Andhra HC (Pre-Telangana)
A.P.S.R.T.C. Rep. By Its Managing ... vs Muttukonda Tirupati Reddy on 21 October, 2014
Author: B. Chandra Kumar
Bench: B. Chandra Kumar
HONBLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No.188 of 2006 21-10-2014 A.P.S.R.T.C. rep. by its Managing Director HyderabadAppellant Muttukonda Tirupati Reddy.Respondent Counsel for the petitioner: Sri M.S.R.Chandra Murthy Counsel for the Respondent: Standing Counsel for A.P.S.R.T.C. <Gist : >Head Note: ? Cases referred: 2011)(8) Scale-240 2 2012 (3) ALD 53(SC) 3 2013 ACJ 1403=(4)ALT-35(SC). HONBLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No.188 of 2006 and CROSS OBJECTIONS (S.R.) No.28670 of 2014 COMMON JUDGMENT:
M.A.C.M.A.No.188 of 2006 and the Cross Objections are preferred by the Andhra Pradesh State Road Transport Corporation (in brief A.P.S.R.T.C.) and the claimant, respectively, being aggrieved by the award dated 08.08.2005 passed in MVOP No.575 of 2002 by the II Additional District Judge, Nellore, whereby and whereunder the Tribunal awarded compensation of Rs.1,67,235/- out of the total claim of Rs.3,50,000/-.
The parties hereinafter will be referred to as they are arrayed before the Tribunal for the sake of convenience.
The brief facts of the case are as follows:
The case of the petitioner is that on 16.07.1998 while he was travelling in the R.T.C. bus bearing No.AEZ 2179 from Nellore to Udayagiri. It is alleged that on account of rash and negligent driving of the bus driver, an angular which was loaded on the top portion of the bus fell down, intercepted the rear tyre of the bus and came into the bus forcibly and hit the right thigh of the petitioner causing injuries. The claimant was shifted to Kaligiri Hospital and from there he was shifted to Apollo Hospital, Nellore, wherein he had taken treatment as in-patient for three days and subsequently he was shifted to Surya Hospital, Madras, wherein he was treated as in-patient from 18.07.1998 to 05.09.1998. He underwent surgeries on 18.07.1998 and 27.07.1998. Subsequently, he was again admitted in the same hospital from 07.10.1998 to 15.10.1998 and again from 03.01.1999 to 26.02.1999. So even on the date of filing of the claim petition, he was undergoing treatment. The claimants specific case is that he became permanently disabled and he is unfit to walk without assistance. It is also his case that there is shortening of right leg and he is experiencing pain while walking. He was working as Branch Post Master and earning Rs.6,000/- p.m., besides doing agriculture and supervising contractor. It is also his case that he spent Rs.2 Lakhs towards medical expenses and transportation charges. He claimed a total compensation of Rs.3,50,000/-.
The respondent contested the matter on various grounds. The nature of injuries and the period of treatment have been denied. It is also denied that the claimant was earning Rs.6,000/- p.m. The Tribunal framed the following issues.
1. Whether the pleaded accident occurred resulting injuries of the claimant and if so was it due to the fault of the driver of APSRTC Bus No.AEX 2197?
2. Whether the claimant is in principal entitled to compensation and if so to what amount?
3. To what relief?
On behalf of the claimant, the claimant himself was examined as PW.1 and also examined PWs.2 and 3 and marked Exs.A1 to A16. On behalf of the respondent, the driver and conductor of the bus were examined as RWs.1 and 2, respectively and no documents were marked.
The Tribunal on appreciation of evidence came to the conclusion that the accident took place due to rash and negligent driving of the driver of the APSRTC bus. On the quantum of compensation, the Tribunal has taken the income of the claimant at Rs.15,000/- p.a. and estimated the disability at 30% and calculated the loss of earnings at Rs.63,000/- p.a.. The Tribunal also awarded Rs.20,000/- towards pain and suffering, Rs.81,735/- towards medical expenses and Rs.2,500/- towards transport charges. Thus, awarded total compensation of Rs.1,67,235/-.
The main contention of Sri L.Arun Kumar, learned Standing Counsel for A.P.S.R.T.C. is that in fact there is no negligence on the part of the driver of the bus and nobody is responsible for falling the angular from the top of the bus. It is also submitted that in the absence of proof of income, the Tribunal has rightly taken the income of the claimant as Rs.15,000/- and there is no justification to enhance the amount.
