THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A. C.M.A. Nos.6 and 33 of 2006 Date : 06-08-2010 M.A. C.M.A. No.6 of 2006 Between : The General Manager, APSRTC, Mushirabad, Hyderabad and another .. Appellants and A.Linga Swamy Goud .. Respondent And M.A. C.M.A. No. 33 of 2006 Between : A.Linga Swamy Goud .. Appellant and The General Manager, APSRTC, Musheerabad, Hyderabad and another .. Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A. C.M.A. Nos.6 and 33 of 2006 COMMON JUDGMENT: M.A. C.M.A. Nos.6 and 33 of 2006 arise from the award in M.V.O.P. No.1678 of 2003, dated 01-09-2005 on the file of the Motor Accidents Claims Tribunal-cum-XXI Additional Chief Judge-cum-VII Additional M.S.J., Nampally, Hyderabad. M.A. C.M.A. No.6 of 2006 is filed by the General Manager and the Depot Manager of the APSRTC. M.A. C.M.A. No.33 of 2006 is filed by A.Linga Swamy Goud (claimant). The parties for the sake of convenience will be referred to as the claimant and APSRTC. The APSRTC has challenged its liability whereas the claimant has sought for enhancement of compensation. This is a case of injuries. The case of the claimant is that on 25-05-2003 he along with his friend one, Md.Jahangir was proceeding on scooter bearing registration No. AP-13/C-1190 from Sanghi towards Hyderabad. When they reached Koheda cross roads, the bus of the APSRTC bearing registration No. AP-11-Z-1039, driven in a rash and negligent manner, dashed the scooter, due to which, the complainant sustained grievous injuries. He was treated in Kamineni Hospital and Sarojini Devi Eye Hospital as well. In addition to fractures, he also lost his left eye. He, therefore, filed the O.P. and sought for a compensation of Rs.4,00,000/-. The APSRTC contested the claim and denied the allegations inter alia contending that there was no rash and negligent driving on the part of its driver and that the accident occurred due to the rash and negligent driving of the scooterist. On the pleadings, the Tribunal formulated the issues; Whether the accident took place due to the rash and negligent driving of the RTC bus by its driver; and whether the claimant was entitled for the compensation and if so, to what amount. On consideration of oral evidence of P.W.1 (claimant), P.W.2 (Doctor) and the documents marked in Exs.A1 to A15 on behalf of the claimant and the oral evidence of R.W.1 (driver of the offending vehicle), the Tribunal held that the accident occurred due to the rash and negligent driving of the RTC bus by its driver. The Tribunal also held that the claimant lost his left eye site and estimated the disability at 30%. Treating the claimant as a non-earning member and taking the notional income at Rs.15,000/- per annum, age of the claimant at 19 years, awarded Rs.72,000/- for permanent disability. In addition, the Tribunal awarded Rs.60,000/- towards pain and suffering, Rs.65,000/- towards medical expenses, Rs.1,000/- towards transport and Rs.2,000/- towards extra-nourishment, in all awarded Rs.2,00,000/-. Therefore, these appeals. The learned counsel for the APSRTC would contend that the accident cannot be attributed to the driver of its bus and that the claimant did not establish rash and negligence. It is further contended that the amount claimed is excessive. On the other hand, the learned counsel for the claimant refuted the said contentions and would submit that the amount awarded is not proportionate to the disability suffered by the claimant. In order to establish rash and negligence, the claimant examined himself as P.W.1. It may be noted that the claimant was a pillion rider on the motorcycle and he was a witness to the incident. In his evidence, he categorically stated that the offending vehicle, which came from Ibrahimpatnam side, hit the scooter and caused the accident. The driver was rash and negligent and caused the accident. Although the RTC examined its driver as R.W.1, he, in his evidence, stated that while he was taking left turn, observed a scooter coming in high speed and that he stopped the bus at the turning itself. The driver of the scooter, unable to control, dashed the bus. It is in his evidence that he could see the scooter from a 30 feet distance and that he did not even give complaint to the police. In fact, he also admitted that charge-sheet was filed against him. On the other hand, Ex.A2 (certified copy of the charge-sheet) which was filed after investigation, would reveal that the accident took place due to his rash and negligence only. In addition to the charge-sheet (Ex.A2) and the absence of complaint by the R.W.1 against the scooterist and the failure of the RTC to examine anyone of the passengers, would amply establish that the accident occurred due to the rash and negligent