IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED CIVIL MISCELLANEOUS APPEAL No.1943 of 2004 Between: A.P.S.R.T.C. rep. by its Managing Director, Musheerabad, Hyderabad ..... APPELLANT(S) AND Aratikatla Venkateswara Rao and another .....RESPONDENT(S) THE HON'BLE SRI JUSTICE GHULAM MOHAMMED CIVIL MISCELLANEOUS APPEAL No.1943 of 2004 ORDER: This is an appeal by the Andhra Pradesh Road Transport Corporation (hereinafter referred to as – ‘the Corporation’) assailing the order and decree dated 16.03.2004 passed in O.P.No.933 of 2001 by the I Additional Sessions Judge (Motor Accidents Claims Tribunal), East Godavari, Rajahmundry, filed by the 1st respondent (hereinafter referred to as - ‘the claimant’) under Section 166 of the Motor Vehicles Act, 1988 (for short – ‘the Act’) claiming compensation of Rs.6,00,000/- for the injuries sustained by him in a road accident. 2. The facts, in brief, are as follows. The claimant was a Goldsmith by profession and was earning Rs.5,000/- per month. On 09.11.2001 at about 7.00 A.M., he went to Thanelanka near Mummidivaram to attend a function on his Hero Honda Motor Cycle bearing registration No.AP-37-N-47. While returning to Rajahmundry, after crossing Mummidivaram by driving the motor cycle slowly on the left side of the road at about 6.00 P.M., one bus belonging to the Corporation bearing registration No.AP-9Z-5084 came in his opposite direction at a high speed and in a rash and negligent manner with the head lights focus and, in order to avoid accident, he entered the road margin but due to the focus of the head lights of the bus which was coming towards him in a high speed, he hit the road side cement culvert and fell on the road and the bus ran over his legs due to which both his legs were crushed and he sustained injuries all over his body. He was shifted to Government Hospital, Amalapuram and from there to Government Hospital, Kakinada, where he was treated from 09.11.2001 to 05.12.2001. Thereafter, he was shifted to Government Head Quarters Hospital, Rajahmundry. It is claimed that he spent Rs.30,000/- for treatment and he has to undergo further treatment. In the counter filed before the Tribunal, the petitioner contends that the accident occurred due to the rash and negligent driving of the motor cycle by the claimant and there was no negligence or rashness on the part of the 2nd respondent herein. Basing on the pleadings of the parties, the Tribunal framed the following issues for trial. (1) Whether the petitioner (claimant) sustained injuries in the road accident that took place on 09.11.2001 due to rash and negligent driving of the APSRTC bus No.9Z.5084 by its driver, 1st respondent? (2) Whether the petitioner (claimant) is entitled for compensation? (3) To what relief? During trial, the claimant examined himself as P.W.1 and also examined two more witnesses as P.Ws.2 and 3 and got marked Exs.A.1 to A.10. On behalf of the Corporation, its driver, the 2nd respondent herein, was examined as R.W.1 but no documents were marked. The Tribunal, holding that the claimant suffered injuries in the accident that took place on 09.11.2001, awarded compensation of Rs.3,68,873/- with costs and interest at 9% per annum from the date of filing the petition till the date of realization. 3. The learned counsel for appellant contended that, in as much as the claimant was also responsible for the accident, the Tribunal ought to have applied the theory of contributory negligence and the Tribunal was not justified in applying the multiplier ‘18’, instead it ought to have applied the multiplier ‘17’. 4. Per contra, the learned counsel appearing for the claimant contended that the Tribunal was justified in applying the multiplier ‘18’ and the theory of contributory negligence has no application in the case on hand in as much as it is evident from the record that the accident occurred purely because of the rash and negligent driving of the driver of the bus belonging to the Corporation. 5. Now, the points for consideration are: (1) Whether the accident occurred due to the rash and negligent driving of the bus by the 2nd respondent herein alone or whether the theory of contributory negligence has to be applied? (2) Whether the compensation awarded by the Tribunal is justified? Point No.1: 6. The claimant as P.W.1 deposed that he received injuries in a road accident which occurred due to the rash and negligent driving of the bus belonging to the Corporation bearing registration No.AP-9Z- 5084 by the 2nd respondent. The 2nd respondent who was driving the bus involved in the accident was examined as R.W.1 and he deposed that on 09.11.2001, he was driving the bus from Amalapuram to go to T.Kothapalli and he was driving the bus very slowly and cautiously by giving dip and dimmer of the lights and also blowing horn and that when the bus entered the culvert at Bondakodu at about 6.30 P.M., he observed the claimant coming on Hero Honda motor cycle in a rash and negligent