Sri M.S.R.Chandra Murthy, learned counsel for the claimant submits that due to the permanent disability sustained by the claimant, he is unable to do the job and resulted in loss of earnings. It is also submitted that the doctors, who were examined as P.Ws 2 and 3 deposed that the claimant sustained 50% of disability. Hence, the Tribunal ought to have taken loss of earnings at 50%. It is also his submission that the claimant was working as Branch Post Master and also doing other works and earning Rs.6,000/- p.m. and there was nothing to disbelieve the evidence of P.W.1. It is also submitted that the Tribunal ought to have believed Ex.A13, certificate issued by K.M.C.Constructions. It is also his submission that the labourers are earning Rs.100/- to 150/- per day. His main contention is that it is the duty of the bus driver to see that no angular is placed at the top of the bus, which is weighing about 5 Kgs. Even if it is placed on the top of the bus, the driver and conductor ought to have tied it tightly so that it would not fall. Hence, the accident occurred due to the negligence of the bus driver only.
Learned Standing Counsel for A.P.S.R.T.C. with regard to the Cross Objections submits that notice in the appeal was already served on the claimant long back in the year 2006. But the claimant did not file any cross objections. After lapse of eight years, the claimant filed Cross Objections on 12.09.2014, which are not maintainable. The A.P.S.R.T.C. shall not be put to loss by directing it to pay interest for this period.
Learned counsel for the claimant relies on the judgment of this Court in support of his contention that Cross Objections are maintainable.
The points that arises for consideration are:
1. Whether the Cross Objections are maintainable?
2. Whether the accident occurred due to the negligence of the bus driver and what is just and reasonable compensation, to which the claimant is entitled?
POINT NO.1:
After amendment to the Motor Vehicles Act, there is no limitation for filing the claim petitions. Since there is no limitation for filing the claim petitions, there may not be any limitation for filing the cross objections. More over, the Cross Objections are filed during the pendency of the appeal. It is clear from the record that notice in the appeal was served on the claimant on 22.03.2006. But he filed cross objections on 12.09.2014. So, there is a clear delay in filing cross objections and the claimant is responsible for this delay. In view of the same, if there is any enhancement of compensation, the A.P.S.R.T.C. shall not be put to loss by directing it to pay interest for this period. Therefore, in case cross objections are allowed and any amount is enhanced, the claimant shall not be entitled to interest on the enhanced amount from 22.03.2006 to 12.09.2014.
In Ranjana Prakash V. Divisional Manager , the Apex Court categorically held that the claimants can question inadequacy of the compensation granted by the Tribunal, not only by preferring a separate appeal but also filing cross objections in the appeal filed by the owner or insurance company.
In the light of the above judgment, it is clear that the cross objections are maintainable.
POINT NO.2:
Coming to the aspect of negligence, admittedly one angular was placed on the top of the bus. It is not in dispute that the angular fallen on the ground at a great speed and after forcibly entered into the bus, hit the right leg of the injured/claimant. From this, it is clear that the angular was not properly tied on the top of the bus. It is the responsibility of the bus driver and conductor to tie the angular or any other object on the top of the bus. They should kept the angular inside the bus but not on the top of the bus. R.W.1, driver of the bus deposed that one passenger had laid the angular on the top of the bus and tied it. Whether it was tied by a passenger or any other person, the responsibility lies on the crew to examine all the articles placed on the top of the bus and see that no accident occurs, when the bus is running speedily. The evidence of R.W.2- conductor is also on the same lines. Therefore, there is nothing on the record to say that the driver of the bus is not responsible for the accident. So, accordingly, I am confirming the finding of the Tribunal on this aspect.
Now, coming to the quantum of compensation, to which the claimant is entitled, the claimant filed number of documents and also examined the doctors, who treated him as P.Ws 2 and 3. The claimant deposed about the nature of injuries and the hospitals, in which he had taken treatment.
P.W.2 is Dr.S.Ramesh Babu, who was working as Consultant, Orthopaedic Surgeon in Spot Hospital, Chennai. He examined the claimant while he was working as visiting Orthopaedic Surgeon at Surya Hospital. The claimant suffered Grade-III (B) compound communited Trochanteric fracture with subtrochanteric extention right, which was a grievous injury. He underwent surgical treatment on 18.07.1998 in the form of wound debridement and upper tibial pin traction. On 27.7.1998 he underwent plastic surgery. He requires future surgery to correct the deformity in his right hip and improve the limb length inequality and it may cost about Rs.1 lakh. He was walking with limb and having difficulty in squatting and sitting cross legged and there is shortening of 5 c.m. of right leg and pain in left knee and low back. His movements in the right hip are restricted. X-ray revealed mal-union of intertrachanteric fracture of right femur. P.W.2 estimated the physical disability at 50%. Because of the disability the claimant is having difficulty in doing his work as agriculturist and cannot walk long distances. Exs.A1, A5 A6 A8 A10 are issued by P.W.2 and Surya Hospital, Chennai. Ex.A15 is medical progress report and Ex.A16 is X-ray. P.W.2 in his cross examination admitted that though fracture is united, there is malunion.
