APHC010204922022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] SATURDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 183/2022 Between: 1. BOLISETTY VENKATA NAGA KRISHNA SRAVANI, D/O. KRISHNA RAMA HARI PRASAD, OCCUPATION- STUDENT NOW AGED ABOUT 24 YEARS, 4th LINE, RAJAGARI THOTA, GUNTUR CITY, GUNTUR DISTRICT. ...APPELLANT AND 1. MONDEDDULA SRINIVASA REDDY, S/O. POLI REDDY, (OWNER OF THE BUS AP 07 TG 4755) D.NO.15-6-130, REDLAVARI STREET, OLD GUNTUR, GUNTUR CITY, GUNTUR DISTRICT, GUNTUR JCJC. 2. UNITD INDIA INSURANCE CO LTD, REP. BY ITS BRANCH MANAGER, BRANCH OFFICE NO.I, D.NO. 5-37-197/1, NAGARJUNA COMPLEX, 4/7, BRODIPET, GUNTUR CITY, GUNTUR DISTRICT, GUNTUR JCJC, POLICY NO.1508013115P113767767 VALID FROM 12-2-2016 TO 11-2-2017. 3. MANNAVA VENU BABU, S/O. SURYANARAYANA, D.NO.2-2A, KURNUTHALA, VATTICHERUKURU MANDAL, GUNTUR DISTRICT, GUNTUR JCJC (DRIVER OF THE BUS AP 07 TG 4755) (THE 3RD RESPONDENT IS NOT NECESSARY PARTY AS NO CLAIM IS MADE 2 VS,J MACMA.No.183 of 2022 AGAINST HIM IN THE APPEAL) 4. ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION, REP. BY ITS MANAGING DIRECTOR, HYDERABAD. NOW AT NOW AT PANDIT NEHRU BUS STATION, KRISHNA LANKA, VIJAYAWADA (HIRER OF THE BUS AP 07 TG 4755) ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying that the High Court may be pleased to set aside the Judgment and decree passed in M.V.O.P.No.317 of 2017 on the file the Chairman, Motor Accidents Claims Tribunal-cum-III Addl. District Judge, Guntur dated 11-3-2022 and enhance the amount of compensation as entitled by the appellant together with interest at the rate of 12 present per annum from the date of filing the Original Petition till the date of realization and pass such other orders. IA NO: 1 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to permit her to amend the amount of compensation claimed from Rs.12,50,000/- to Rs.17,50,000/- in the Original Petition in MVOP No. 317 of 2017 on the file the court of the Chairman, Motor Accidents Claims Tribunal- cum-III Addl. District Judge, Guntur dated 11-3-2022 and to pass such other orders. Counsel for the Appellant: 1. SIVA PRASAD KATAKAMSETTY Counsel for the Respondent(S): 1. ARAVALA RAMA RAO(SC FOR APSRTC KKAC) 2. P RAMANJANEYULU 3. The Court made the following: 3 VS,J MACMA.No.183 of 2022 JUDGMENT: The appellant/claimant filed the present appeal challenging the order and decree dated 11.03.2022 passed in M.V.O.P.No.317 of 2017 by the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Guntur, whereby and whereunder the Tribunal granted compensation of Rs.8,49,000/- (Rupees Eight lakhs and Forty Nine thousand only), as against the claim of Rs.12,50,000/-, for the injuries sustained by her in a motor accident that occurred on 19.09.2016. 02. For the purpose of convenience, the parties will be referred to as they are arrayed before the Tribunal. 03. The claimant filed the claim petition before the Tribunal under Sections 140 and 166 of Motor Vehicles Act, 1988 and Rules 455 and 475 of A.P.M.V. Rules, the case of the petitioner, in brief, is as follows: The petitioner is resident of 4th line Rajagari Thota, Guntur. On 19.09.2016 at about 8.15 am, while the petitioner was getting down from the bus bearing No.AP07-TG-4755 at Narakoduru Centre, Chebrole Mandal, its driver moved the bus in a rash and negligent manner with high speed without caring whether she completely got down from the bus or not, as a result she fell down from the bus and left rear wheels ran over her left foot. As a result, her left foot was crushed. Basing on the report, Chebrole police registered the case in Crime No.172 of 2016 under Section 337 of IPC against respondent No.3. At the same time, she was shifted to Government General Hospital, 4 VS,J MACMA.No.183 of 2022 Guntur and after first aid she was brought to the Nursing Home of Dr. Vijaya Bhaskar, M.S., (Ortho) and she underwent treatment from 19.09.2016 to 09.11.2016. She underwent major operation to her left toes. As fracture injuries were infected, her 2nd and 5th little toes were amputated on 31.10.2016 and skin grafting was also done. Despite of long and expert treatment her left foot become irregular in shape and unable to walk, run and climb stairs and her left foot became irregular in shape due to loss of skin, muscles and toes. The petitioner has been deprived of natural pleasure of walking, sitting, squatting, climbing. She lost her earning power in addition to the mental agony and suffering due to the injuries caused in the accident. The petitioner further submits that she is studying B.Tech 1st year and she is calculating her future income of Rs.25,000/- per month apart from her services of Rs.4,500/- per month. Seeking compensation of Rs.12,50,000/- for the injuries sustained by the petitioner in the said accident, the petitioner, filed the claim petition against the owner, insurer, driver and hirer of the crime vehicle. 04. Before the Tribunal, the 1st and 3rd respondents-owner and driver of the vehicle remained ex parte. 