IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.3980 of 2003 Between: The A.P. State Road Transport Corporation, Rep. by its Managing Director, Musheerabad, Hyderabad. .. Appellant AND Yerramsetti Venkateswara Rao & another .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.3980 of 2003 JUDGMENT: This appeal is directed against the award in M.V.O.P.No.298 of 1997, on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Krishna at Machilipatnam, dated 27.09.2002. 2. The first respondent herein and others were standing at Thotamoola village centre on 14.07.1997 at about 4.30 p.m. when the Andhra Pradesh State Road Transport Corporation bus No.AP 9Z 3845, driven by the second respondent herein rashly and negligently in high speed, dashed against them. Two persons died, while the first respondent herein received injuries and became unconscious. He was shifted to the Government Hospital, Machilipatnam, for treatment and the Police, Pedana Mandal, registered Crime No.82 of 1997 against the bus driver. The first respondent herein claimed to be earning Rs.3,000/- to Rs.4,000/- per month as an Electrician at the age of 30 years, while he suffered a disability after surgery and insertion of a steel rod in the left leg and incurred huge expenses. Hence, he claimed a compensation of Rs.1,00,000/- from the driver and the corporation. 3. The driver/the second respondent herein denied the claims and contended that the claimant and another coming on a scooter in high speed rashly and negligently themselves dashed against the APSRTC bus. 4. The corporation also denied the allegations of the claimant and contended that there was no rashness or negligence on the part of the second respondent herein and it was the rash and negligent driving in high speed of the scooter that caused the accident due to loss of control. 5. The Tribunal tried the claim in M.V.O.P.No.298 of 1997 along with M.V.O.P.No.112 of 1998 after framing issues about the responsibility for the accident and the entitlement of the claimant to just compensation. It examined P.Ws.1 to 5 and marked Exs.A-1 to A-13 and B-1 to B-5 during the enquiry. 6. The Tribunal rendered the impugned common order firstly accepting the evidence of the injured P.W.2 corroborated by P.W.5, a direct witness, and supported by Ex.A-1-First Information Report, Ex.A-3-Motor Vehicle Inspector’s Report and Ex.A-4-Charge Sheet. The Tribunal noted that the direct witness claimed by the respondents was not examined by them and Ex.B-1-Certified copy of his deposition in the criminal case in C.C.No.145 of 1997, Ex.B-3-Deposition of R.W.1 in C.C.No.145 of 1997, Ex.B-4-Statistical Return of the bus Conductor and Ex.B-5-Deposition of P.W.6 in C.C.No.145 of 1997 were analysed by the Tribunal, but due to non-examination of the first respondent/driver himself, the Tribunal refused to place any reliance on the said documents or Ex.B-2-Judgment in C.C.No.145 of 1997. Even if P.W.2 was an interested witness, still the Tribunal felt that the point has to be answered in favour of the claimant. 7. Coming to the quantum of compensation, the Tribunal accepted that the injured P.W.2 was working under one Matta Naga Malleswara Rao with the income from which employment, he was maintaining his family and that due to the fracture to the leg, the claimant was not able to carry on the electrical work. The Tribunal referred to Ex.A-5-Wound Certificate and Ex.A-6-Medical Certificate issued by the Orthopaedician as well as Ex.A-7-Medical Prescriptions to conclude in favour of the claimant about 50% disability as certified by the Medical Board in Ex.A-9. The contractor, Matta Naga Malleswara Rao, certified about paying Rs.75/- per day as salary and Rs.25/- per day as batta and due to non-examination of the person issuing it, the Tribunal considered the claimant to be earning only Rs.50/- per day. Applying a multiplier of 14 and assessing the loss of future income at 50%, the Tribunal awarded a sum of Rs.1,26,000/- apart from Rs.3,000/- towards medical expenses and Rs.10,000/- towards loss of income during the period of treatment. The Tribunal awarded interest at 9% per annum and proportionate costs on the total compensation of Rs.1,39,000/-. 8. The corporation challenged the award in this appeal contending that P.W.2 was an interested witness and Exs.B-1 to B-5 marked with consent were ignored without reason. The judgment in C.C.No.145 of 1997 in which the first informant was also examined had to be given due weight and in the absence of any evidence to assess the monthly income of the injured or his age, the compensation was claimed excessively. The claim is bad for non-joinder of necessary parties and hence, the corporation desired the impugned award to be reversed. 9. Sri Mohd. Arif Valli, learned counsel representing Sri K. Satayanarayana Murthy, learned standing counsel for the appellant corporation and Sri R. Saidi Reddy, learned counsel representing Sri Sivalenka Ramachandra Prasad, learned counsel for the first respondent/claimant are heard and the second respondent was stated to be not a necessary party to the appeal. 