Andhra HC (Pre-Telangana)
Gandhari Ramesh vs Janardhan And Ors. on 3 September, 1997
Equivalent citations: 1999ACJ816
JUDGMENT
1. This appeal is from the judgment of the learned Chairman, Motor Accidents Claims Tribunal-cum-Addl. District Judge, Adilabad, in O.P. No. 402 of 1993, by which compensation in a sum of Rs. 1,33,000 was awarded in favour of the appellant herein in respect of a motor accident that occurred on 14.5.1993 in Yellaram village near Adilabad, which had resulted in the total severance of his right arm up to the shoulder. The appellant, an unmarried, was aged 23 years at the time of accident. He passed Trade Certificate Examination in Electrical Branch in the month of January, 1991. He was employed as an Electrician in Sri Lakshmi Nara-simha Swamy General Engineering and Electrical Works, Palakurthi, Warangal on a monthly salary of Rs. 2,500. On the fateful day, i.e., 14.5.93, the appellant was proceeding to Adilabad in A.P.S.R.T.C. bus for the purpose of submitting the application for appointment as helper in the Andhra Pradesh State Electricity Board. When the bus reached Yellaram village, an oil tanker bearing registration No. AP 16-T 4176 came from opposite direction in a rash and negligent manner, bumped against the right side portion of the bus and at that time as the appellant was resting his right hand on the window-sill, the hand got severed totally and fell into the cabin of the oil tanker. In respect of the accident, a case was registered by the police and the driver of the oil tanker pleaded guilty for the offence under Section 304-A, Indian Penal Code in C.C. No. 364 of 1993, for which he was convicted by the Munsif Magistrate, Luxxettipet. The appellant filed O.P. No. 402 of 1993 claiming in all a sum of Rs. 6,00,000 towards compensation under the following heads:
Transportation to hospital Rs. 2,000 Extra nourishment Rs. 10,000 Medical and other expenses Rs. 30,000 Pain and suffering Rs. 58,000 Compensation for permanent disability Rs. 3,00,000 Compensation for loss of earning power and future losses Rs. 2,00,000 Total Rs. 6,00,000
2. The respondent No. 1 is the owner of the tanker involved in the accident and the respondent No. 2 was the driver. The respondent No. 3 is the insurer with which the lorry was insured at the time of the accident. The Andhra Pradesh State Road Trans. Corpn. was not impleaded as a respondent. Although the driver and owner of the oil tanker involved in the accident were made parties (respondents), both of them remained ex parte and no evidence was adduced on their behalf. But in the counter-affidavit filed by the respondent No. 2, a plea was taken that no space was given by either of the drivers of the R.T.C. bus and the oil tanker to allow the other vehicle to pass-by.
3. The petitioner got himself examined as PW 1 and Exhs. A-1 to A-11 were marked.
4. The learned Chairman, although there is no evidence in respect of the plea taken by the respondent No. 2 in the counter-affidavit that the drivers of both the vehicles did not give space, recorded a finding that the accident was the result of composite negligence of the drivers of the R.T.C. bus and the oil tanker, and as the A.P.S.R.T.C. was not impleaded as a respondent, he was of the view that the compensation amount has to be reduced by 50 per cent. He also recorded a finding that the drivers of both the vehicles were driving the vehicles without giving proper space for the other to pass. On the question of quantum of compensation, the learned Chairman awarded the following amounts:
(a) Transportation charges Rs. 1,000
(b) Extra nourishment Rs. 5,000
(c) Medical and other expenses Rs. 10,000
(d) Pain and suffering, loss of amenities of life, loss of expectation of life Rs. 50,000
(e) Compensation for permanent disability Rs. 1,00,000
(f) Compensation for loss of earnings, loss of earning capacity or both Rs. 1,00,000 Total Rs. 2,66,000 In view of the finding that the accident was the result of composite negligence, the learned Chairman granted only Rs. 1,33,000 as compensation, half of Rs. 2,66,000. Aggrieved by that, the present appeal was brought.
5. Although the propositions of law stated by the learned Chairman as to what constitutes contributory negligence and composite negligence are unexceptionable, we are of the view that there is no warrant for the inference that the accident in question was the result of composite negligence and, therefore, the failure on the part of the claimant to implead the A.P.S.R.T.C. should result in his losing half of the compensation amount. There is absolutely no evidence to support the theory of composite negligence. Even though a plea was taken by the driver of the oil tanker that no space was given by both the drivers, he did not go into the witness-box nor anyone else was examined to prove this assertion. What is more important is that the respondent No. 2 driver had pleaded guilty to the charge under Section 304-A, Indian Penal Code in C.C. No. 364 of 1993 and on the basis of his admission, conviction was recorded by the criminal court. In this fact situation, we find it difficult to hold that a case of composite negligence was made out. We must also mention that in the absence of any evidence to support what has been pleaded, it is not open to any court or Judicial Tribunal to record a finding that what was pleaded was proved. If the finding of composite negligence, which was based on no evidence, is excluded, what follows unquestionably is that the accident was the result of the rash driving by the driver of the oil tanker.
6. Coming to the question of quantum of compensation, except in regard to subheads (e) and (f), in respect of the other heads under which compensation was awarded, we are inclined to agree with the learned Chairman. As regards the subhead (e)-compensation for permanent disability-the total amount awarded was Rs. 1,00,000. We think the claimant is entitled to Rs. 1,50,000 under this head. The evidence clearly points out that the loss of efficiency is to the extent of 90 per cent. His right arm up to the shoulder point was totally severed and the prospect of even going in for an artificial limb is totally bleak. The permanent disability sustained by him, we have little doubt, would land him in a state of permanent psychological depression; it would be difficult for him to forget the fact that at one time he had both the arms and the traumatic experience of losing one arm in a ghastly accident would haunt him for the rest of his life. One more aspect which we must notice in this context is that the prospects of his getting married and leading a normal family life have also become bleak. Taking all these factors into account, a sum of Rs. 1,50,000 under the head compensation for permanent disability, we think, would be just and proper. As regards the sub-head (f)-compensation for loss of earnings and loss of earning capacity-we feel that a sum of Rs. 1,50,000 as against Rs. 1,00,000 awarded by the Tribunal would be just and proper. The claimant had lost all chances of securing employment; he is a technician and without the help of right hand, it is not possible for him to work as a technician and since he was trained only for the job of a technician it would not be possible for him to secure any job for which he was trained. It is very doubtful whether with one hand, that too left hand, he would be in a position to take up any other profitable employment. Taking these aspects into consideration, we think, a sum of Rs. 1.50,000 under the head compensation for loss of earnings and loss of earning capacity is just and proper.
7. For the foregoing reasons, the appeal is allowed in part with proportionate costs and the compensation amount is fixed at Rs. 3,66,000 as against Rs. 1,33,000, with interest at the rate of 15 per cent per annum from the date of petition till the date of payment.