Telangana State Road Transport Corporation vs Pillala Bhoomesh

B.R.Madhusudhan Rao, J

This appeal is filed under Section 173 of the Motor Vehicles Act (for short ‘the MV Act’) by Telangana State Road Transport Corporation (hereinafter referred to as TSRTC) challenging the Award dated 30.03.2021 passed by the Motor Accidents Claims Tribunal – cum – Principal District and Sessions Judge at Nizamabad in MVOP.No.38 of 2015.

Respondent/claimant has filed M.V.O.P. claiming compensation of Rs.3,00,000/- stating that he sustained permanent disability on account of fracture and injuries received by him in a motor vehicle accident which took place on 18.04.2014 at about 1.15 p.m., in the outskirts of Ramalachakkapet at a distance of 8 kms., towards South from PS Metpalli, Karimnagar District with Bus bearing No.AP-11-Z-753, for which the appellant No.1/respondent No.1 is the Managing Director and appellant No.2/respondent No.2 is the Depot Manager of APSRTC, Metpalli Depot.

Respondent/claimant was travelling as a pillion rider on 18.04.2014 on a motor-cycle bearing No.AP 25Q 7424. In the said accident, respondent/claimant sustained compound fracture of both bones of right leg M/3, fracture of right leg, injuries on head, crush injuries to the face, fracture of skull, fracture of ribs. Immediately after the accident, respondent/claimant was shifted to Government Area Hospital, Metpalli, where he was treated as inpatient and for better treatment he was shifted to Sairam Hospital, Jagtial and underwent treatment as inpatient from 18.04.2014 to 25.04.2014. On 18.04.2014 respondent/claimant underwent surgery to his right leg and steel rods were implanted. At the time of accident, respondent/claimant was aged about 29 years and was hale and healthy, doing agriculture, vegetable and milk business, earning Rs.20,000/- per month. On the complaint, police Metpalli has registered a case in Crime No.105 of 2014 under Sections 304 (A) and 337 of Indian Penal Code (for short ‘IPC’) and later on charge sheet is filed.

Appellants/respondent Nos.1 and 2 have filed their written statement stating that there is no negligence on the part of the driver of the Bus and the respondent/claimant has sustained injuries due to the negligent driving of the driver of the motor-cycle bearing No.AP 25Q 7424 and the compensation claimed by the respondent/claimant is excessive.

Respondent/claimant has amended his O.P. and prayed for a compensation of Rs.6,00,000/- as per order in I.A.No.502 of 2016, dated 03.11.2016.

Basing on the pleadings of the parties, the Tribunal has framed the following issues:

Whether the petitioner received injury in the motor accident with Bus bearing No.AP 11 Z 753 due to rash and negligent driving by its driver?

Whether the petitioner is entitled for compensation. If so, to what extent and from whom?

To what relief?

The Tribunal, basing on the oral and documentary evidence placed on record, has awarded a sum of Rs.2,25,000/- to the respondent/claimant along with the interest at the rate of 7.5% per annum from the date of filing the petition i.e., 31.12.2014 till the date of realization.

Learned counsel for the appellants submits that the Tribunal has committed irregularities in holding that the accident has occurred due to rash and negligent driving of the driver of the RTC bus bearing No.AP 11 Z 753 and the Tribunal ought to have appreciated the fact that there is negligence on the part of the driver of the motor-cycle when injured was travelling as a pillion rider. The respondent/claimant did not make the owner and insurer of motor-cycle bearing No. AP 25Q 7424 as party to the claim petition and the claimant has to prove the negligence on the part of the driver of the crime vehicle. In absence there of, the Tribunal ought to have drawn an adverse inference.

Per contra, learned counsel for the respondent submits that the Tribunal has not awarded Just compensation to the respondent/claimant.

I have considered the aforesaid submissions and perused the record.

The following points arise for consideration:

1) Whether the claimant has proved the negligence on the part of the driver of the crime vehicle?

2) Whether the owner and Insurer of the motor cycle bearing No.AP 25 Q 7424 are necessary parties to the claim petition?

3) Whether the compensation amount awarded to the claimant is just a fair compensation?

12.1. So far as the first point is concerned, father of the respondent/claimant has lodged a complaint at PS Metpalli on 18.04.2014 that his son has sustained injuries due to the rash and negligence driving of the driver of the APSRTC Bus. Basing on the said complaint, PS Metpalli has registered Ex.P1/FIR against Mondi Praveen Kumar driver of APSRTC Bus bearing No.AP 11 Z 753. Ex.A2 is the charge sheet filed by the police under Sections 337 and 338 of IPC holding that the investigation reveal that on 18.04.2014 at about 13.15 hours, the accused (Driver) drove the APSRTC Bus with high speed in negligent manner and dashed against Hero Honda Splendor plus motor-cycle bearing No.AP 25Q 7424 at the out skirts of Ramalachakkapet village. Ex.A3 is the crime detail form dated 18.04.2014, which goes to show that the accident occurred due to rash and negligent driving of the driver of the crime vehicle.