05. The 2nd respondent filed written statement denying all the allegations made in the petition. however, they admitted that 1st respondent is the owner of the bus, 2nd respondent is the insurer, 3rd respondent is the driver and 4th respondent had hired the bus. It is further submitted that the bus bearing 5 VS,J MACMA.No.183 of 2022 No.AP07-TG-4755 was not insured with this respondent and there is no valid policy by the date of accident. The driver of the said bus was not holding any driving license at the time of accident. There is no negligence on the part of the driver of the bus bearing No.AP07-TG-4755 and accident occurred due to the negligence of the petitioner herself who got down from the bus in negligent manner and as such attributing negligence against the driver of the bus is not tenable under law. As there is no negligence on the part of the driver f the bus and there is no cause of action against this respondent is not maintainable either on facts or under law. As there is no negligence on the part of the driver, the present petition filed against this respondent is not maintainable. The bus was plied violating the rules and regulations under M.V. Act. The petitioner came with imaginary calculations with regard to future income though as on the date of accident she was student only. As such loss of future income claimed by the petitioner is not permitted under law without any basis. The claim of the petitioner is totally speculative and excessive without any documentary proof with regard to the occupation and income of the petitioner in future. There is intentional violation of terms and conditions of the policy by the owner of the bus, this respondent is not liable to indemnify the owner of the bus. The bus is under the control of the APSRTC as such the liability if any, can be fixed against the 4th respondent and the owner of the bus but not against this respondent. The alleged treatment, expenses and permanent disability due to accident is false and the petitioner is normal and attending to her daily needs without any dependency. This respondent also seeks 6 VS,J MACMA.No.183 of 2022 permission to contest the matter on all the grounds in terms of Section 170(B) of M.V. Act in the event the 1st respondent remains exparte or intentionally avoids participating in the proceedings and hence, it was prayed to dismiss the claim petition. 06. The 4th respondent filed written statement denying all the allegations made in the petition specifically and contended that on the date of accident the bus was stopped at stop and the petitioner got down from the door of the bus and in the meantime a bike was came upon her and she was not balanced and her foot came to near the rear wheel of the bus and the bus tires were ran over on her left foot. Originally, there was no negligent driving on the part of the driver and it was occurred in unavoidable circumstances only. The driver i.e., 3rd respondent of the hired bus bearing No.AP07-TG- 4755 is not working under this respondent because he was employed by 1st respondent only and the bus insured with respondent No.2. As such there is no necessity to implead this respondent to the proceedings. This respondent hired the bus bearing No.AP07-TG-4755 from 1st respondent on contract and 1st respondent insured the bus with 2nd respondent and the said policy is in force as on the date of accident. Since respondent Nos.1, 2 and 3 are jointly liable to pay the compensation to the petitioner. This respondent is not at all liable to pay the compensation to the petitioners. The compensation and interest claimed by the petitioner is excessive and exorbitant and hence, it was prayed to dismiss the claim petition. 7 VS,J MACMA.No.183 of 2022 07. Basing on the pleadings, the Tribunal framed the following issues for trial: “1. Whether the petitioner Bolisetty Venkata Naga Krishna Sravani received injuries in the accident occurred on 19.09.2016 at Narakoduru Center, Chebrole Mandal due to rash and negligent driving of bus bearing No.AP07-TG-4755? 2. Whether the petitioner is entitled to compensation, if so, to what amount, and against whom? 3. To what relief?” 08. On behalf of the petitioner/claimant, P.Ws.1 and 2 were examined and Exs.A1 to A7 and Exs.X1 and X2 were marked. On behalf of respondents, Rws.1 and 2 were examined, but the evidence of Rw.1 is eschewed and Ex.B1 to B3 were marked. 09. After hearing both parties and after considering the oral and documentary evidence on record, the Tribunal partly allowed the claim petition with proportionate costs awarding compensation of Rs.8,49,000/- to the petitioner with interest at the rate of 7.5% p.a. from the date of petition i.e., 14.12.2016 till the date of payment or realization, the respondent Nos.1 to 4 are jointly and severally liable to pay the compensation amount and the petitioner is permitted to withdraw the total amount with accrued interest and costs. The rest of the claim of the petitioner is dismissed without costs. 