P.W.3 is Dr.P.Krishna Reddy, working as Consultant Orthopaedic Surgeon in Appollo Hospital, Nellore. On 16.7.1998 he examined the claimant. The following injuries are sustained by the claimant:
i) a lacerated injury 5 x 5 over the right thigh ii) Curreny fracture upper end of right femur iii) Small abrasion over the right gray toe
Exs A2, A3, A7 and A9 issued by Appollo Hospital, Nellore.
The evidence of P.Ws 2 and 3 and the several documents filed by the claimant clinchingly establish that the claimant sustained permanent disability. Whether the physical disability results in loss of earnings or not depends upon the nature of job, which the injured was doing prior to the accident. In case of labourer, artisan, driver etc., where a person has sustained permanent disability, he will not be in a position to do the work which he was doing previously and in many cases, there may be 100% or atleast 75% of loss of earnings. But the same may not be the case in respect of the persons doing salutary nature of jobs, though they are in Government offices or otherwise or banks etc., In spite of physical disability, there may not be any actual loss of earnings. So it all depends upon the nature of job. In this case, according to the claimant, he was working as Branch Post Master and also working as a Supervisor under contractor and earning Rs.6,000/- p.m. He filed Exs A11 and A12 to show that he was having agricultural lands. No documents have been filed to show that he was working as Branch Post Master. Ex.A13 is the duty certificate issued by K.M.C.Constructions Limited. But the person, who issued the said certificate is not examined by the claimant. Therefore, the Tribunal not believed it. However, the said certificate shows that the claimant was drawing a salary of Rs.4,000/- p.m. Having regard to the income of agricultural labourer and agriculturist or being a semi-skilled person and in the light of the nature of work claimed to be done by the claimant, I consider it just and reasonable to take his income at Rs.4,000/- p.m. Though the doctors have stated that the claimant sustained 50% disability, but the same doctors deposed that the claimant has to undergo another operation. So what would be the disability after undergoing further treatment cannot be assessed at this stage. However, in the circumstances, the total loss of earnings can be taken at 25% without any difficulty. Therefore, the loss of earnings of the claimant are estimated at Rs.1,000/- p.m. and Rs.12,000/- p.a. The medical records show the age of the deceased as 40 years. The appropriate multiplier for the said age group is 15. If the same is calculated, the total loss of earnings would come to Rs.1,80,000/-. The Tribunal has already awarded Rs.81,735/- towards medical expenses and Rs.20,000/- towards pain and suffering and the same appears to be reasonable. The Tribunal awarded Rs.2,500/- towards transport charges. But having regard to the fact that the claimant has taken treatment on several occasions and he was admitted in the hospital several times, I consider it just and reasonable to award an amount of Rs.10,000/- towards transport charges, Rs.10,000/- towards extra nourishment and Rs.10,000/- towards attendant charges. Considering the evidence of P.W.2, I consider it just and reasonable to award an amount of Rs.50,000/- towards future medical expenses, Rs.10,000/- towards continuing disability and Rs.10,000/- towards amenities of life and loss of expectation of life. Thus, the claimant is entitled to a total compensation of Rs.3,81,735/-. The Tribunal awarded interest at 7.5% p.a. which appears to be just and reasonable and the same cannot be interfered with the same.
In Laxman @ Laxman Mourya v. Divisional Manager, Oriental Insurance Co.Ltd. , and in Rajesh v. Rajbir Singh , wherein the Apex Court categorically held that the Courts have to award just and reasonable compensation irrespective of the total amount claimed by the claimant. In the circumstances, I hold that even though the claimant claimed lesser amount, he can be awarded the amount which appears to be just and reasonable compensation. However, the claimant is directed to pay the deficit court fees on the amount now enhanced before drafting the decree.
Accordingly, the MACMA is dismissed and Cross Objections are allowed, enhancing compensation from Rs.1,67,235/- to Rs.3,81,735/-. The claimant shall not be entitled for interest from 22.03.2006 to 12.09.2014 on the enhanced amount. The enhanced compensation shall carry interest at 7.5% p.a. from the date of filing of cross objections till the date of realisation. However, in the circumstances, no costs.
As a sequel, the miscellaneous petitions, if any, pending in this appeal shall stand closed.
______________________ B. CHANDRA KUMAR, J.
Date: 21.10.2014