K Nagaraju Vs APSRTC

1. The M.A.C.M.A. No. 2725 of 2017 has been filed by the claim petitioner and the M.A.C.M.A. No.3094 of 2017 has been filed by the respondents/APSRTC against the decree and award dated 06.07.2017 passed in M.V.O.P. No. 6 of 2015 on the file of Motor Accident Claims Tribunal-cum-The Court of Chief Judge, City Civil Court, Hyderabad.

2. Heard Sri N. Vasudeva Reddy, learned Standing Counsel for APSRTC and Sri P. Ramakrishna Reddy, learned counsel for the petitioners.

3. For the sake of facility, the appellants are referred to with their status before the Tribunal.

4. The case of the claim petitioner is that on 26.10.2014 at about 6.15 p.m., while he was preceding on his motorcycle, at the outskirts of Guduru Village, one RTC bus bearing registration No.AP 36 Z 0245 of Warangal Depot (for short, ‘the bus’) driven in rash and negligent manner dashed the motorcycle from behind, as a result, he fell down, sustained fracture and crush injuries and during treatment his right lower limb was amputated above the knee level. Further pleaded that, he was aged about 28 years and as Hamali at Liquor Godown, Bhogram used to earn Rs.18,000/- per month and the injuries and disability had completely affected his income earning capacity. Thus claimed compensation of Rs.50,00,000/- towards medical expenditure and disability. The Tribunal on due enquiry, held that, in the accident there was contributory negligence of 25% on the part of the petitioner, as such though the computation was assessed at of Rs.54,62,452/-, granted Rs.40,96,839/- with 9% per annum from the date of petition.

5. In appeal the petitioner would contend that the Tribunal failed to properly appreciate the materials on record in assessing his monthly income, medical expenses and future recurring expenditure for artificial limb and colon bags. Further, the tribunal had relied on the statement of the de facto complainant, who was not an eye-witness to the occurrence and erroneously concluded contributory negligence on him at 25% although entire material is clearly establishing that the accident occurred due to negligent driving of the bus. Hence, prayed for reconsideration and to grant just compensation.

6. Per contra the respondents/TSRTC would contend that without there being any convincing evidence on record, the Tribunal erred in fixing contributory negligence on the part of driver of the RTC bus. More particularly the entries in the charge sheet are clear that the injured had skid and fell down on the road. The Court ought to have observed that the driver of the bus, even after possible efforts, could not stop the bus. Therefore, the incident was occurred due to sole negligence of the injured. Further, the Tribunal ought not to have taken Rs.10,000/-as monthly income without any supporting material and the future prospects and the disability at 85% are on higher side. Therefore, the Tribunal without considering the material granted excessive amounts. Thus, prayed for reconsideration.

7. We have considered the rival submissions of the learned counsel and passed the materials placed on record.

8. The facts of accident on 26.10.2014, involvement of the vehicle, injuries suffered and the amputation of lower limb of the petitioner are not in dispute.

9. In regard to rash and negligent driving of the driver of the accident, the plea of the petitioner was that the accident was occurred as the bus dashed his motorcycle from behind. The eye-witness/PW-1 is corroborating with the conclusion of the police investigation in the charge sheet which was against the driver of the bus. Against this material, respondent has not placed any rebuttal. Nonetheless, by the statement of the de facto complainant in F.I.R./Ex.A.1 the contributory negligence has been accounted by the tribunal. Even if the version in F.I.R./ Ex.A.2 is taken as it is, after the petitioner fell down the bus dashed the petitioner and ran over him. To substantiate the respondents version that the driver of the bus had made efforts to avert the accident for the reasons best known to the respondents, no material was brought onto record. Be that as it may, as the material on record are not indicating the petitioner by his voluntary negligent act fell down from the motorcycle and in absence of any evidence showing the bus driver’s effort to avert the accident and as the police investigation had revealed that the accident was for the negligent driving of the bus, merely basing on the fact that the petitioner had fallen from his scooter, attributing contributory negligence on him is found not justified. Therefore, in the factual position, the deduction of the Tribunal in regard to contributory negligence of the petitioner is liable to be and is accordingly set aside.

10. In regard to the injuries, the treating doctor/P.W.2 deposed that as the petitioner had suffered crush injury and it resulted in amputation of the lower limb above knee level the treatment for abridgement, perineum stratum are the damage caused to rectum and intestine. He also explained that the petitioner would not have control over stool, as such a colon bag was fixed with an advice to change it once in a week, throughout his life. The treating doctor assessed the disability as permanent at 85%. Further, he also referred to future medical expenses for removal of implants at Rs.2,00,000/- and Rs.5,00,000/- for artificial limb which has to be changed for every three years.

11. The Civil Assistant Surgeon as P.W.3 deposed that the disability was at 85% and the petitioner cannot continue his profession as Hamali.

12. It is fairly settled legal position that in assessment of compensation, the disability affecting the income earning capacity has to be taken into account. In the present case, there is no dispute in regard to the occupation of the deceased and it requires physical strength. The amputation coupled with the other injuries to rectum and intestine are making out that the petitioner would not be able to perform his occupational activity. In this position, though the physical disability has been calculated at 85%, as such disability is completely affecting his avocation, the disability affecting the income earning capacity though his avocation shall be taken at 100%.

13. As per the petitioner, he was Hamali at Liquor Godown, Bhogaram and used to earn Rs.25,000/- per month. The President/P.W.5 issued certificate/Ex.A.19 to this effect. However, as the certificate is not basing on record and considering the possibilities including the wages of manual labour at relevant time a monthly income of Rs.10,000/- is found reasonable, hence we affirm the tribunal view on this aspect.

14. As per the directions in National Insurance Company Limited Vs. Pranay Sethi and others (2017) 16 SCC 860 and Pappu Deo Yadav v. V. Naresh Kumar and others 2020 SCC Online SC 752 for the age and nature of employment of the petitioner 40% of the future prospects has to be added. This makes the monthly income of the deceased at Rs.14,000/- and annual income at Rs.1,68,000/-. As the petitioner is suffering complete disability, this amount has to be multiplied with relevant multiplier to the age of the petitioner as prescribed in Sarla Verma 2009 ACJ, 1298 (SC) i.e. 17, that brings the total to Rs.28,56,000/-. The petitioner is entitled for this amount for loss of future earnings on his avocation due to physical disability. Having regard to the evidence of P.W.6 and Ex.A.10, Ex.A.9 the tribunal had awarded Rs.10,99,452/-towards medical bills and Rs.5,00,000/- future medical expenses, for colon bag and for artificial limb Rs.10,00,000/-and Rs.72,000/- for pain and sufferings, Rs.40,000/- for loss of amenities, attendant & transport charges and Rs.40,000/-for extra-nourishment. These amounts being reasonable, confirmed.

15. For the aforesaid, the petitioner is entitled for the following amounts.

16. Accordingly, the respondents are directed to deposit Rs.56,07,473/- with 9% interest per annum from the date of petition till realization within four weeks from the date of receipt of a copy of the judgment by setting of the amounts already deposited. Thereupon the petitioner is permitted to withdraw the entire amounts.

17. Accordingly, MACMA No. 2725 of 2017 is allowed and the MACMA No.3094 of 2017 is dismissed without costs.

As a sequel, miscellaneous petitions, pending if any, shall stand closed.