Karnataka High Court
Andhra Pradesh State Road Transport ... vs Sri R Subbaiah on 15 December, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.2713/2013 (MV)
BETWEEN:
ANDHRA PRADESH STATE ROAD
TRANSPORT CORPORATION
MUSHIRABAD
HYDERABAD ... APPELLANT
(BY SRI D.VIJAYA KUMAR, ADVOCATE)
AND:
SRI R. SUBBAIAH
S/O VENKATAIAH
AGED ABOUT 57 YEARS
PERMANENTLY
R/AT NO.100, WARD NO.16
RAJIV GANDHINAGARA
DEVASANDRA, K.R.PURAM
BENGALURU - 560 036 ... RESPONDENT
(BY SRI K.T.GURUDEVA PRASAD, ADVOCATE)
THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 14.12.2012
PASSED IN MVC NO.6829/2011 ON THE FILE OF THE 13TH
ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF
SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF
RS.9,23,400/- WITH INTEREST @ 6% P.A., ON RS.8,23,400/-
(EXCLUDING FUTURE MEDICAL EXPENSES) FROM THE DATE OF
PETITION TILL THE DATE OF DEPOSIT.
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THIS M.F.A., COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellant- APSRTC., and the learned counsel appearing for the respondent- claimant.
2. This appeal is filed by the appellant-APSRTC., challenging the judgment and award dated 14.12.2012 passed in M.V.C.No.6829/2011 on the file of the Motor Accident Claims Tribunal, Court of Small Causes at Bengaluru (SCCH-15) ['the Tribunal' for short].
3. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.
4. The factual matrix of the case of the claimant before the Tribunal is that on the date of the accident i.e., on 20.09.2011 at about 9:00 a.m, the petitioner was pedestrian and walking beside the divider i.e., at the edge of the road to cross the road in front of Ashraya Hotel, Battarahalli, Bengaluru, at that time, a APSRTC., bus came in a rash and negligent 3 manner and dashed against the petitioner. Due to the impact, the petitioner fell down and sustained grievous injuries. Immediately after the accident he was shifted to Bowring and Lady Curzon Hospital, wherein, he was treated as an inpatient from 20.09.2011 to 26.10.2011. He has sustained crush injury to his left leg and as per advice of the Doctor his left leg below knee was amputated. Amputation was conducted to left leg. Due to the amputation, he cannot stand, walk and climb the stairs.
5. In pursuance of the claim petition, APSRTC., appeared and filed the written statement, wherein, the contention was taken that on 20.09.2011 at about 9:00 a.m, the driver of APSRTC., Garuda Volvo bus was driving the bus carefully and cautiously from Vishakapatnam to Bengaluru when the bus was came near Ashraya Hotel, Bettarahalli, Bengaluru, it is a National Highway No.4; a six line road with road divider and on either side of the road there is a barricade so that except the motor vehicle no human beings are walk on the road for any reason. The accident was on account of sole negligence on the part of the claimant himself. When the bus was crossed him at 4 that time he fell down on the road and his left leg came in contact with the right side hind wheel of the bus and there was no chance for the driver of the APSRTC., Bus to avoid the accident. Hence, took the contention that the accident was on account of the sole negligence on the part of the claimant.
6. The claimant in order to substantiate his case, he examined himself as P.W.1 and also examined the Doctor as P.W.2 and got marked the documents as Exs.P1 to P13. On the other hand, the respondent - APSRTC., has examined one witness as R.W.1, who is the driver of the offending vehicle and not marked any documents.
7. The Tribunal after considering both oral and documentary evidence available on record, allowed the claim petition in part granting compensation of Rs.9,23,400/- with interest at 6% p.a. from the date of petition till the date of deposit of compensation amount in the Tribunal and fastened the liability on the respondent - APSRTC. Hence, the present appeal is filed by the appellant - APSRTC.
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8. The main contention of the learned counsel appearing for the appellant - APSRTC., is that the Tribunal failed to consider the material available on record and took the specific defense in the written statement that the accident was on account of the sole negligence on the part of the claimant. He came under the rear wheel of the bus. Hence, it is clear that a question of avoiding the accident does not arise. All these materials are not considered by the Tribunal and the Tribunal erroneously came to the conclusion that the accident was on account of the negligence on the part of the driver of the offending vehicle. In the cross-examination of R.W.1 also, nothing is elicited to disbelieve the case of the appellant.