12.2. Appellants have examined the conductor of the Bus as RW1, wherein he admitted in his cross-examination that complaint is lodged against the driver of the Bus, FIR is registered and and charge sheet is also filed agianst him (driver of the crime vehicle). The Tribunal basing on the evidence of PW1, RW1 and Exs.A1 to A3 arrived at a conclusion that it is the driver of the APSRTC Bus who drove the same in a rash and negligent manner and caused the accident.

12.3. Claimant (PW1) has proved the negligence on the part of the driver of the crime vehilce, hence point is answered accordingly.

13.1 So far as Second point is concerned: It is one of the grounds in the appeal that the claimant did not make the owner and insurer of the motor cycle bearing No.AP 25 Q 7424 as parties to the claim petition. On careful reading of the written statement filed by the appellants in the MVOP, no such defence is taken by them. Even otherwise the Apex Court in:

Khenyei v. New India Assurance Company Limited, 2015 (4) ALD 98 (SC) = (2015) 9 SCC 273, held that it is open for the claimant to claim compensation either from the owner/driver and insurer of both the vehicles or any one of them. The relevant Paras 11 to 14 read as under:

“ 11. A Full Bench in Karnataka SRTC v. Arun, AIR 2004 Kar. 149, while answering the aforesaid questions has observed that it was a case of composite negligence and the liability of tortfeasors was joint and several. Hence, even if there is non-impleadment of one of the tortfeasors, the claimant was entitled to full compensation quantified by the Tribunal. The Full Bench referred to the decision of a Division Bench of the Gujarat High Court in Hiraben Bhaga v. Gujarat SRTC, 1981 SCC OnLine Guj. 68, in which it has been laid down that it is entirely the choice of the claimant whether to implead both the joint tortfeasors or either of them. On failure of the claimant to implead one of the joint tortfeasors, contributory liability cannot be fastened upon the claimant to the extent of the negligence of non-impleaded joint tortfeasors. It is for the joint tortfeasors made liable to pay compensation to take proceedings to settle the equities as against other joint tortfeasors who had not been impleaded. It is open to the impleaded joint tortfeasor to sue the other wrongdoer after the decree or award is given to realise to the extent of others' liability. It has been laid down that the law in Ganesh V. Syed Munned Ahamed, 1998 SCC OnLine Kar. 603, has been rightly laid down and it is not necessary to implead all joint tortfeasors and due to failure of impleadment of all joint tortfeasors, compensation cannot be reduced to the extent of negligence of non-impleaded tortfeasors. Non-impleadment of one of the joint tortfeasors is not a defence to reduce the compensation payable to the claimant. In our opinion, the law appears to have been correctly stated in Karnataka SRTC v. Arun (supra).

A Full Bench of Madhya Pradesh High Court in Smt. Sushila Bhadoriya & others v. M.P. State Road Transport Corpn. And another, 2005 (1) MPLJ 372 has also laid down that in case of composite negligence, the liability is joint and several and it is open to implead the driver, owner and the insurer one of the vehicles to recover the whole amount from one of the joint tortfeasors. As to apportionment also, it has been observed that both the vehicles will be jointly and severally liable to pay the compensation. Once the negligence and compensation is determined, it is not permissible to apportion the compensation between the two as it is difficult to determine the apportionment in the absence of the drivers of both the vehicles appearing in the witness box. Therefore, there cannot be apportionment of the claim between the joint tort-feasors.

The relevant portion of decision of Full Bench is extracted hereunder:

“25. When injury is caused as a result of negligence of two joint tort- feasors, claimant is not required to lay his finger on the exact person regarding his proportion of liability. In the absence of any evidence enabling the Court to distinguish the act of each joint tort-feasor, liability can be fastened on both the tort-feasors jointly and in case only one ofthe joint tort-feasors is impleaded as party, then entire liability can be fastened upon one of the joint tort-feasors. If both the joint tort-feasors are before the Court and there is sufficient evidence regarding the act of each tort-feasors and it is possible for the Court to apportion the claim considering the exact nature of negligence by both the joint tort-feasors, it may apportion the claim. However, it is not necessary to apportion the claim when it is not possible to determine the ratio of negligence of joint tort-feasors. In such cases, joint tort-feasors will be jointly and severally liable to pay the compensation.