manner and in high speed and on seeing the bus, the claimant himself dashed against the wall of the culvert as he could not control the speed of the motor cycle due to confusion and sustained injuries. As can be seen from Ex.A.1, copy of the First Information Report, on 09.11.2001 at 6.00 P.M., the claimant was returning to Rajahmundry on a motor cycle from Thanelanka after attending a function at the house of his friend and after crossing Mummidivaram the head lights of the vehicle in his opposite direction fell on him and due to the focus of the head lights, he got confused and turned the motor cycle towards left side, and in that process, the motor cycle hit the culvert as a result of which he fell down on the road and the right front wheel of the bus ran over on his left knee and on hearing his cries the driver of the bus stopped the bus and again drove it backwards, as a result of which his left knee got fractured. As per Ex.A.3, copy of the report of Motor Vehicles Inspector, the accident was not due to any mechanical defects of the bus involved in the accident. So, the finding of the Tribunal in this regard cannot be found fault with and the theory of contributory negligence has no application in the instant case. The point is answered in favour of the claimant. Point No.2: 7. The Doctor who examined the claimant was examined as P.W.2. He deposed that he treated the claimant for about 90 days for the crush injuries to his both legs received in a motor accident and, during the period of treatment, he conducted bone surgery to both his legs and skin grafting was done and steel plates were inserted. Ex.A.4 is the copy of wound certificate issued to the claimant. According to which the claimant sustained five injuries out of them two were grievous in nature. P.W.2 assessed the permanent disability of the claimant to be 60% as he could not perform goldsmith work or any other work as he used to do before. By the time of the accident the age of the injured was 29 years. 8. The Supreme Court in HARDEO KAUR vs. RAJASTHAN STATE TRANSPORT CORPORATION[1] observed as under: “The determination of compensation in respect of injury cases must be liberal and the amount of compensation so awarded should not be niggardly and at the same not a wind fall as a profit making venture through the Tribunals or Courts. When the compensation is awarded by the Courts and Tribunals even the tort feasor should feel that he is atoned for the sin committed by him in committing the accident robbing the precious life of a human being and injuring the innocent person for no fault of his and the guidelines from such precedents is only to emphasise that if there are two precedents dealing with the same question of assessing the compensation, the one which has adopted a liberal approach should be preferred than the one which has adopted the conservative approach.” 9. The Tribunal has granted Rs.69,673/- towards medical expenses; Rs.3,000/- towards loss of earnings; Rs.30,000/- towards pain and suffering; Rs.5,000/- towards extra nourishment; and Rs.2,000/- towards transport charges; which comes to Rs.1,09,673/-. 10. As per the judgment of the Supreme Court in SARLA VERMA vs. DELHI TRANSPORT CORPORATION[2], the appropriate multiplier which can be applied to the injured-claimant is ‘17’. But the Tribunal has wrongly applied the multiplier ‘18’. As per the evidence of the Doctor who was examined as P.W.1, the claimant was suffering from 60% permanent disability. The Tribunal assessed the annual income of the claimant to be Rs.24,000/- i.e. Rs.2,000/- per month. The claimant claimed that he was earning about Rs.5,000/- per month as a goldsmith. The claimant also got examined P.W.3 to prove his occupation and income. P.W.3 deposed that the claimant was working as goldsmith and was earning about Rs.6,000/- per month. Since the claimant was a goldsmith by profession his monthly income can be taken as Rs.3,000/-per month and, since he was suffering from 60% permanent disability, it would come to Rs.1800/- and, therefore, the loss of his future earnings would come to Rs.1,800/- x 12 x 17 = Rs.3,67,200/-. So, the total amount of compensation payable to the claimant would come to Rs.3,67,200/- + Rs.69,673/- + Rs.3,000/- + Rs.30,000/- + + Rs.5,000/- + Rs.2,000/- = Rs.4,76,873/-. 11. Since the Tribunal has granted only Rs.3,68,873/- which is much lower than what the claimant is actually entitled to, I do not find any circumstance warranting interference by this Court in the compensation aspect that too in an appeal preferred by the owner of the vehicle. However, in the facts and circumstances of the case, the rate of interest awarded by the Tribunal is reduced from 9% per annum to 7.5% per annum. 12. Accordingly, the Civil Miscellaneous Appeal is partly allowed. There shall be no order as to costs. ___________________________ GHULAM MOHAMMED, J. 17th June 2010 CVRK [1] AIR 1992 SUPREME COURT 1261 [2] AIR 2009 SUPREME COURT 3104