8 VS,J MACMA.No.183 of 2022 10. Aggrieved by the said award, the appellant/claimant preferred this appeal contending that the Tribunal ought to have considered the functional disability of the appellant is 100% under the head of loss of earning capacity basing on the evidence of the Orthopedic Surgeon/Pw.2, as the left foot of the appellant totally damaged leading to amputation of 2nd to 5th toes and deformity of great toe with stiffness of great toe. The Tribunal grossly erred in fixing functional disability of the appellant is 10% by granting a sum of Rs.3,24,000/- under the head of loss of earnings though Pw.2/Orthopedic Surgeon who treated the appellant assessed her functional disability is 20% without assigning any reason. The Tribunal has committed a grave error much less the material irregularity resulting in serious miscarriage of justice in not awarding reasonable compensation on account of severe injuries sustained by the appellant resulting permanent functional disability in a road accident. The other reasons assigned by the learned Tribunal are unsound and baseless in not granting just compensation as per the material available on record and other arguments would be advanced at the time of hearing of this appeal. It is therefore, prayed to allow the appeal. 11. On the other hand, learned counsel for the respondents/respondent Nos.1 to 4 herein has supported the impugned award and prayed to dismiss the appeal. 12. Though notice was served on the 1st respondent/owner of the offending vehicle, there is no representation on his behalf. 9 VS,J MACMA.No.183 of 2022 13. Now the point for consideration is: Whether the order of the Tribunal needs any interference? POINT: 14. To prove the rash and negligent driving of the driver of the crime vehicle by the respondent No.3, the petitioner herself was examined as PW1 and Orthopedic Surgeon was examined as PW2 besides marking documentary evidence as Exs.A1 to A7 and Ex.X1 and X2. The Tribunal through the oral evidence of PW1 & PW2 coupled with documentary evidence i.e., Exs.A1 to A7 and Ex.X1 & X2 established that the accident was occurred only due to the rash and negligent driving of the crime vehicle by the 3rd respondent, due to which the petitioner sustained injuries. Therefore, the Tribunal has rightly articulated the rash and negligent driving of driver of crime vehicle which needs no interference. 15. With regard to the disability PW2, Orthopedic Surgeon stated that the extent of disability is 20% and there is difficulty for walking because of loss of 2 to 4 toes and deformity and that the injured is unable to bear full weight on left foot and right leg has to bear some burden of weight and hence, injured/petitioner will be unfit for the post which require physical fitness. Though PW2, Orthopedic Surgeon stated that the extent of disability is 20% and even as per the schedule grade-2 it is only 9% for amputation of four toes, but the Tribunal in the present case fixed the functional disability of the 10 VS,J MACMA.No.183 of 2022 injured/petitioner as 10% of the total body. Therefore, this Court finds no error in the said finding of the Tribunal, warranting interference with the impugned award. 16. So far as the quantum of compensation is concerned, as the injured PW1 is a B-Tech student as on the date of accident, the Tribunal considered the notional income of the injured as Rs.15,000/- per month and annual income would be Rs.1,80,000/-(Rs.15,000/- x 12). As the age of the injured was 19 years as on the date of accident, the Tribunal below rightly applied the multiplier as ‘18’ in view of the law laid down by the Apex Court in Sarla Varma vs. Delhi Transport Corporation Ltd1. If we calculate the loss of earning per annum (10% of the annual income), it would come to Rs.18,000/- (Rs.1,80,000/- x 10%). After applying the multiplier ‘18’, it would come to Rs.3,24,000/-(Rs.18,000/- x 18) towards loss of earnings. In addition to the above, the Tribunal also awarded Rs.1,50,000/- towards medical, conveyance and nourishment and attendant charges, Rs.2,00,000/- towards loss of amenities, marriage prospectus and permanent disability, Rs.75,000/- (Rs.15,000/- x 5 = Rs.75,000/-) towards loss of earnings during the period the appellant could not attend the work, Rs.1,00,000/- towards pain and suffering, in total, the Tribunal below awarded Rs.8,49,000/- (Rs.3,24,000/- + Rs.1,50,000/- + Rs.2,00,000/- + Rs.75,000/- + Rs.1,00,000/-) to the petitioner. 1 2009 ACJ 1298 11 VS,J MACMA.No.183 of 2022 17. Admittedly, as per the evidence of PW2, who treated the appellant herein, categorically stated that because of disability sustained by the appellant herein, there is difficulty for walking as there is loss of 4 toes and deformity and that the appellant is unable to bear full weight on left foot and right leg has to bear some burden of weight, which fact establishes that the appellant has suffered much pain and suffering, as such, this Court feels it appropriate to enhance another Rs.50,000/- apart from Rs.1,00,000/- already awarded by the Tribunal under the head of pain and suffering. 18. In the result, the appeal is partly allowed enhancing the amount under the head of pain and suffering from Rs.1,00,000/- to Rs.1,50,000/- thereby enhancing the compensation from Rs.8,49,000/- to Rs.8,99,000/-(Rupees Eight Lakhs ninety nine thousand only) with interest at the rate of 7.5% per annum from the date of petition till the date of payment or realization before the Tribunal with joint and several liability. The Respondents are directed to pay the enhanced compensation amount within 30 days from the date of receipt of copy of this order. Pending miscellaneous applications, if any, shall stand closed. ___________________ JUSTICE V.SUJATHA Date: 31.01.2026 PBS