* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.1477 of 2009
%25.04.2014
Between:
APSRTC, rep. by its Managing Director, Musheerabad, Hyderabad. Appellant AND Kadali Venkataratnam and another. ….
Respondents ! Counsel for Appellant : Sri C. Prakash Reddy ^ Counsel for Respondent No.1 : Sri Josyula Bhaskara Rao < Gist:
> Head Note:
? Cases referred:
1) 2003 (4) ALD 183 (DB)
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A.No.1477 of 2009
JUDGMENT:
Aggrieved by the Award dated 25.06.2008 in M.V.O.P.No.235 of 2006 passed by the Chairman, MACT-cum-II Additional District Judge, East Godavari at Amalapuram (for short “the Tribunal”), the APSRTC preferred the instant appeal.
2) The factual matrix of the case is thus:
a) The claimant is a resident of Sriramapuram, Amalapuram, East Godavari District. His case is that on 04.02.2006 at about 7:30am, when he was crossing the road after parking his lorry near Old Petrol Bunk, Undi village and Mandal, West Godavari District, one RTC bus bearing No.AP 10 Z 1312 which was proceeding from Gudiwada to Bheemavaram, being driven by its driver at high speed and in a rash and negligent manner dashed the claimant. Due to which, the claimant fell on the road and sustained grievous heady injury besides multiple injuries all over the body. Immediately, the claimant was shifted to Government Hospital, Bheemavaram and from there to Bheemavaram Hospitals Pvt Ltd and was treated there for 30 days. It is pleaded that a major surgical operation was done to his head and he spent Rs.50,000/- towards medical expenses and as such, he became disabled and unable to do his driving profession. It is further pleaded that he used to earn Rs.4,000/- p.m as salary and Rs.50/- towards as daily batta. It is averred that the accident was occurred due to the rash and negligent driving by the 1st respondent. On these pleas, the claimant filed MVOP No.235 of 2006 against respondents 1 and 2, who are the driver and owner of the offending bus and claimed Rs.4,00,000/- as compensation under different heads mentioned in OP.
b) Respondent No.1 remained ex parte.
c) Respondent No.2 filed written statement and opposed the claim by denying all the material averments made in the petition and urged to put the claimant in strict proof of the same.
R.2 denied the involvement of the bus in the accident and demanded to put the petitioner in strict proof. R.2 denied the age, income and avocation of the claimant. Finally, R.2 contended that the claim is highly excessive and untenable and thus prayed for dismissal of the O.P.
d) During trial PWs.1 and 2 were examined and Exs.A1 to A6 and Exs.X.1 to X.4 were marked on behalf of claimant. No oral or documentary evidence was adduced on behalf of respondents.
e) A perusal of the award would show that having regard to the evidence of PW1—claimant-cum-victim of the accident coupled with Ex.A1—F.I.R and Ex.A.4—charge sheet, the Tribunal held that the accident was occurred due to the rash and negligent driving of the offending bus by the 1st respondent.
f) Issue No.2 which relates to quantum of compensation is concerned, the Tribunal awarded compensation of Rs.2,80,000/- with proportionate costs and interest at 9% p.a from the date of O.P till the date of realization under different heads as follows:
Pain and suffering Rs. 15,000-00 Medical expenses Rs. 66,267-00 Loss of earnings and discomfort due to disability Rs.1,98,000-00 Total Rs.2,79,267-00 Rounded of to Rs.2,80,000-00 Hence, the appeal by APSRTC.
3) Heard arguments of Sri C. Prakash Reddy, learned counsel for appellant/APSRTC and Sri Josyula Bhaskara Rao, learned counsel for respondent No.1/claimant. Notice sent to the R.2 was returned unserved.
