IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SIXTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.3127 of 2003 Between: APSRTC rep. by its Regional Manager, Kurnool, Kurnool District ..... APPELLANT(S) AND Sri N.V.S.Kumar .....RESPONDENT(S) THE HON'BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.3127 of 2003 ORDER: Respondent herein filed claim petition in M.V.O.P.No.63 of 2001 on the file of the I Additional District Judge-cum-Chairman, Motor Accidents Claims Tribunal, Kurnool, seeking compensation of Rs.5,00,000/- under Sections 163-A and 166 of the Motor Vehicles Act, 1988, for the injuries suffered by him in a motor vehicle accident, alleging that on 17.05.1996 at about 09.00 A.M., while he was proceeding on a scooter bearing No.AP-21-C-0428 as a pillion rider to G.Pulla Reddy Engineering College, Kurnool, in which he was employed, and when reached near the college a bus bearing No.AP-9Z-8106, belonging to the appellant, being driven by its driver came from Kurnool side in a high speed and in a rash and negligent manner on wrong side of the road, dashed the scooter resulting injuries to him. The respondent claims to be aged 35 years by the date of accident and was earning Rs.4,500/- per month. It is further claimed that on account of the permanent disability he was removed from service and he lost his future earning capacity. Appellant filed counter before the Tribunal denying the averments made against it in the claim petition. The Tribunal framed the following issues for trial. (1) Whether the accident occurred due to rash or negligent driving of the APSRTC bus bearing No.AP-9Z-8106? (2) Whether the petitioner is entitled to receive compensation, if so, to what amount? On behalf of respondent, P.Ws.1 to 3 were examined and Exs.A.1 to A.154 were marked. On behalf of appellant, the driver of the bus was examined as R.W.1 but no document was marked. Considering the material on record, the Tribunal, holding that the accident occurred due to the rash and negligent driving of the bus by its driver, awarded compensation of Rs.2,37,546/- to the respondent with interest at 9% per annum from the date of petition till the date of realization. Aggrieved of the compensation awarded, the present appeal is by the respondent before the Tribunal. 2. The learned counsel for the appellant vehemently contended that the evidence of R.W.1, the driver of the bus, to the effect that by the time of accident, the driver of the scooter, on which the respondent was proceeding as a pillion rider, suddenly took turn to his right without giving any signal; that, even though he applied sudden brake and stopped the bus, the scooter came in contact with the front left side portion of the bus; and that he was not driving the bus in a rash and negligent manner at that point of time; would clearly go to show that the rider of the scooter was responsible for the accident. It is contended that the driver of the bus is not at all responsible for the accident and the rider of the scooter alone is responsible for the accident and the Tribunal failed to at least apply the theory of contributory negligence. The learned counsel for the respondent/claimant opposed the applicability of theory of contributory negligence to the case on hand. 3. I find some force in the contention of the learned counsel for the appellant because, in his evidence, R.W.1, the driver of the bus, clearly deposed as to where and how the accident took place. R.W.1 also deposed that in spite of taking precautionary measures i.e. by applying sudden brakes, he failed to prevent the accident inasmuch as the rider of the scooter suddenly took turn to his right without giving any signal and came in contact on front left side portion of the bus. He also denied that at the time of accident he was driving the bus in a rash and negligent manner. Since the rider of the scooter is not examined to rebut the said evidence, it cannot be said that R.W.1 alone was responsible for the accident. So, I hold that the theory of contributory negligence is applicable to the case on hand. In the facts and circumstances of the case, I am of the considered opinion that R.W.1, the driver of the bus, can be attributed with 80% negligence or contributory negligence and the rider of the scooter can be attributed with 20% negligence. 4. Coming to the compensation aspect, the Tribunal awarded Rs.1,57,794/- towards loss of future earning power due to permanent disability; Rs.24,752/- towards loss of past earnings; Rs.25,000/- towards past medical expenses; Rs.10,000/- towards future medical expenses; Rs.20,000/- towards pain and suffering; totaling to Rs.2,37,546/-. 5. The Tribunal rightly took the earnings of the claimant at Rs.37,128/- per annum and his disability at 25%, but applied the multiplier ‘17’ as is shown in the Second Schedule to the Motor Vehicles Act, 1988. Since this is a claim under Section 166 of the Motor Vehicles Act, 1988, as per the judgment of the Apex Court in SARLA VERMA vs. DELHI TRANSPORT CORPORATION[1], the appropriate multiplier applicable for the age of the claimant i.e. 35 years is ‘16’. So, the loss of future earning power due to permanent disability would come to Rs.37,128/- x 16 x 25% = Rs.1,48,512/-. 6. Instead of the amounts granted under other heads, I am inclined to grant Rs.25,000/- towards pain and suffering; Rs.25,000/- towards medical expenses; Rs.10,000/- towards future medical expenses and Rs.10,000/- towards extra nourishment. 7. So, the respondent is entitled to Rs.1,48,512/- towards loss of future earning power due to permanent disability + Rs.25,000/- towards pain and suffering + Rs.25,000/- towards medical expenses + Rs.10,000/- towards future medical expenses + Rs.10,000/- towards extra nourishment, totaling to Rs.2,18,512/- which can be rounded off to Rs.2,20,000/- towards compensation for the injuries received by him in the accident. 8. Since the rider of the motor cycle who is attributed with 20% negligence is not arrayed as a party-respondent to the claim petition, the claimant is entitled to only 80% of the compensation i.e. Rs.2,20,000/- x 80% = Rs.1,76,000/- from the appellant. 9. Therefore, the appeal is allowed-in-part. The award of the Tribunal is modified and an award is passed for Rs.1,76,000/- with proportionate costs before the Tribunal payable by the respondent with interest at 9% per annum from the date of the petition till the date of realization. The parties shall bear their own costs in this appeal. ___________________________ GHULAM MOHAMMED, J. 26th August 2010 CVRK [1] AIR 2009 SUPREME COURT 3104