9. The learned counsel also would vehemently contend that the compensation of Rs.9,23,400/- awarded by the Tribunal is exorbitant. According to the claimant himself, he was aged about 60 years and the compensation awarded on different heads are also on higher side. The Tribunal ought not to have awarded compensation of Rs.5,18,400/- on the head of loss of future earning, when there is a clear admission that he has 6 continued the job. Hence, it requires an interference of this Court.
10. Per contra, the learned counsel appearing for the respondent - claimant would submit that it is a case of amputation above the knee of left leg. The compensation awarded on the head of pain and suffering is not exorbitant and the compensation awarded on other heads are also very meager. Even this Court can invoke Order 41 Rule 33 of CPC., to enhance the compensation and no future prospects has been considered while awarding the compensation. Hence, it requires an interference of this Court.
11. Having heard the respective counsel and on perusal of the material available on record, the points that would arise for consideration of this Court are:
(i) Whether the Tribunal has committed an error in not taking the contributory negligence as contended in the appeal?
(ii) Whether the Tribunal has committed an error in awarding exorbitant compensation as contended in the appeal?7
(iii) Whether it is a case for invoking Order 41 Rule 33 of CPC., to enhance the compensation?
(iv) What order?
Point No.(i):
12. Having heard the respective counsel and on perusal of the material available on record, the accident was occurred on 20.09.2011 at about 9:00 a.m. The case is registered against the driver of APSRTC., bus. The Police have investigated the matter and filed the charge-sheet. The very contention of the learned counsel appearing for the APSRTC., is that the injured fell down and came in contact with rear wheel of the bus. The material discloses that the rear wheel of the bus ran over the injured. On perusal of the contents of the complaint, wherein, a friend of the injured given the complaint in terms of Ex.P1. An allegation is made that the Bus dashed against the injured; as a result, he fell down on the road. Immediately, he was shifted to the hospital in an ambulance. This complaint was given on 20.09.2011 at 11:00 a.m., and an accident was occurred at 9:00 a.m., within a span of two hours, a complaint was given. The Police have investigated the matter and filed the charge-sheet against the driver of the offending vehicle. In the charge-sheet, 8 an allegation is made that he drove the vehicle in a rash and negligent manner, at that time, the injured was walking near the road divider of the right side of the road. The material discloses that the injured working as Sweeper in BBMP.
13. In the cross-examination of P.W.1, it is admitted that it is a National Highway i.e., in front of the Ashraya Hotel, Battarahalli, Bengaluru. He also admits that there is a barricade on either side of the pathways. A suggestion was made that there is a pathway and the same is denied. He also admits that he has lodged a complaint. Again he says that one Ravi has lodged a complaint. The said Ravi is a friend of his son.
14. In the cross-examination of R.W.1, he admits that the Police have filed the charge-sheet against him. He also admits that he has not lodged a complaint against the injured and the accident has not taken place due to his negligence. However, he volunteers that he has given the complaint to the police, but admits that he was not produced copy of the complaint before the Court. He does not know the result of the criminal case. He has not received the summons from the Criminal Court. But he admits that after the accident he went to 9 the Police Station, took bail and thereafter went to Vishakapatnam.
15. Having heard the respective counsel and on perusal of the material available on record and also the grounds urged in the appeal, the main contention is that the Tribunal failed to take note of the place of accident. Admittedly, the place of accident is Highway i.e., in front of the Hotel and also no dispute with regard to there is a barricade to separate the road and the fact is that the driver of APSRTC., bus instead of driving the bus on the left side of the road, he went towards the right side i.e., near the road divider and also admittedly, the injured is a Sweeper working in BBMP., and when the vehicle was moving inside the City that too in front of a Hotel ought to have taken care of while moving, the same has been observed by the Tribunal while considering the negligence. The main contention of the learned counsel appearing for the APSRTC., is that the injured fell down and came under the rear wheel of the bus. But in the cross- examination, he categorically admits that the Police have filed the charge-sheet against him, but he has not lodged any complaint against the injured that the accident has not taken 10 place due to his negligence. Only after thought, he set up a defense that the accident was occurred due to sole negligence on the part of the injured. What prevented him in lodging a complaint when there was no negligence on his part, is not explained. Instead, he admitted in the cross-examination that he has not lodged any complaint against the injured. He volunteers that he has given the complaint to the Police, but no document of giving any complaint is placed before the Court. He categorically admits that he has not produced the copy of the complaint given to the Police and even before the Court. Even though he says that the case has been registered and charge- sheet has been filed, he has not received any summons from the Court, but, immediately after the accident, he went to Vishakapatnam. Having taken note of this admission available on record, the very contention of the learned counsel appearing for the APSRTC., is that the accident was occurred on account of the sole negligence on the part of the driver of the bus, cannot be accepted.
