THE HON’BLE MR JUSTICE V.SURI APPA RAO MACMA NO. 313 OF 2007 DATED: 23.01.2014 Between:
Reyyi Yerrayya And .. Appellant/claimant Savara Kannayya and another .. Respondents THE HON’BLE MR JUSTICE V. SURI APPA RAO
MACMA NO. 313 OF 2007
JUDGMENT:
This appeal is directed against the Award dated 01.11.2006 passed by the Motor Accidents Claims Tribunal -cum-II-Additional District Judge, Srikakulam (for short ‘the Tribunal’), in M.V.O.P.No.160 of 2001, whereby the Tribunal awarded compensation of Rs.61,500/- on account of the injuries sustained by the claimant in a motor vehicle accident
2. For the sake of convenience, the parties herein are referred to as arrayed in the Court below.
3. Feeling aggrieved by the quantum of award passed by the Tribunal, the claimant filed this appeal seeking enhancement of compensation.
4. The brief facts of the case are hereunder:
On 27.08.2000, the claimant boarded RTC bus bearing No.AP 10 Z 2428 belonging to the second respondent Corporation to go to his native village Devunalthada and that by the time the bus reached near Naupada railway gate at about 10.30 PM, the railway gate was closed. The driver of the bus stopped the bus and later he tried to start the bus, but it did not start. Meanwhile, another bus belonging to the second respondent Corporation came from behind. Then the first respondent, driver of RTC bus requested the passengers to push the bus. Accordingly, the passengers got down from the bus and tried to push the bus and even the other vehicle did not start. When they were about to push the bus, the driver of the bus removed the foot from the brake pedal without giving any signal, due to which the vehicle suddenly came back. The claimant sandwiched between two vehicles and sustained multiple injuries. He was immediately shifted to Government Hospital, Tekkali. From there, he was referred to KGH, Visakhapatnam and he underwent treatment for about three months. Thereafter, he was advised to undergo follow up treatment. He visited Visakhapatnam number of times and spent Rs.30,000/- towards medical expenses. As on the date of accident, the injured was working as Kalasi, earning Rs.3,000/- per month. After the accident, he could not attend to his normal duties as Kalasi. Therefore, he filed claim petition before the Tribunal and claimed compensation of Rs.2,00,000/-.
5. The second respondent Corporation filed written statement resisting the claim of the claimant and denying the averments of the petition and contended that on inspection it has come to know that there was no negligence on the part of the driver of the bus. In fact, without informing the driver of the bus, the claimant went behind the vehicle and got crushed between two vehicles and that the accident took place due to the negligence of the claimant. Therefore, the claimant is not entitled for any compensation.
6. Considering the pleadings of both parties, the Tribunal framed the following issues:
1) Whether the accident occurred due to rash and negligent driving of the bus by the first respondent?
2) Whether the claimantis entitled to recover the compensation and, if so, what amount of compensation and from which of the respondents?
3) To what relief.
7. The claimant was examined as PW.1 and he also examined Dr R.Ramadas as PW.2 and relied on Exs.A.1 to A8. No oral or documentary evidence is adduced on behalf of the respondent Corporation.
8. Considering the oral and documentary evidence available on record the Tribunal awarded compensation of Rs.61,500/-.
9. Learned counsel for the claimant submitted that he received injuries on the vital parts of the body and had taken treatment for about 10 months and underwent operation, due to which he became permanently disabled and lost his earning capacity. The Tribunal has not considered the seriousness of the injuries sustained by the claimant and awarded compensation which is on lower side when compared to the injuries sustained by him.
10. Per contra, learned counsel for the second respondent Corporation submitted that the claimant himself contributed for the accident and the medical evidence shows that the claimant can attend to the work as usual to his normal duties and he has not sustained any permanent disability. Therefore, there are no grounds for enhancement of compensation awarded by the Tribunal.
11. The second respondent Corporation has taken specific plea in the written statement that there was no negligence on the part of the driver of the bus and the same occurred due to the negligence of the claimant himself. The evidence on record particularly Ex.A.1-first information report and Ex.A.4-charge sheet filed by the police after investigation shows that the accident took place while the claimant was pushing the bus. The contents of Ex.A.1-FIR and Ex.A.4-charge sheet clearly indicates that the claimant was traveling in the bus along with other passengers to go to Devunalthada about 10.30 PM and when the bus reached near railway gate, the gate was closed. After the train passed, the gate was lifted and when the driver of the bus tried to start the bus, it did not start. Therefore, the driver of the bus asked the claimant and other passengers to push the bus and accordingly when they were pushing, the driver of the bus removed the foot from the brake negligently due to which the crime vehicle went back, resulting in the claimant and other passengers getting crushed in between two busses, as another bus also came and stopped behind the bus due to closure of the gate. Though the second respondent contended that there was no negligence on the part of the driver of the bus, the contents of charge sheet clearly show that the accident took place due to the negligent driving of the driver of the bus. The second respondent Corporation did not choose to examine the driver or conductor of the bus to prove that there was no negligence on the part of the driver of the bus and that the claimant unfortunately met with an accident when he was trying to push the bus, when it did not start, resulting in the claimant and other passengers getting crushed in between two busses and the claimant received serious injuries. The Tribunal has, therefore, rightly found that the accident took place due to the negligence of the driver of the bus and not due to the negligence of the claimant.