On the same principle, in the case of joint tort-feasors where the liability is joint and several, it is the choice of the claimant to claim damages from the owner and driver and insurer of both the vehicles or any one of them. If claim is made against one of them, entire amount of compensation on account of injury or death can be imposed against the owner, driver and insurer of that vehicle as their liability is joint and several and the claimant can recover the amount from any one of them. There cannot be apportionment of claim of each tort-feasors in the absence of proper and cogent evidence on record and it is not necessary to apportion the claim.

To sum up, we hold as under:-

(i) Owner, driver and insurer of one of the vehicles can be sued and it is not necessary to sue owner, driver and insurer of both the vehicles. The claimant may implead the owner, driver and insurer of both the vehicles or anyone of them.

(ii) There can not be apportionment of the liability of joint tort-feasors. In case both the joint tort-feasors are impleaded as party and if there is sufficient material on record, then the question of apportionment can be considered by the claims Tribunal. However, on general principles of Jaw, there is no necessity to apportion the inter se liability of joint tort-feasors.

Reference is answered accordingly. Appeal be placed before appropriate Bench for hearing.”

In our opinion, the law laid down by the Madhya Pradesh High Court in Sushila Bhadoriya v. M.P. SRTC, 2004 SCC OnLine MP 360, is also in tune with the decisions of the High Court of Karnataka in, Ganesh v. Syed Munned Ahamed, 1998 SCC OnLine Kar. 603 and Karnataka SRTC V. Arun, 2003 SCC OnLine Kar. 715. However, at the same time, suffice it to clarify that even if all the joint tortfeasors are impleaded and both the drivers have entered the witness box and the Tribunal or the Court is able to determine the extent of negligence of each driver that is for the purpose of inter se liability between the joint tortfeasors but their liability would remain joint and several so as to satisfy the plaintiff/claimant.”

13.2. I do not find force in the submissions of the learned counsel for the appellants that owner and insurer of Motor Cycle are necessary parties to the O.P., it is the prerogarative of the respondent/claimant that it is open for the claimant to claim compensation either from the owner/driver and insurer of both the vehicles or any one of them, such submission is rejected.

14.1. So far as the third point is concerned: Respondent/claimant stated in the O.P. that his monthly income is Rs.20,000/- per month on agriculture, vegetable and milk business but no document is filed to prove the same and the Tribunal has arrived that the respondent/claimant is earning Rs.6,000/- per month assuming that he worked as a labourer and was hospitalized for a period of two months. Rs.12,000/- is awarded towards temporary loss of employment. Ex.A4 is the medical report of the respondent/claimant dated 18.04.2014 issued by Government City Hospital, Metpalli, Karimnagar, by showing the injuries sustained by the claimant. It is the evidence of respondent/claimant that for better treatment he was shifted to Private Hospital. Ex.A5 is the discharge summary, which goes to show that the date of admission is 18.04.2014, surgery is also done on the same day, he was discharged on 25.04.2014. The operational procedure is for head injury. Ex.A6 is the discharge summary, date of admission is 28.04.2014 and date of discharge is 01.05.2014, which goes to show that the claimant went for a follow up with fever and right leg pain. Ex.A7 is the Essentiality Certificate dated 16.05.2014 for an amount of Rs.1,87,110/- which goes to show that the Hospital has charged the claimant for nursing charges, maintenance charges, surgery charges, DMO charges, Doctor consultation, ICU charges, Pharmacy and lab investigations.

14.2. It is the submission of the appellants counsel that Ex.A7 is not proved by the cogent evidence by examining independent witnesses. Ex.A7 are the bills from 18.04.2014 to 25.04.2014, for an amount of Rs.1,87,110/- issued by Sairam Multi Specialty Hospital pertaining to the claimant, which are in consonance with Ex.A5 (Discharge summary), Ex.A8(Prescriptions and Lab report (24 Nos) and Ex.P9 (X- Rays 11 Nos.), the evidence of the claimant is sufficient to prove the same. The appellant’s counsel submits that the Tribunal erred in awarding Rs.20,000/- towards pain and suffering and Rs.5,000/-towards transportation without any evidence. As per Ex.A4 claimant has received head injury with multiple fracture of bones and Tribunal has rightly awarded an amount of Rs.20,000/- towards pain and suffering and Rs.5,000/- towards extra nourishment taking into consideration all the aspects and awarded Just compensation. Hence, point is answered accordingly.

In view of the reasons above, I am not inclined to interfere with the award passed by the Tribunal, there are no merits in the appeal deserves no consideration and the same is liable to be dismissed and is accordingly dismissed without costs.

In the result, MACMA.No.12 of 2022 is dismissed without costs.

As a sequel, Miscellaneous application/s, pending if any, shall stand closed.