G. Venkateshwarlu vs APSRTC

B. Chandra Kumar, J.—This appeal by the claimant challenging the award dated 30.09.2004 passed in O.P. No. 1855 of 2002 by the Motor Accident Claims Tribunal-cum-XI Additional Chief Judge, City Civil Court (Fast Track Court), Hyderabad (for short ''the Tribunal'').

The parties hereinafter referred to as arrayed before the Tribunal for the sake of convenience.

The brief facts of the case are as follows:

The claimant was aged about 20 years studying 2nd year B.Sc. Computers. On 28.03.2002, the claimant appeared for his examination at Himayat Nagar and was returning home on motorbike bearing No. AP-24-E-8831 along with his friend Ravi Kiran. At Gaddi Annaram cross roads they stopped their motorbike as there was red signal. The bus bearing No. AP-10-Z-1458 came there and stopped behind the motorbike. On seeing the green signal both the vehicles started moving. It is alleged that the driver of the bus had driven the same in rash and negligent manner at high speed and consequently the bus dashed the motorbike from it''s behind. As a result of which the claimant and the pillion rider fell down and sustained injuries. The claimant sustained fractures whereas his friend sustained minor injuries. The claimant was shifted to Yasodha Hospital, Malakpet from there he was shifted to Sairam Multi Specialty Hospital, Dilsukhnagar, wherein he had taken treatment as inpatient for 26 days and again he was readmitted and operation was conducted. The claimant could not appear for examination and he has lost one academic year. In spite of treatment, the fractured bones were not united and the claimant became handicapped. It is also his case that in view of the disability, he is unable to participate in the games which he used to participate prior to the date of accident. The claimant claimed a total compensation of Rs. 2,00,000/-.

The respondents filed counter. The specific case of the respondents is that no complaint was lodged to the police on 28.03.2002 involving the bus of the respondents.

The Tribunal framed the following issues:

1) Whether the petitioner received injuries in the accident on 28.03.2002 at about 05.00 PM due to rash and negligent driving of the APSRTC bus bearing No. AP-10-Z-1458, 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?

On behalf of the claimant, the claimant himself was examined as PW. 1 and Dr. S. Vasudeva Rao was examined as PW. 2 and Exs. A1 to A7 were marked. On behalf of respondents, the driver of the bus was examined as RW. 1 and no documents have been marked.

The Tribunal came to the conclusion that there was delay in reporting the matter to the police and the claimant failed to prove the accident and accordingly dismissed the claim petition.

The main contention of the learned counsel for the appellant is that the police have investigated and filed charge sheet against the driver of the bus and the driver who was examined as RW. 1 himself admitted that he surrendered before the police and facing the criminal trial. It is further argued that the Court failed to appreciate the evidence on record and came to a wrong conclusion. It is also argued that the claimant sustained permanent disability, so reasonable compensation may be awarded.

The learned counsel for APSRTC argued that there is no evidence to show that the accident occurred on 28.03.2002 at about 05.00 PM involving the offending bus.

Sri K. Subba Rao, learned counsel for the appellant has relied on judgment reported in Kishan Gopal and Another Vs. Lala and Others, , in support of his contention that where the Insurance Company has not challenged the oral evidence and not adduced evidence in rebuttal, the evidence of claimant should not be disbelieved. He has also relied upon the judgment of Apex Court in case between Parmeshwari Vs. Amir Chand and Others, , in support of his contention the strict principles of proof as required in criminal case are not attracted while dealing with the claim petitions raising under Motor Vehicles Act. Reliance is placed on the judgment in case between BIMLA DEVI AND OTHERS Vs. HIMACHAL ROAD TRANSPORT CORPORATION AND OTHERS 2012 (4) ALD 147 (SC). Reliance is placed on the judgment in case between Kusum Lata and Others Vs. Satbir and Others, , in support of his contention that when no cogent reasons are assigned, the evidence of witness should not be disbelieved. He has also relied on a judgment reported in Ravi Vs. Badrinarayan and Others, , wherein it is observed that delay in lodging FIR cannot be the ground for rejecting the claim petition. The claim petitions have to be dealt by summary procedure, strict proof of rash and negligent as required to be established in criminal case should not be insisted in these proceedings arising out of MV Act, 1988. Mere delay in lodging complaint to the police cannot be the ground to reject the case of the complainant. When an accident occurred, normally human conduct would be to make efforts to provide immediate treatment to the injured and to save his life. The kith and kin of the injured are not expected to rush to the police station at the first instance and wait till FIR is registered and then to think of providing treatment to the injured. When life is in danger, everybody would be eager to save the life. The Tribunal should consider what would be the normal human conduct in such circumstance. It has to be seen that where it is clear that no accident occurred and the vehicle is falsely implicated then the Tribunal may dismiss the claim petition, but before that every effort have to be made to examine the entire evidence with care and caution.

