the passengers safely. Thus, it cannot be said that the deceased himself contributed to the accident by standing near the rear gate in an overcrowded bus.
From the judgments referred to above, it is clear that, while driving a public transport vehicle, it is the duty of the driver and conductor of the bus to ensure that the occupants of the bus whether seated or standing are carried safely to their destination. If the driver and the conductor find it to be unsafe, they should not permit overcrowding of the bus and should not allow anyone to travel in the manner which is dangerous.
As stated above, the evidence on record is silent as to the steps taken by the driver and conductor of the bus in directing the claimant to get down from the top of the bus or take any precautionary steps while permitting them to travel in the bus. That being the position, the finding of the Tribunal in holding that the accident occurred due to contributory negligence on the part of the driver of the bus and the claimant in the ratio of 2:1 cannot stand and the same is liable to be set aside.
Coming to the quantum of compensation to be awarded, the Tribunal awarded a sum of Rs.5,000/- towards transport charges, Rs.15,000/- towards medicines, Rs.10,000/- for extra nourishment and Rs.30,000/- towards loss of earnings and partial disability.
The evidence on record namely the oral evidence of PW.2 coupled with Ex.A2 wound certificate would show that the claimant sustained a contused laceration measuring 4 cm x 1 cm muscle deep over the right side of the fore head, horizontal direction, pain and tenderness over the right hip joint, movements of right hip joint painful and the X-ray of right hip found fracture of femur. As per Ex.A2 the petitioner sustained one simple injury and one grievous injury. Having regard to the nature of injuries sustained, the Tribunal awarded compensation in the manner indicated above, which in my view, being just and reasonable, warrants no interference.
Therefore, the appellant (claimant) is entitled to Rs.60,000/- in all, with interest towards compensation. The award and decree of the Tribunal, on all other aspects and respects, remain unaltered.
Accordingly the appeal is allowed in part. There shall be no order as to costs. Miscellaneous petitions, if any pending in this appeal, shall stand closed.
________________________ JUSTICE C. PRAVEEN KUMAR 20.08.2014