Mr. Syed Murfad Peer vs The Vice Chairman and Managing Director, A.P.S.R.T.C. <BR> Andhra Pradesh State Road Transport Corporation Vs Mr. Syed Murfad Peer

These two appeals arise out of the same impugned judgment and award dated 24.3.2006 passed in MVC No. 1575/2005 on the file of the XIX Addl. SCJ. Member MACT, Court of Small Causes, Metropolitan Area, Bangalore (SCCH-17) (hereinafter referred to as the Tribunal for short).

The Tribunal by its impugned judgment and award, awarded a sum of Rs. 1,75,000/- as compensation with interest at 6% p.a. on account of the injuries sustained by the claimant in the road traffic accident. The claimant has filed the appeal-MFA 11043/06 contending that the quantum of compensation awarded by the Tribunal is inadequate and it requires enhancement and the Andhra Pradesh State Road Transport Corporation (hereinafter referred to as ''the Corporation'' for short) has filed the appeal-MFA 5990/07 contending that, the finding of the Tribunal that the accident has occurred due to the rash and negligent driving of the offending bus by its driver and thereby fixing the liability on the part of the Corporation is not just and proper and further, contended that the quantum of compensation awarded by the Tribunal is excessive and is liable to be reduced.

The brief facts of the case are as follows:

The claimant claims to be aged about 24 years, a student prosecuting his studies in 2nd year P.G. Course (M.S) in KMC, Manipal. He was hale and healthy prior to the accident. He contended that on 14.11.2004 at about 5.15 a.m. when he was proceeding in the Autorickshaw bearing No. KA05 2741 from Majestic towards Basavanagudi, on Sheshadri road, from west to east, and when it came near Subbanna Circle, at that time, an APSRTC bus bearing No. AP-11Z 3937, driven by its driver at high speed, in a rash and negligent manner came and dashed against the Autorickshaw and also the tempo traveler which was coming behind the Autorickshaw. Due to the impact, the claimant sustained grievous injuries such as, "1. Fracture of right 5th metacarpal neck. 2. Fracture right clavicle. 3. Comminuted fracture shaft of left femur. 4. Tenderness on ribs." He was admitted to Bharthi Nursing Home, Bangalore. He was an inpatient for 6 days in the hospital and underwent two surgeries. He has spent considerable amount towards medical expenses and conveyance, nourishing food and attendant charges. The doctor has assessed the disability to his right upper limb to the extent of 30%, 40% to the left lower limb and 25% to the whole body. Taking all these relevant factors into consideration, he filed the claim petition before the Tribunal, praying for grant of compensation. The Tribunal, in turn, after assessing the oral and documentary evidence on record and further, taking into consideration the age, occupation and the income of the Appellant, allowed the claim petition in part awarding compensation of Rs. 1,75,000/- under different heads with interest at 6% p.a. from the date of the petition till realisation.

The principal submission canvassed by the counsel for the claimant is that the Tribunal has erred in awarding inadequate compensation towards pain and sufferings, medical expenses and loss of amenities, discomforts and unhappiness, loss of income during laid-up period and future medical expenses and therefore the impugned judgment and award may be modified, by awarding reasonable compensation.

As against this, the learned Counsel for the Corporation, interalia, contended and submitted that the finding of the Tribunal that the accident has occurred due to the rash and negligent driving by the driver of the offending bus and thereby fixing the liability on the part of the Corporation is not justifiable and further, the quantum of compensation awarded by the Tribunal is also excessive and is liable to be reduced by modifying the impugned judgment and award.

After careful consideration of the submission of the learned Counsel for the parties, the points that arise for consideration in these appeals are as follows:

i) Whether the contributory negligence fixed by the Tribunal solely on the driver of the offending bus belonging to the Corporation is just and proper?

ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?

