IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.M.A.No.2970 of 2003 DATE:10 .12.2010 Between: K.Satyanarayana …… Appellant And The Andhra Pradesh State Road Transport Corporation, rep. By Regional Manager, Medak …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.M.A.No.2970 of 2003 JUDGMENT: Unsuccessful claimant/injured whose claim petition for compensation of Rs.1,20,000/- was dismissed by the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Medak at Sangareddy by order dated 15.04.2003 in O.P.No.244 of 1998, is the appellant. There is no dispute about factum of accident which took place on 03.02.1998 at about 6.30 P.M. when the injured was travelling by sitting on mudguard of the tractor and suffered injuries. The dispute was with regard to negligence on the part of the R.T.C driver. The lower Tribunal found that the injured sitting on mudguard of the tractor was against safety measures and contrary to Section 125 of the Motor Vehicles Act, 1988 and that therefore the injured is not entitled for compensation. The lower Tribunal further came to the conclusion that owner and insurer of the tractor were also necessary or proper parties to the claim petition. 2) In case there was any negligence on the part of tractor driver contributing to this accident, owner and insurer of the tractor also become necessary or proper parties to the claim petition. In case owner and insurer of the tractor are not impleaded and driver of the tractor contributed any percentage of negligence in this accident, then the Tribunal or this Court is always at liberty to disallow that portion of compensation proportionate to percentage of negligence of driver of the tractor. Therefore, it has to be seen as to how the accident took place and which of the drivers of both the vehicles involved in the accident was responsible for the accident. The injured as P.W-1 spoke to manner of accident as per his version. There is no evidence let in by A.P.S.R.T.C. before the lower Tribunal to show that opposite tractor driver also contributed negligence for the accident. According to P.W-1, the bus driver drove the bus in rash and negligent manner and came on wrong side of road and dashed the tractor in the opposite direction. This is not a case where there was head on collision between two vehicles on middle of the road. As per P.W-1’s evidence, the bus came on wrong side of road and dashed the opposite tractor. This evidence of P.W-1 reveals that driver of R.T.C bus alone was responsible for this accident because of his rash and negligent driving. In the absence of any contra evidence before the lower Tribunal, this Court has no hesitation to come to the conclusion that the accident took place due to rash and negligent driving of R.T.C bus by its driver. 3) Simply because sitting on mudguard is against safety measures and is contrary to provisions of the Motor Vehicles Act, the insured cannot be non-suited. If driver of the tractor violated any provisions of the Act rendering himself punishable under the Act, it is for the appropriate authorities to prosecute driver of the tractor for such violation. Right of the injured cannot be jeopardised by any violation of provisions of the Act made by the driver of the tractor. Further, Section 125 of the Motor Vehicles Act prohibits driver of the motor vehicle from allowing any person to stand or sit or to place anything in such a manner as to hamper the driver in his control of the vehicle. By sitting on rear mudguard of the wheel of the tractor, driving of the tractor was not in any way hampered. Section 125 of the Motor Vehicles Act is directed only against driver and not passenger. Violation of provisions of the Motor Vehicles Act is no ground to disallow claim for compensation for the injured or for the deceased, unless there is any proof of causing any inconvenience or discomfort in that particular case for the driver to drive the vehicle, due to which the accident took place. There is absolutely no evidence on that aspect in this matter. Therefore, the lower Tribunal erred in disallowing compensation to the injured claimant totally. 4) Even though the petitioner claimed that he took treatment in some un-named private hospital by incurring medical expenses of Rs.70,000/-, he did not produce any evidence before the lower Tribunal either for taking treatment in any private hospital or for incurring expenditure to the extent of Rs.70,000/-. He took treatment only in local Government hospital as well as Gandhi Hospital, Secunderabad. P.W-2 who is a doctor in Gandhi Hospital, Secunderabad deposed that the injured was admitted in that hospital on 03.02.1998 and was operated on 07.02.1998 and was discharged on 11.02.1998 and that the injured again came to their hospital for follow up on 10.03.1998 and 26.05.1998. He says that there is visible deformity of the right leg and that there is malunion of fracture of both bones of right leg and that the injured has anatomical and functional deficit and restriction of movements of ankle and knee and that his gait is altered and he has limp on walking. He estimated partial permanent disability of the injured as Mc.Bright scale at 40%. The injured is entitled for basic compensation of Rs.20,000/- for fracture of both bones of right leg including pain and suffering. The injured is further entitled to medical expenses of Rs.5,000/-, transport charges of Rs.500/-, attendant charges of Rs.2,000/- and loss of earnings during the period of treatment for three months to the extent of Rs.3,000/-. P.W-2 could not substantiate as to how there was restriction in movement of ankle and knee when there was no injury to either ankle or knee, but the injury was only to both bones of lower part of the right lower limb. His estimation of disability at 40% is exaggerated. In the circumstances, the disability is estimated at 15%. The injured was only a boy of 19 years age. There is no evidence that he was doing any business muchless earning any amount. In the circumstances compensation for the above disability due to malunion of fracture is limited to lumpsum of Rs.15,000/- . Thus, total compensation amount comes to Rs.45,500/-. 5) In the result, the appeal is partly allowed with proportionate costs granting compensation of Rs.45,500/- to the petitioner together with interest at 7.5% per annum from the date of filing of application in the lower Tribunal. _______________________________ SAMUDRALA GOVINDARAJULU, J December 10, 2010 ksh