THE HON’BLE SRI JUSTICE V.ESWARAIAH M.A.C.M.A.No.415 of 2007 JUDGMENT: This appeal is filed by the A.P.S.R.T.C./respondent Nos.2 and 3 in M.V.O.P.No.1515 of 2005 on the file of the Motor Accidents Claims Tribunal- cum-X Additional District and Sessions Judge, (Fast Track Court), Visakhapatnam at Anakapalle (for short ‘the Tribunal’), challenging the award, dated 19.10.2006, passed by the Tribunal in fixing 75% of contributory negligence on the part of the appellants. The 1st respondent herein is the claimant, who filed M.V.O.P.No.1515 of 2005 under Section 166 of Motor Vehicles Act, claiming compensation of 3,00,000/- towards special and general damages for the injuries sustained by him in a motor accident that occurred on 01.04.2005 due to rash and negligent driving of the driver of the A.P.S.R.T.C. bus bearing No.AP 11 Z 3531. The Tribunal, after considering the oral and documentary evidence, held that there was 75% contributory negligence on the part of the driver of the A.P.S.R.T.C and 25% on the part of the claimant and accordingly, awarded Rs.9,000/- towards loss of earnings, Rs.50,000/- towards extra nourishment, medicines, treatment, attendant and other expenses and Rs.40,000/- towards pain and suffering i.e., Rs.99,000/- in total, out of which, it was held that the claimant is entitled to 75%, which comes to Rs.74,250/- along with interest at 7.5% per annum. Aggrieved thereby, the A.P.S.R.T.C. filed this appeal contending that there was negligence on the part of the claimant and, therefore, fixing contributory negligence at 75% on the driver of APSRTC bus is without any justification and the quantum of compensation is also excessive without any proof. But, during the course of the arguments, the learned counsel appearing for the appellants mainly concentrated on the percentage of the contributory negligence fixed by the Tribunal and he has not seriously contested the quantum of compensation. It is the case of the claimant that he is a RMP Doctor and resident of Kotturu Junction, Anakapalle. On 01.04.2005 at 10.30 PM, while he was going from his house to Ranga Medical Stores and while crossing the bye- pass road, the 1st respondent in the O.P., who is the driver of the A.P.S.R.T.C. bus, Anakapalle Depot, while proceeding towards Anakapalle from Kasimkota, drove the bus in a rash and negligent manner and in high speed and dashed against him, as a result of which, he fell down on the road and sustained severe bleeding injury to his head and face. Immediately, he was shifted to Seven Hills Hospital, Visakhapatnam, for treatment. A case was also registered against the driver of the bus, in Crime No.85 of 2005 for the offence punishable under Section 338 IPC on the file of Anakapalle Police Station. It is stated that the claimant is a practicing RMP doctor, earning Rs.6,000/- per month. The accident occurred due to the rash and negligent driving of the driver of APSRTC bus and, therefore, he claimed a sum of Rs.3,00,000/- in all respects, for the injuries sustained by him in the accident. A counter has been filed, denying all the allegations and stating that the claimant, while crossing the road divider, lost his balance and fell down on the right side of the front portion of the bus and sustained simple injury on his forehead. The claimant sustained the said injury due to crossing of the road divider carelessly without observing the bus. The bus was proceeding slowly to stop at the College Bus Stop and there was no negligence on the part of the driver of the bus. The earnings of the claimant were also disputed and the quantum of compensation claimed by the claimant is not justified. The claimant himself was examined as PW.1 and stated that while he was proceeding to his house from Ranga Medical Stores by crossing bye- pass road at Kothuru junction, a tractor was coming towards Visakhapatnam side and behind the said tractor, an A.P.S.R.T.C bus was coming and he was at the road edge and the bus, while overtaking the tractor, came and dashed against him and he fell down and sustained bleeding injuries. In the cross- examination, he admitted that after going through the contents of the petition only he has signed the petition and stated that he cannot say which portion of the bus hit him. He has also admitted that he is not an Income-tax assessee prior to the accident and he was having white ration card. It is pertinent to note that in the claim petition, the claimant has stated that while he was going from his house to Ranga Medical Stores and while crossing the bye-pass road, the driver of the A.P.S.R.T.C. bus, while proceeding towards Anakapalle, drove the bus in a rash and negligent manner and dashed against him. But, whereas in his deposition, it is stated that while he was proceeding to his house from Ranga Medical Stores, the A.P.S.R.T.C. bus, while overtaking the tractor, dashed against him. There is a clear discrepancy of the contents in the claim petition and the evidence of the claimant. In the counter, it is the specific case of the A.P.S.R.T.C. that the claimant, while crossing the road divider, lost his balance and fell down on the right side of the front portion of the bus and sustained injuries and at that time the bus was proceeding very slowly to stop at the college junction and there was no rash and negligent driving of the driver of the bus, but due to the negligence of the claimant only the accident occurred. R.W.1, the Conductor of the bus stated that while the bus was about to reach Kothuru college junction bus-stop it was proceeding slowly, the claimant while crossing the road divider slipped and fell down on the right side portion of the bus and the bus driver immediately stopped the bus and took him to the hospital for treatment. The accident occurred due to the negligence of the claimant alone while crossing the road at the road divider. In his cross-examination, he admitted that the bus has to be driven on the highway by taking notice of the pedestrians on the road. The suggestion that the driver of the bus drove the bus in a rash and negligent manner and dashed against the claimant was denied. The driver of the bus was also examined as R.W.2, and stated that, on 01.04.2005, the bus was coming from Kothuru junction, Anakapalle and was about to stop to get the passengers down and at that time the claimant wanted to cross the road across the divider and came and hit their right portion of the bus and fell down and he was immediately took to the hospital for treatment and the accident occurred due to the negligence of the claimant alone. The learned Judge has not at all considered the stand taken by the A.P.S.R.T.C. and the evidence adduced in support of their evidence alleging that the accident occurred purely due to the negligence of the claimant, while he was crossing the road divider and he himself slipped and hit the right side front portion of the bus. Having regard to the facts and circumstances, I am of the opinion that there was clear negligence on the part of the claimant. Therefore, it is just and proper to fix the percentage of the contributory negligence equally on the part of the claimant as well the A.P.S.R.T.C. i.e. 50% on the claimant and 50% on the APSRTC. Insofar as the quantum of compensation is concerned, as already stated, it was not seriously contested and, therefore, I am not inclined to interfere with the same. Accordingly, the appeal is allowed in part holding that the appellants are liable to pay 50% out of the compensation of Rs.99,000/- awarded by the Tribunal. No costs. _____________ V.ESWARAIAH,J Date:17-6-2010 PNV