In this case, admittedly, there is delay in lodging report to the police. The accident occurred on 28.03.2002. However, the report was given on 30.03.2002. It appears that after receiving intimation one head constable Mallesham went to Sairam Multi Specialty Hospital and recorded the statement of the injured in the said hospital and then proceeded to police station and basing upon the same, the FIR was issued. It is not clear when the police received the hospital intimation. The Tribunal should have examined the reason for the delay. There may be delay in sending intimation from the hospital. There may be delay in shifting the injured from one hospital to another. The injured may be unconscious. Sometimes police have to wait, till the injured regains consciousness.

It is not in dispute that the police have completed investigation and filed charge sheet against the driver of the bus. The driver of the bus was examined as RW. 1. RW. 1 admitted that the police filed charge sheet against him and that he surrendered and obtained bail and that he was facing the trial. According to RW. 1 on 28.03.2002, he was driving the bus bearing No. AP-10-Z-1458 and he stopped the bus when there was red signal and after green signal he started the bus and was taking ''U'' turn to proceed to Amberpet. His case is that he never caused any accident and if at all he had caused the accident the public would have obstructed the bus.

According to the injured, who was examined as PW. 1, on 28.03.2002 he was returning from Himayat Nagar to Dilsukhnagar on motorcycle bearing No. AP-24-E-8831. His further case is that he stopped his motorcycle on seeing red light and on seeing green light when he was about to proceed the bus came from his behind being driven by its driver in rash and negligent manner at high speed and hit the motorcycle and consequently he fell down and sustained injuries. His further case is that he was shifted to Yasodha Super Specialty Hospital, Malakpet from there to Sairam Multi Specialty Hospital, Dilsukhnagar. His further deposed that on the next day i.e., on 29.03.2002 the police came to Sairam Multi Specialty Hospital and recorded the statement, however, he does not know the name of the police constable who recorded his statement. He further deposed that he does not remember whether the statement was recorded on 29.03.2002 or 30.03.2002.

