Shaik Gulab Sab v. The Managing Director, M.S.R.T.C., Vayuthuk Bhavan, Ananda Rao Naik

Judgment

Seeking further enhancement compensation, appellant/claim petitioner filed this appeal against the order dated

22.10.2005 passed in M.V.O.P.No.1994 of 2002 by the Motor Accident Claims Tribunal-cum-XXI Additional Chief Judge, Red Hills, Nampally, Hyderabad.

2. Brief facts of the case are that the claim petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs.4,00,000/- for the injuries received by him in the accident that took place on 6.04.2002, when he along with his friend was coming from Bijapur and got down the bus at Amrit Singh Punjab Dhaba, situated at outskirts of Zaheerabad. After taking meal, they were waiting for bus in front of Dhaba to go to Bidar. At that time at about 11.30 p.m., one bus bearing No.MH-31-AP 9033 came back suddenly with a high speed and in a rash and negligent manner and dashed the petitioner from his back side. As a result, he fell down and sustained fractures to pelvic bone, right hand, and back bone, and blunt injuries on chest, abdomen and other parts of the body. Immediately, he was shifted to Bidar and later he was admitted in NIMS hospital Hyderabad. The police, Zaheerabad Police Station registered a case in Crime No.126 of 2002 against the driver of the bus and after completion of investigation, they filed charge sheet. It was the case of the petitioner that he is a Government registered electrical contractor and he was earning a monthly income of Rs.7,000/-. He was an income tax assessee and also doing agriculture work.

3. The respondent-corporation filed counter denying the averments made in the petition regarding the age, income and the injuries received by him and prayed to dismiss the petition.

4. On the basis of the above pleadings, the Tribunal framed the following issues for trial.

1. Whether the petitioner received injuries in the accident on

6.04.2002 at 11.30 p.m., due to rash and negligent driving of RTC bus bearing No.MH-31-AP 9032 by its driver ?

2. Whether the petitioner is entitled to claim compensation from the respondents ? if so, to what amount and from whom ?

3. To what relief ? Before the Tribunal, on behalf of the petitioner PWs.1 & 2 were examined and Exs.A.1 to A.15 were marked. On behalf of the respondent, no oral or documentary evidence has been adduced.

5. On a consideration of the oral and documentary evidence adduced by the claim petitioner, the Tribunal on Issue No.1 held that though the driver of the RTC bus stated that the bus was driven by the employee of Dhaba, but however, allowing operation of the bus unauthorisidely by others, suggests negligence on the part of the bus driver. Further, there is no rebuttal evidence placed on record on behalf of the respondent to establish that the employee of Dhaba drove the bus. The contents of Ex.A.2-charge sheet do indicate that the driver of the bus himself drove the bus in a rash and negligent manner. Therefore, the accident took place due to the negligence of the driver of the bus, and accordingly answered the issue in favour of the injured. On Issue No.2 the Tribunal held that since the accident took place involving the bus, the respondent, being the owner of the said bus, is liable to pay compensation to the petitioner. To award just and reasonable compensation, the Tribunal divided the amount of compensation into two categories, i.e., special damages and general damages. With regard to special damages, the Tribunal observed that since the petitioner sustained injury to spine, pelvic bone, and to right hand and treated as inpatient for about 12 days in NIMS hospital, he must have used private transport for visiting the hospital and for returning to the house after treatment, and awarded a sum of Rs.5000/- towards transport charges, Rs.5000/- towards extra nourishment, Rs.10,000/- towards medical expenses and Rs.5000/- towards loss of earnings. Since the petitioner did not produce any evidence regarding damages to clothing and other articles, the Tribunal did not award any amount. Insofar as the general damages are concerned, the Tribunal observed that since the medical officer, who treated the petitioner was not examined, the injuries sustained by the petitioner are treated as simple injuries, and awarded a sum of Rs.20,000/- towards pain and suffering. Since the petitioner failed to establish that he suffered 35% disability as alleged by him, the Tribunal awarded a sum of Rs.10,000/- towards the inconvenience caused to him. In total, the Tribunal awarded a sum of Rs.55,000/- towards compensation to the petitioner. Hence the present appeal.

6. Heard learned counsel for the appellant/claim petitioner and learned counsel for the respondent.

7. Learned counsel for the appellant contended that the Court below erred in taking into account the injuries sustained by the appellant as simple injuries though they are very grave in nature, and ought to have considered the evidence of PW.2, the doctor, who issued the disability certificate assessing the disability at 35%. He also contended that though the appellant has filed bunch of medical bills amounting to Rs.17,052/- the Court below granted Rs.10,000/- only on the ground of non-examination of doctor, who treated the appellant. He further contended that since the appellant’s lower limb was shortened to ½ inch and as a result, he is not in a position to discharge his duties with proper perspective, the Tribunal ought to have awarded an amount of Rs.10,000/- each instead of Rs.5000/- towards transportation, loss of earnings and extra nourishment, and hence, he prays to enhance the compensation awarded by the Tribunal.

8. On the other hand, the learned counsel appearing for the respondent sought to sustain the order of the Tribunal.

9. As seen from the record, it is no doubt true that the accident occurred due to the negligence of the RTC bus driver. It is also true that the appellant received injuries to pelvic bone, spine, and right hand, and he was treated conservatively. He was treated as inpatient for about 12 days in NIMS hospital and after discharge he must have taken rest for a further period of 15 days for complete recovery. Though the doctor, who treated the appellant, was not examined, but however, PW.2, who issued disability certificate estimating the disability at 35%, opined that with the above disability the injured cannot sit for more time, cannot squat, cannot walk long distances and cannot lift weights and he needs support of hand-stick. He was limping with shortening of ½ inch. He cannot stand for more time and his marital life is also considerably affected. Therefore, I deem it appropriate to take the income of the appellant at Rs.5000/- p.m. and by taking into consideration disability at 35%, his annual income would come to Rs.21,000/- (Rs.5000 x 12 = 60,000 x 35%). Since the appellant was aged about 40 years at the time of accident, the appropriate multiplier, as per the judgment of the Supreme Court reported in Sarala Verma V Delhi Transport Corporation and Another[1], would be ‘15’. Thus the appellant is awarded a sum of Rs.3,15,000/- (21000 x 15), towards loss of future earnings and Rs.20,000/- towards pain and suffering. The amount awarded towards medical expenses at Rs.10,000/- is confirmed. Accordingly the appellant is awarded a total compensation of Rs.3,45,000/-. The enhanced compensation shall carry interest @ 6% p.a.

10. Accordingly, the Civil Miscellaneous Appeal is partly allowed. There shall be no order as to costs. ________________________ (GHULAM MOHAMMED, J.) 15th July, 2010 Js. [1] 2009 (6) SCALE 129