10. The points that arise for consideration in this appeal are about the responsibility for the accident and the quantum of compensation. 11. Coming to the manner of the accident, it is true that in Ex.B-1-Deposition of P.W.5 in C.C.No.145 of 1997, the deceased Sairam was stated to have entered the main road without observing the APSRTC bus, but the witness was not examined before the Tribunal and confronted with Ex.B-1 to consider any portion of the earlier deposition to be probablising or proving any aspect. In Ex.B-2-Judgment in C.C.No.145 of 1997, on the file of the III Additional Judicial Magistrate of First Class, Machilipatnam, the bus driver was acquitted due to failure of the prosecution to establish his guilt for rash and negligent driving, but not due to any positive finding of proof of absence of rashness and negligence. The criminal Court observed that the evidence of P.Ws.4 and 5 therein established that the bus was going slowly, while the deceased persons came on the scooter speedily without observing the bus and dashed against the bus. The 5th witness in the criminal case was the claimant herein and he did not deviate from the prosecution version in the chief examination and his answers to any suggestions about the slow driving of the bus cannot be taken as concluding the absence of any such rashness or negligence. Ex.B-3-Deposition of R.W.1 in C.C.No.145 of 1997, Ex.B-4-Statistical Return of the bus Conductor and Ex.B-5-Deposition of P.W.6 in C.C.No.145 of 1997 also cannot be given any probative value in this case in the absence of examination of the persons connected with them before the Tribunal. The earliest version in Ex.A-1-First Information Report and the result of the independent investigation by the statutory Investigating Agency contained in Ex.A-4-Charge Sheet corroborated by the absence of any mechanical defects in the vehicle as certified in Ex.A-3-Motor Vehicle Inspector’s Report may show the claims to the contrary in this enquiry to be not preferable. Even the Inquest Report-Ex.A-11 for the inquest over the dead body of the other person who died in the accident contained the conclusion of independent mediators on the evidence of P.W.5 about the rash and negligent driving by the bus driver. The evidence of P.W.2 corroborated by the independent evidence of P.W.5 herein cannot be considered to have been wrongly accepted by the Tribunal under the circumstances. 12. If the responsibility for the accident was with the bus driver, both the respondents to the claim have to justly and adequately compensate the injured claimant and the evidence of P.W.2 is about the injuries suffered, treatment taken and his being bed ridden for about eight months. He claimed to be unable to attend his regular avocation due to the fracture in the left leg which resulted in 50% disability. He claimed to be aged 35 years, earning Rs.3,000/- per month and P.W.4 is the doctor who issued Ex.A-9-Disability Certificate and he claimed Ex.A-9 to be in respect of a patient treated by him. Even in the earliest version Ex.A-1-First Information Report, it was stated that P.W.1 had his leg fractured and the driver was prosecuted for the offence punishable under Section 338 of the Indian Penal Code, 1860, obviously for causing grievous hurt. Ex.A-5- Wound Certificate, Ex.A-6-Medical Certificate, Ex.A-8- Certificate of salary issued by Mata Naga Malleswara Rao, Ex.A-9-Disability Certificate, etc., were all duly analysed by the Tribunal in assessing the quantum of compensation. Though it is true that the claimant made a claim only for Rs.1,00,000/-, but the Tribunal awarded more in the impugned award, but the same is based on proof of the injuries and the permanent disability of 50% due to the same. In fact, the income of the claimant assessed at Rs.1,500/- per month might be even less than the minimum wages payable under the Minimum Wages Act, 1948, at the relevant time for an Electrician and when even a non-earning person is presumed to be earning Rs.15,000/- per annum by the Second Schedule to the Motor Vehicles Act, 1988, the Tribunal assessing the income of the injured at Rs.18,000/- per annum cannot be considered excessive. The nature of the occupation of the injured and the nature of the injury do not appear not to justify the Tribunal assessing the loss of income at 50% and the sums granted towards medical expenses and loss of earnings during the period of disablement were also minimal. The interest awarded at 9% per annum was not shown to be deviant from the then prevailing bank rates of interest and under the circumstances, neither the liability nor the quantum appears susceptible for any interference in this appeal. 13. Consequently, the Civil Miscellaneous Appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 3rd March, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.3980 of 2003 Date: 3rd March, 2011 KL