16. The very admission given by R.W.1 takes away the very defense of APSRTC. Hence, I do not find any error 11 committed by the Tribunal in coming to the conclusion that the accident was on account of the sole negligence on the part of the driver of the bus, who drove the vehicle. He was near the side of road divider and also it is elicited from the mouth of P.W.1 itself that there are barricades on either side of the road. When such being the case, the driver of APSRTC., was driven the bus on the left side of the road. Instead of that he came to the right side near the road divider and caused the accident. Hence, I do not find any force in the contention of the learned counsel appearing for the APSRTC., and I answer point No.(i) as 'negative'.
Point Nos.(ii) & (iii):
17. The main contention of the learned counsel appearing for the APSRTC., is that the Tribunal has committed an error in awarding exorbitant compensation. Apart from that, the learned counsel would vehemently contend that when he was admitted in the cross-examination now he is getting a salary of Rs.15,000/- ought not to have awarded the compensation on the head of future loss of income. There is a force in the contention of the learned counsel appearing for the appellant that when the injured himself has given an admission that now 12 he is getting salary of Rs.15,000/- per month, the Tribunal ought not to have awarded the compensation on the head of future loss of income.
18. No doubt, it is a case of amputation. The Doctor diagnosed the injuries i.e., Type III Open (compound) fracture of both bones of left leg and there was a crush injury to the left leg. An operation was below knee Guillotine amputation of left leg done on 20.09.2011. Left above knee (Revision) amputation and closure done on 14.10.2011. He was discharged on 26.10.2011. The disability assessed by the Doctor to the extent of 85%.
19. In the cross-examination, a suggestion was made that he has not conducted the surgery to the petitioner, the same was denied. It is elicited that he has not produced the x- ray prior to the surgery and after the surgery. The x-ray films are available in the Department and he can produce the same before the Court. He has not purchased any artificial limb after amputation. He has not given any letter to the petitioner with regard to the cost of the artificial limb. It is suggested that he has falsely deposed that the cost of the artificial limb was Rs.2 13 Lakhs and suggested that the whole body disability comes to 34%, the same is denied.
20. Having considered both oral and documentary evidence available on record, this Court has to re-visit with regard to the compensation awarded by the Tribunal. Having considered the nature of injuries i.e., both bone fractures as well as the crush injury which has resulted at the first instance amputation below the knee and subsequently after the Revision, the amputation was done above the knee in terms of the evidence of the Doctor. Hence, it is a clear case of an amputation above the knee.
21. Now, this Court has to consider with regard to the quantum of compensation is concerned, the Tribunal awarded Rs.1,25,000/- on the head of pain and sufferings, which is meager, when he was an inpatient for a period of 25 days, subjected to surgery twice and amputation was done at the first instance below the knee and after the Revision above the knee. Hence, it is appropriate to award an amount of Rs.2,00,000/- on this head.
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22. P.W.1, in his evidence deposed that he has spent Rs.50,000/- towards medical expenses. The Tribunal awarded Rs.25,000/- towards medical bills, Rs.10,000/- towards food and nourishment and Rs.10,000/- towards conveyance, attendant charges and follow-up treatment. In total, Rs.45,000/- was awarded towards medical expenses. He has produced the medical bills to the tune of Rs.9,918/-. Hence, the same is rounded off to Rs.10,000/- on the head of medical expenses. Taking into consideration the period of treatment in the Government Hospital, the Tribunal came to the conclusion that he might have purchased the medicines from private shop as such he is entitled for a sum of Rs.25,000/-. In the absence of medical bills ought not to have granted an amount of Rs.25,000/-. However, he was an inpatient for a period of 25 days. Hence, it is appropriate to award an amount of Rs.25,000/- on the head of food and nourishment and conveyance, attendant charges and follow-up treatment. In all, the claimant is entitled for compensation of Rs.35,000/- as against Rs.45,000/- awarded by the Tribunal on these heads. 15
23. It is the contention of the claimant that he was working as a Sweeper in BBMP., and earning Rs.15,000/- per month. In order to substantiate his contention, he has produced the bank statement. The Tribunal considered the income of Rs.6,000/- per month as against the document of Ex.P7. Ex.P7 is the Notarised copy of the bank pass book maintained by him in the Corporation Bank. The average salary of Rs.12,000/- was received in the said period and subsequent to the accident also he has received an amount of Rs.14,000/- on 06.03.2012. In the cross-examination also, he has admitted that now he was getting a salary of Rs.15,000/- i.e., in the month of October 2012. Hence, this Court can take the average income of Rs.12,000/- as his salary at the time of the accident. He has not produced any documentary proof with regard to the leave which he has applied. He met with an accident on 20.09.2011. Hence, it is appropriate to consider the loss of income since he was in the hospital for a period of 25 days and also it is a case of amputation. Hence, it is appropriate to take the loss of income for a period of six months and the average income of Rs.12,000/-, the loss of earning during the laid up period comes to Rs.72,000/-.