driving of the driver of the APSRTC. In my opinion, the Tribunal appreciated the evidence on record in a proper perspective and reached the correct conclusion. As regards the quantum of compensation, while the claimant states that the compensation awarded is not proportionate to the injuries suffered, the APSRTC contends that the compensation was rightly assessed and the same dos not require any enhancement. It is true that the Tribunal elaborately considered the aspect and awarded compensation on various heads as noted above. In my honest opinion the amounts awarded towards pain and suffering, transport and extra- nourishment are just and reasonable. However, it may be noted that while awarding compensation for permanent disability, the Tribunal estimated the disability at 30% based on Ex.A11-certificate issued by the Sarojini Devi Eye Hospital. It is the case of the claimant that it is supported by Ex.A4-discharge summary of Kamineni Hospital, where the claimant was treated for fractures, which would reveal that he suffered fracture of left femur, left tibia, left fibula, head injury, multiple fracture on the face, lacerations over the face and also left eye optic nerve injury. It is evident from Ex.A4 that the complainant suffered not only injury to the left eye but also to his leg and other parts of the body. P.W.2 (Doctor C.Kamaraj) was examined to establish the injuries suffered. He stated in his evidence that the claimant lost his eye sight completely and he conducted a major surgery for tibia and femur. Incidentally, he examined the claimant in the Court premises and found him with complete loss of vision of left eye and also restriction of left knee. There is a shortage of left leg by 1 cm. He also stated that because of the fracture of bones of face, the claimant has difficulty in chewing. He found that there were implants still in the body which require removal by performing two more operations costing Rs.16,000/- each. He has confirmed Ex.A3 (medico legal record), Ex.A4 (discharge summary), Ex.A5 (bills issued by Kamineni Hospital), Exs.A13 and 14 (X-ray and Ct. scan films). In his evidence while referring to the loss of eye sight and the other injuries suffered, he stated that the percentage of disability is 60%. As noted above, the Tribunal estimated the disability only at 30% based on Ex.A11. Ex.A11 is the disability certificate issued by the SD Hospital, which relate only to the treatment and injury to the left eye. The Tribunal apparently did not take into consideration the other physical disability caused due to the fractures as certified by P.W.2. Therefore, in my view, the disability should be estimated at 60%. Although it is claimed that the claimant was a plumber, no evidence was adduced. The Tribunal, therefore, rightly treated him as non-earning member and took Rs.15,000/- per annum as notional income. There is no dispute that the claimant was aged 19 years and the right multiplier is ‘16’ as applied by the Tribunal. Calculated on the said basis, the loss of earning capacity due to the permanent disability at 60% would be Rs.1,44,000/- (15,000 x 60/100 x 16). The Tribunal has awarded Rs.72,000/- only. Therefore, the claimant is entitled for Rs.72,000/- more towards permanent disability. The Tribunal although noted that as per Exs.A5 and A6 (medical bills) the claimant paid a total amount of Rs.1,10,942/- and also purchased medicines worth Rs.14,896/-, awarded only Rs.65,000/- towards medical expenses. The amount claimed was not granted on the ground that it included room rent, assistant, doctor charges and miscellaneous charges. There is no dispute that the claimant paid the said amount and the charges towards rent, doctor charges, miscellaneous charges are part of the treatment. In my view, the claimant is, therefore, entitled for the entire amount of Rs.1,10,942/- towards medical expenses. Thus, he is entitled to Rs.45,942/- more on this count. It is already held that the amounts awarded on other counts are just and reasonable. In the analysis above made, the claimant is entitled for Rs.1,17,942/- (say Rs.1,18,000/-) as enhancement in this appeal. The said amount shall carry interest at 6% per annum from the date of this judgment i.e., 06-08-2010 till the date of realization. The Award in M.V.O.P. No.1678 of 2003, dated 01-09-2005 on the file of the Motor Vehicle Accident Claims Tribunal-cum-XXI Additional Chief Judge-cum-VII Additional M.S.J., Nampally, Hyderabad, is modified accordingly. In the result, the M.A. C.M.A. No.6 of 2006 is dismissed and the M.A. C.M.A. No.33 of 2006 is allowed to the extent indicated above. There shall be no order as to costs in both the appeals. _______________ NOUSHAD ALI, J. 06th August, 2010. skmr