Re: Point No. 1:

On a careful evaluation of the judgment and award of the Tribunal and after perusal of the original records available on record, what emerges is that on 14.11.2004 at about 5.15 am. when the claimant was proceeding in the Autorickshaw bearing No. KA-05/2741 from Majestic towards Basavanagudi, on Sheshadri road, from west to east, and when the Autorickshaw came near Subbanna Circle in the right direction on the correct side of the road, at that time, an APSRTC bus bearing No. AP-11Z 3937, driven by its driver at high speed, in a rash and negligent manner suddenly intercepted Subbanna Circle junction, and dashed against the Autorickshaw and thereafter against the tempo traveler which was coming behind the Autorickshaw. Due to the impact, the driver of the Autorickshaw died on the spot and the claimant sustained grievous injuries. The above said facts are crystal clear from the perusal of Ex. P2-spot sketch and Ex. P3-mahazar. It is significant to note that in the complaint given by the driver of the tempo, he has stated in unequivocal terms that, due to the rash and negligent driving of the APSRTC bus by its driver, the accident has occurred and his vehicle has been damaged completely. In this connection, the learned Counsel for the claimant has rightly pointed out that RW 1, driver of the APSRTC bus, has admitted in his cross examination that the police have filed charge sheet against him and he has also in unequivocal terms admitted that the accident has occurred due to his negligence. This admission on the part of RW 1, driver of the offending bus, has been rightly considered and appreciated by the Tribunal and thereby it has come to the conclusion that the accident in question has taken place solely on account of the negligence by the driver of the offending bus belonging to the Corporation. This finding of fact arrived at by the Tribunal is, after appreciation of the oral and documentary evidence and strictly in consonance with the relevant material on file. After re-appreciation of the evidence of RW 1 and the complaint given by the driver of the tempo and also with reference to Ex. P2 and Ex. PS coupled with the admission made by the driver of the offending vehicle, we are of the considered view that the Tribunal is justified in recording a finding of fact and fastening the negligence solely on the part of the driver of the Corporation and therefore, it does not call for interference.

Re: Point No. 2: The occurrence of the accident and the resultant injuries are not in dispute. The claimant was an inpatient for 6 days in the hospital and underwent two surgeries. He has spent considerable amount towards medical expenses and conveyance, nourishing food and attendant charges. The doctor has assessed the disability to his right upper limb to the extent of 30%, 40% to the left lower limb and 25% to the whole body and he has to suffer these discomforts and unhappiness throughout his life and we presume that the claimant might have taken bed rest and follow-up treatment for a period of three months. The claimant was a student who was prosecuting his post graduation course in M.S.(General Surgery) and entitled to a stipend of Rs. 7,000/- to Rs. 12,000/- p.m. This is not disputed by the Corporation, Therefore, we re-assess the income of the claimant at Rs. 8,000/- p.m. and redetermine the compensation towards loss of income during treatment period. Further, it emerges from the records i.e. the evidence of the doctor that the claimant has to be operated again for removal of implants inserted. Therefore, taking into consideration the tentative cost incurred by the claimant towards medical expenses for removal of implants and the other expenses, as stated above, we award just and reasonable compensation under the following heads:

Towards pain and sufferings

Rs. 70,000/-

Towards medical expenses

Rs. 80,000/-

Towards loss of income during laid-up period( Rs. 8,000x3months)

Rs. 24,000/-

Towards loss of amenities, discomforts and unhappiness

Rs. 60,000/-

Towards future medical expenses

Rs. 20,000/-

Total

Rs. 2,54,000/-

Accordingly, the appeal filed by the claimant-MFA 11043/06 is allowed in part and the appeal filed by the Corporation-MFA 5990/07 is dismissed. The impugned judgment and award passed by the Tribunal in MVC No. 1575/05 dated 3.3.2006 stands modified, awarding a compensation of Rs. 2,54,000/- as against Rs. 1,75,000/- awarded by the Tribunal. The enhanced compensation comes to Rs. 79,000/- which carries interest at 6% p.a. from the date of petition till the date of realisation.

The Corporation is directed to deposit the compensation amount with interest at 6% p.a. from the date of petition till the date of realisation, within four weeks from the date of receipt of the copy of this judgment and award, after deducting the amount, if any, deposited by it.

The entire enhanced compensation with interest released shall be released in favour of the claimant, immediately, on deposit by the Corporation Office to draw the award, accordingly.