The main observation of the Tribunal is that the claimant has not examined another boy Ravi Kiran who accompanied the claimant at the time of accident. The Tribunal also observed that the police have not recorded the statement of Ravi Kiran. Recording the statement of witnesses is not in the hands of the injured/claimant, it is duty of the Investigating Officer. Merely because the investigating officer has failed to record the statement of an eye witness or another injured, the version of the claimant/injured cannot be disbelieved on that ground. It has to be seen that the claimant himself has categorically mentioned that he along with his friend were proceeding on motorcycle. He never tried to suppress the name of his friend. His version is consistent and cogent. The crucial document is Ex. A3. Ex. A3 is the medico-legal record from Yasodha Super Specialty Hospital. The Doctor noted the brief history of the case as follows: "Alleged to have met with road traffic accident when they were travelling by two wheeler, hit by an R.T.C. bus at 05.30 PM on 28.03.2002, opposite to Medwin Diagnostic Centre at Gaddiannaram ''X'' roads near Konark Towers, Dilsukhnagar, Hyderabad". Thus the Doctor noted the date, time and place of accident. This clearly shows that the Doctor after ascertaining from the injured mentioned the above particulars in the medico-legal record. There is no need to disbelieve the above endorsement of the Doctor. Admittedly, the claimant was shifted to another hospital by name Sairam Multi Specialty Hospital. The above referred medico-legal record Ex. A3 also shows that the police intimation was given vide MLC. No. 5622. It appears that as the claimant was shifted from Yasodha hospital to Sairam Multi Specialty hospital, there was some delay in recording the statement of the injured by the police. The evidence of PW. 1 is corroborated with the contents of Ex. A3 as referred above. Thus, it is clear that there is evidence to show that the claimant informed the Doctor about the accident, involvement of bus, hospital intimation and recording of the statement of the injured, the above evidence clinchingly establishes that the RTC bus hit the motorcycle of the claimant on the date of accident. The evidence of RW. 1 is evasive and moreover he himself admitted that he surrendered and obtained bail. Merely because public have not stopped his bus, it does not mean that no accident occurred. It is the duty of the Tribunal to examine the entire evidence i.e., oral and documentary before reaching to a conclusion. Merely because there is some delay the claim petition cannot be dismissed, unless it is clear that the claim itself is bogus or that no accident occurred. Accordingly, I hold that the claimant has proved the accident involving the bus of the respondents.

According to the claimant, his left leg was fractured and he had also received other injuries. His further case is that he was shifted to Yasodha Super Specialty Hospital, Malakpet from there to Sairam Multi Specialty Hospital, Dilsukhnagar and he was operated in Sairam Multi Specialty Hospital and had taken treatment as inpatient for one month. Again he joined in Satya Hospital, Malakpet and underwent operation for removal of implanted plate. According to the claimant, he had spent about Rs. 1,00,000/- towards medical expenses. His further case is that he is unable to walk for little distance and that he has lost one academic year of B.Sc. graduation. During cross-examination he has admitted that he has completed degree course in the year 2003. He further admitted that he has not filed any document to show that he has lost one academic year. PW. 2 is the Doctor S. Vasudeva Rao. He is working as civil surgeon specialist in Golconda area hospital, Hyderabad, previously worked as consultant to Sairam Multi Specialty Hospital, Dilsukhnagar. According to PW. 2, he had treated the claimant and the claimant was admitted on 29.03.2002 and discharged on 24.04.2002. His evidence further shows that the claimant sustained fracture of both bones of left leg distal 1/3rd, crush injury of upper part of the leg, 2 operations were conducted. PW. 2 deposed that the fractured bones united and now the claimant can attend his normal activities. However, he opined that the claimant may have swelling of left leg in covering long distance or while sitting for a long time during journeys. According to PW. 2, the claimant advised one year rest. According to PW. 2, Sairam Hospital has charged and collected Rs. 74,550/- and Satya Hospital has charged and collected Rs. 15,630/-.

From the above evidence, it is clear that fractured bones have been united. It is also clear that the claimant has not lost one academic year. The total medical expenses comes to Rs. 90,180/-. Accordingly, the claimant is awarded an amount of Rs. 1,00,000/- towards medical expenses and miscellaneous expenses. The claimant suffered fractures of both bones of left leg and also crush injury and he had undergone two operations. In the circumstances, I consider it just and reasonable to award an amount of Rs. 30,000/- towards pain and suffering. I also consider it just and reasonable to award Rs. 5,000/- towards transport charges, Rs. 5,000/- towards attendant charges and Rs. 10,000/- towards extra nourishment. According to PW. 2, since the claimant will have some difficulty for prolonged walking, I consider just and reasonable to award an amount of Rs. 20,000/- towards discomfort and continuing disability. The claimant was advised prolonged bed rest. In the circumstances, the claimant is awarded Rs. 10,000/- towards miscellaneous expenses. Thus, the total compensation comes to Rs. 1,80,000/-.

Accordingly, the appeal is allowed awarding a total compensation of Rs. 1,80,000/- with interest @ 9% per annum. No costs.

Miscellaneous Petitions, if any, pending in this appeal shall stand closed.