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24. I have already pointed out that the Tribunal has committed an error in calculating the future loss of income in spite of an admission given by the claimant. Hence, question of awarding compensation on the head of future loss of income does not arise. However, the Tribunal failed to take note of the nature of injuries and it was a case of disability to the extent of 85% when the leg was amputated above the knee and loss of amenities awarded Rs.75,000/- is very meager. Hence, the same has to be enhanced to Rs.2,00,000/-.
25. The Tribunal has awarded an amount of Rs.1,00,000/- towards future medical expenses. The Doctor has deposed with regard to the artificial limb, it costs about Rs.2 Lakhs and the Tribunal awarded an amount of Rs.1 Lakh. No doubt, P.W.2, the Doctor in his evidence admits that he has not purchased the artificial limb. The learned counsel appearing for the APSRTC., submits that when he had not purchased the artificial limb, the question of awarding compensation for artificial limb does not arise. The said argument cannot be accepted. The Court cannot expect him to purchase the artificial limb at his cost and the Court has to consider the same. 17
26. The Apex Court in the judgment in Civil Appeal Nos.9070-9071/2022 arising out of Special Leave Petition (Civil) Nos.481-482 of 2019 dated 09.12.2012 in a case of amputation, taking note of the fact that the appellant was aged about 37 years, in Para No.23 held that, as per the current compensation given for the prosthetic limb and its maintenance, it would last the Appellant for only 15 years, even if we were to assume that the limb would not need to be replaced after a few years. The Appellant was only 37 years at the time of the accident, and it would be reasonable to assume that he would live till he is 70 years old if not more. We are of the opinion that the Appellant must be compensated so that he is able to purchase three prosthetic limbs in his lifetime and is able to maintain the same at least till he has reached 70 years of age. For the Prosthetic limbs alone, the Appellant is to be awarded compensation of Rs.7,80,000 and for maintenance of the same, he is to be awarded an additional Rs.5,00,000/-.
27. Having considered the principles laid down in the judgment, the Doctor has deposed that it requires Rs.2,00,000/-. The Apex Court also awarded the same at the 18 rate of Rs.2,60,000/- in a case of artificial limb and hence, the appellant is entitled for Rs.2,60,000/- towards artificial limb. Having taken note of the fact that he is aged about 60 years at the time of the accident and apart from that, the Tribunal also awarded Rs.5,000/- for additional maintenance of artificial limb, hence, in this case, the claimant is entitled for compensation of Rs.50,000/- for maintenance of the artificial limb. Hence, in all, the claimant is entitled for compensation of Rs.8,17,000/- as against Rs.9,23,400/- awarded by the Tribunal.
28. Having considered the material on record, it is a fit case for invoking Order 41, Rule 33 of CPC and it is a settled law that, if injustice is caused to the victims of the accident, the Court can invoke Order 41, Rule 33 of CPC. Under the circumstances, it is the duty of the Court to award just and reasonable compensation. Hence, I answer point Nos.(ii) and
(iii) accordingly.
Point No.(iv)
29. In view of the discussions made above, I pass the following:
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ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the
Tribunal dated 14.12.2012 passed in
M.V.C.No.6829/2011, is modified granting
compensation of Rs.8,17,000/- as against
Rs.9,23,400/- with interest at 6% per annum from the date of petition till deposit, excluding the interest for the amount of Rs.2,60,000/-
towards artificial limb and Rs.50,000/- towards its maintenance.
(iii) The appellant-APSRTC is directed to pay the compensation amount with interest within six weeks from today.
(iv) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith.
(v) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.
Sd/-
JUDGE cp*/ST