IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE NINTH (9TH) DAY OF NOVEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.353 of 2008 Between: P. Subba Reddy … Appellant And: APSRTC, Hyderabad … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.353 of 2008 JUDGMENT: This appeal is directed against the order dated 28.05.2007 in MV OP No.440 of 2005 on the file of the MACT cum VII Additional District Judge, Ongole, wherein the said claim application filed by the appellant herein, was allowed in part awarding compensation of Rs.41,000/- with interest at 7.5% p.a. from the date of petition. 2. Heard both sides. Perused the record. 3. The appellant herein filed claim application under section 166 of the Motor Vehicles Act, claiming compensation of Rs.2 lakhs for the injuries sustained by him in the motor vehicle accident that occurred on 13.10.2005. According to the claimant, on that day, at about 6.30 a.m. while he was coming to Ongole on his motor cycle bearing No.AEE 4644 to attend his duties and when he reached Sapta village, an APSRTC bearing No.AP 10 Z 7884 came in the opposite direction, driven in a rash and negligent manner by its driver dashed against the motor cycle, as a result of which, the claimant sustained fracture of shaft of right femur and that he was hospitalized up to 28.10.2005. It is further pleaded that the claimant was aged 36 years and working as goods auto driver in ‘Variety Supplies’, drawing Rs.5000/- per month. 4. The respondent filed counter, opposing the claim and denying their liability to pay the compensation. 5. During enquiry, PWs.1 to 5 were examined and Exs.A.1 to A.48 were marked on behalf of the claimant. No oral or documentary evidence was adduced on behalf of the respondent/ APSRTC. On a consideration of the evidence available on record, the Tribunal held that the accident occurred on account of the contributory negligence on the part of both the claimant and the driver of APSRTC bus. The Tribunal further estimated total compensation at Rs.80,753/-, but awarded half of the same in a sum of Rs.40,376/- which is rounded to Rs.41,000/-. Aggrieved by the same, the claimant preferred the present appeal. 6. The main contention of the learned counsel for the appellant is that the Tribunal erred in finding that the claimant also contributed to the accident in the absence of any evidence in that regard. Learned counsel for the appellant further contended that the Tribunal ought to have taken the income of the claimant at Rs.5000/- per month as testified to by his employer-PW.2. Learned counsel for the respondent-RTC would however seek to justify the award on the ground that as the accident occurred due to the collision of two vehicles, the finding about the contributory negligence on the part of the claimant does not call for interference. He would further contend that the amount of Rs.3000/- per month taken as income of the claimant is excessive. 7. The case of the claimant is that on 13.10.2005 at about 6.30 a.m. while he was coming to Ongole on his motor cycle to attend to his duties, APSRTC bus came in the opposite direction driven in a rash and negligent manner by its driver and dashed against the motor cycle. PW.1 claimant testified as to how the accident occurred. His version is supported by Ex.A.1 FIR and charge sheet Ex.A.3. The police after due investigation filed charge sheet Ex.A.3 against the driver of APSRTC bus. If the APSRTC sought to contend that there was contributory negligence on the part of the claimant, they ought to have examined the driver of the bus to show as to how the accident occurred and under what circumstances the driver of the bus could not avoid the same and in what manner the claimant has also contributed to the accident. However, the driver of the bus is not examined and for no stated reason. In the absence of the evidence of the driver of the bus and there being no evidence adduced by APSRTC, either oral or documentary, the plea that the claimant also contributed to the accident by his own negligence, remains totally unsubstantiated. The Tribunal has recorded finding of contributory negligence as there was collision between two vehicles. When the two vehicles are involved in the accident, necessarily there is bound to be a collision between them in the sense that without there being any contact between two vehicles, the accident would not occur. From the mere fact that there was collision between two vehicles and especially when it is not shown that it was head on collision and that it occurred on account of the claimant coming on the wrong side of the road or in violation of any rules of the road, the inference of contributory negligence on the part of the driver is totally unwarranted. In the circumstances, it is held that the finding of the Tribunal about the contributory negligence on the part of the claimant is liable to be set aside and is accordingly set aside. 8. Regarding quantum of compensation, the Tribunal has awarded a sum of Rs.40,753/- towards medical expenses, Rs.3000/- towards loss of past income for one month, Rs.5,000/- towards future medical expenses, Rs.32,000/- towards pain and suffering, making up a total of Rs.80,753/-. The medical evidence on record, particularly the testimony of doctors-PWs.3 to 5, who treated the claimant and Ex.A.4 surgery certificate, would go to show that the claimant sustained fracture of right leg and that he was shifted to Peoples Trauma Hospital, Guntur, where he underwent treatment as inpatient from 14.10.2005 to 29.10.2005 and during the said period, he had undergone surgery on 20.10.2005. Having regard to the nature of the injury sustained by the claimant and the treatment under gone by him as inpatient for 15 days and also in view of the surgery undergone, the amount of Rs.40,753/- awarded by the Tribunal towards medical expenses covered by bills and prescriptions Exs.A.6 to A.48, are considered to be just and reasonable. The Tribunal further awarded a sum of Rs.32,000/- towards pain and suffering. As the claimant suffered only one grievous injury, he is entitled for a sum of only Rs.5000/- towards pain and suffering as per the II schedule of the Motor Vehicles Act, which can be taken as guide. The Tribunal awarded Rs.3000/- towards loss of past income, for a period of one month. The claimant is stated to be auto driver. PW.2 employer has testified that he was paying salary of Rs.5000/- per month, but he has not filed any salary certificate nor did he produce any other documentary evidence showing payment of salary of Rs.5000/- per month. In the absence of any such evidence, the Tribunal has reasonably taken the amount of Rs.3000/- per month as income of the claimant, who was an auto driver. However, instead of awarding loss of past income for one month, the Tribunal ought to have awarded the same for a period of four months, having regard to the nature of the injury sustained by the claimant. The claimant is therefore entitled for Rs.12,000/- towards loss of past earnings. The claimant is also held entitled in a sum of Rs.5,000/- towards extra nourishment, Rs.5,000/- towards transport charges, Rs.5,000/- towards attendant charges. The Tribunal awarded a sum of Rs.5000/- towards future medical expenses. It is in the evidence of PW.3 that the claimant has to undergo further surgery for removal of the plates and nails. Under those circumstances, the amount awarded at Rs.5,000/- towards future medical expenses is considered too meager and the same is enhanced to Rs.10,000/-. Thus the claimant is entitled for a sum of Rs.82,753/-, which can be rounded to Rs.83,000/-, with interest at 6% per annum from the date of petition. As the finding of the Tribunal regarding contributory negligence on the part of the claimant is set aside, the respondent-RTC is held liable to pay the entire compensation as stated above. The impugned award is modified accordingly. 9. In the result, the appeal is allowed to the extent stated above. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 09.11.2011 bss