12. So far as the quantum of compensation is concerned, the Tribunal awarded Rs.30,000/- towards loss of income i.e., @ Rs.3,000/- per month for 10 months; Rs.20,000/- towards pain and suffering; Rs.1,500/- towards medical expenses and Rs.10,000/- towards attendant charges. As per Ex.A.2-wound certificate and Ex.A.5-medical bills produced by the claimant, he sustained fracture of pelvis and rupture of blaurinary (extra peritoneal) and rupture of the urethra and bladder also. Initially, he took treatment in Government Hospital, Tekkali and thereafter, he was referred to KGH, Visakhapatnam.
13. PW.2- Dr Ramdas, Professor of Urology stated in his evidence that on 28.08.2000 the claimantwas admitted in KGH Hospital, on reference from Government Hospital, Tekkali. He sustained rupture of blaurinary (extra peritoneal) and rupture of urethra and other orthopedic injuries. He was operated on 30.08.2000 for rupture of bladder. He was referred to orthopedic surgeon for the treatment of orthopedic injuries. Therefore, he was transferred to orthopedic ward on 09.09.2000. Because of injury to the bladder and urethra, the normal urinary function will be disturbed. Therefore, he had undergone emergency operation to direct urinary from urinary bladder and repair of bladder. He further stated that the claimant developed stricture urethra and he had to undergo corrective operation on 28.03.2001 and was finally discharged on 30.04.2001. Again, the claimant was admitted in the hospital on 25.05.2001 and was operated on 30.05.2001 and discharged from hospital on 04.06.2001 and again he was admitted in Hospital on 26.06.2001 and discharged on 30.06.2001.
14. According to PW.2, the claimant underwent major operation on urinary system and he cannot attend to normal duties during the period of treatment. The case sheet and discharge summary maintained by the Urology Department of KGH were produced. He further stated that the claimant requires constant attendant of minimum one person during the period of operation after 30.06.2001. It is, therefore, clear from the evidence of PW.2 that from the date of accident i.e., 28.08.2000 to 30.06.2001 he has taken treatment in KGH for about 10 months. Though the treatment in Government Hospital is free, he has to spend some more amounts for food and extra-nourishment and for attendant charges. As per the evidence of PW.2, one attendant has to attend for the entire period of treatment. The Tribunal has not awarded any compensation towards disability. As seen from the Award, the claimant was admittedly working as Kalasi. Owing to the negligence of the driver of the bus involved in the accident, he suffered lot and underwent treatment for about 10 months even after the discharge from the hospital. He cannot attend to the normal work for some period due to the injuries to the vital parts on account of the major operation to urinary system. Therefore, I fee that considering the nature of injuries, the period of treatment and other factors, the disability sustained by the claimant is a permanent disability at the age of 32 years, though PW.2 has not specified the percentage of disability, the Court can assess the disability based on the period of treatment and the nature of injuries sustained by the claimant. Therefore, I feel it is just and reasonable to assess the disability at 20%. The Tribunal has not awarded any compensation towards the permanent disability. As per the evidence, the claimant was earning Rs.3,000/- per month as on the date of accident. Therefore, the loss of earnings @ 20% comes to Rs.7,200/- (Rs.3,000/- x 12 = Rs.36,000/- x 20/100). If Rs.7,200/- is multiplied with 15, it comes to Rs.1,08,000/-.
The loss of income during the period of treatment is Rs.30,000/-.
The attendant charges for 10 months is Rs.25,000/- as against Rs.10,000/-; towards pain and suffering is Rs.50,000/- as against Rs.25,000/-. Though the claimant has produced Ex.A.5-medical bills, the Tribunal has granted only Rs.1,500/- without any basis. The evidence of PW.2 shows that after discharge he was advised to purchase medicines from outside and attend the hospital for follow up treatment. Therefore, it is just and reasonable to award compensation of Rs.10,000/- towards medical expenses and another sum of Rs.5,000/- towards future medical expenses. The total compensation is Rs.2,28,000/- (i.e., Rs.1,08,000/- + Rs.30,000/- + 25,000/- + Rs.50,000/- + Rs.10,000/- + Rs.5,000/-) as against Rs.61,500/- granted by the Tribunal. Therefore, the enhancement comes to Rs.1,66,500/- (Rs.2,28,000/- minus Rs.61,500/-). The second respondent Corporation is directed to pay the enhanced compensation within three months with interest @ 6% per annum from the date of petition till the date of realization. The petitioner/claimant is directed to pay difference of Court fee.
15. With the above observation, the appeal is allowed. There shall be no order as to costs.
Date: 23.01.2014 V.SURI APPA RAO, J kvrm THE HON’BLE MR JUSTICE V. SURI APPA RAO
MACMA NO. 313 OF 2007
DATE: 23.01.2014