4 a) Criticising the award, learned counsel for appellant firstly argued that the Tribunal erred in holding that the bus driver was responsible for the accident. It ought to have seen that the claimant tried to cross the road unmindful of the vehicles passing on the road and therefore, he himself was responsible for the accident. On that ground, the Tribunal ought to have dismissed the claim.
b) Secondly, learned counsel argued that the Tribunal erred in granting Rs.1,98,000/- towards loss of earning power due to disability. In this case, the claimant suffered injury to his head and in view of it, a Neuro Surgeon would be competent to speak about the disability, if any. However, though PW.2 was a Doctor but he was not a Neuro Surgeon and hence, he is not competent to depose about the alleged disability of the claimant. Therefore, the Tribunal ought to have totally rejected the evidence of PW.2 and it ought not to have granted any compensation for the alleged loss of earning power. The claimant was well recovered and he coherently gave evidence in the Court and therefore, it is false to say that he is now unable to attend the driving work.
c) Thirdly, learned counsel argued that the interest rate of 9% p.a granted by the Tribunal was high and it needs to be scaled down.
He thus prayed to allow the appeal.
5 a) Per contra, learned counsel for 1st respondent/claimant while supporting the award firstly argued that the accident was occurred purely due to the rash and negligent driving by the bus driver as he drove the vehicle at high speed and without blowing horn. Apart from the evidence of claimant, the charge-sheet would also show that bus driver was responsible for the accident. Therefore, the Tribunal rightly held that the bus driver was at fault.
b) Secondly, learned counsel argued that though PW.2 was not a Neuro Surgeon, however he was part of the treatment extended to the claimant and he was in charge of the I.C.U and so he is very much competent to speak about the disability of the claimant. Besides, he is a qualified doctor to speak about the percentage of disability. Learned counsel relied upon the decision of this Court reported in Charan Singh vs. G. Vittal
[1]
Reddy and another and argued that in that case it was held that to speak about the disability of an injured person suffice that Doctor is a qualified Doctor and he is not necessarily to be the Doctor who treated him. Learned counsel argued that in this case, PW.2 stands on a much better footing because he is not only qualified Doctor but also he was part of the treatment. So merely because he was not a Neuro Surgeon, his evidence need not be brushed aside. Learned counsel argued that the Tribunal rightly fixed compensation of Rs.1,98,000/- for the loss of earning power and there is no need to revise the same.
He thus prayed for dismissal of the appeal.
6) In the light of above divergent arguments, now the point for determination in this appeal is:
“Whether the award passed by the Tribunal is factually and legally sustainable?”
7) POINT: The accident, involvement of the RTC bus and injuries sustained by the claimant are admitted facts. Hence in this appeal, the core points for determination in this appeal are whether the bus driver or the claimant himself was responsible for the accident and whether compensation awarded by the Tribunal is just and reasonable or excessive.
8) The first argument of the appellant is that the claimant himself was at fault as he tried to cross the road unmindful of the vehicles passing on the road. In this regard, the evidence of PW.1 is that on 04.02.2006 he parked his lorry near old Petrol Bunk, Undi Village with a view to pass urinals and was crossing the road and at that time the offending bus which was going from Gudiwada towards Bheemavaram came at high speed being driven by its driver in a rash and negligent manner and dashed him and thus, caused the accident. PW.1 asserted that the 1st respondent was solely responsible for the accident. This witness was cross-examined at length, he deposed that he stopped his vehicle by the side of the road and went for urination to a distance of 20 years and after urination he just turned to return and in the meanwhile, the bus came and hit him. He denied the suggestion that he failed to notice the bus and was negligently crossing the road and thereby the accident was occurred. While denying the said suggestion, PW.1 added that bus driver has not blown the horn. He emphatically denied the suggestion that the accident was occurred due to his own negligence. From the evidence of PW.1 what can be inferred is that after urination was over, he was about to come on to the road to cross the road and in the meanwhile, the bus came without blowing horn and dashed him. It does not appear that the accident was occurred when he was on the middle of the road but rather he was on one side of the road. Therefore, it appears that the accident was occurred due to the fault of bus driver as he drove the vehicle in a rash and negligent manner and did not blow the horn. Apart from the oral evidence of PW.1, Ex.A.4—charge sheet also speaks of the fault of the bus driver. As against the aforesaid oral and documentary evidence, neither 1st respondent in the O.P nor the 2nd respondent in the OP/appellant adduce any contra evidence to prove the innocence of the bus driver. The 1st respondent who was the driver of the bus remained ex parte and 2nd respondent did not try to examine R.1 or the passengers in the bus to prove his innocence. In view of all these, it can be safely held that the bus driver was responsible for the accident, consequently the first argument raised by the appellant cannot be accepted.
9) The second argument of the appellant is that the Tribunal erred in granting Rs.1,98,000/- towards loss of earning power due to disability. Its argument is that PW.2 who certified the disability of the claimant as 30% was not a Neuro Surgeon to speak about the nature of brain injury, its effects and consequent disability. However, the Tribunal erred in accepting his evidence. In this regard, I perused the evidence of PW.2— Dr.A.Hanumantha Rao, who is attached to Bheemavaram Hospitals Limited. He deposed that the claimant who sustained head injury was brought in unconscious stage to their hospital on 04.02.2006, C.T scan was done showed right Fronto tempero parietal subdural haemorrhage. He was kept on ventilators and was operated with craniotomy (skull open surgery) on the same day and he was kept in Intensive Care for 10 days with intermittent ventilatory support. PW.2 further deposed that one Dr. Bijoy Kumar, Neuro Surgeon of their Hospital performed the operation and the said Doctor left the Hospital subsequently. PW.2 further stated that he followed the treatment and his handwriting was also available in the case sheet as he was the ICU in-charge. Regarding the position of PW.1, he stated that patient suffered pain due to injury and there will be depression at surgical craniotomy site and as per his knowledge, PW.1 suffered 30% disability. In the cross- examination he admitted that he is not a Neuro Surgeon. However he emphatically stated that he personally treated the patient though he has not operated the patient. He denied the suggestion that he is not a competent person to assess the disability of the claimant. This is the evidence of PW.2 with regard to the nature of treatment and the disability suffered by the claimant. It appears, basing on the facts that the claimant suffered head injury and he was operated by one Neuro Surgeon and PW.2 is not a Neuro Surgeon, it is argued that he is not competent to speak about the disability of the claimant. I am unable to accept the argument of the appellant. It may be true that PW.2 is not a Neuro Surgeon and he had not operated the claimant. However it must not be forgotten that he was part of the treatment provided to the claimant. As such, it will not be difficult for him to know the condition of the claimant. When the claimant was put in the ICU and provided intermittent ventilation, this Doctor (PW.2) acted as in-charge of the ICU. Taking all these facts into consideration, it can be said that PW.2 is competent enough to speak about the disability of the claimant. In the cited decision (Charan Singh’s case (Supra)), the Division Bench of this Court with reference to Workmens Compensation Act held that a qualified medical practitioner can assess the disability though not he happened to be the treatment doctor. In this case, as rightly pointed out by the learned counsel for respondent No.1/claimant, PW.2 was also part of treatment, besides being a qualified doctor. The Tribunal too opined that the 30% disability though spoken by PW.2 does not look excessive. However while taking the functional disability, the Tribunal did not totally accept the same and took a different yardstick on the ground that the petitioner with his present condition can attend to labour work though not able to do driving work. The Tribunal accordingly computed the compensation and granted Rs.1,98,000/-. When totality of the facts and circumstances are taken into consideration, said amount does not appear to be high side.
10) Sofaras rate of interest is concerned, the argument of the appellant appears to be correct one. Accordingly, the rate of interest is scaled down from 9% per annum to 7.5% per annum.
1 1 ) In the result, this appeal is partly allowed and while maintaining the quantum of compensation as awarded by the Tribunal, the rate of interest is reduced from 9% per annum to 7.5% per annum. No order as to costs in the appeal.
As a sequel, Miscellaneous Applications pending if any shall stand closed.
U. DURGA PRASAD RAO, J Date: 25.04.2014
Note:
L.R Copy to be marked: YES / NO scs
[1] 2003 (4) ALD 183 (DB)