Cherukuri Venkat Raju vs Parasa Reddy

S. Dasaratharama Reddy, J.—This is an appeal filed by the owner of the bus against the order of the Motor Accidents Claims Tribunal, Machilipatnam awarding compensation of Rs. 10,900/- to the claimant with interest at the rate of 9% p.a. from the date of the petition.

According to the claimant, the accident took place on 18-4-1983 between Pedana and Machilipatnam as a result of rash and negligent driving of the City Bus bearing No. A.P.K. 1445 by the driver who was set ex parte in O.P. and given up in this appeal. The Claimant was a flower vendor travelling in the bus at the time of the accident. Due to the rash and negligent driving of the city bus by its driver, the bus fell in a drainage canal as a result of which the claimant sustained injuries on the right side of his head and the 2nd phaly of the right toe was cut. The claimant filed the O.P. claiming compensation of Rs. 15,000/-.

The owner of the bus, who is the appellant herein, opposed the claim contending that there was no rash and negligent driving on the part of the driver and that the accident took place only due to the burst of the front wheel tyre and accordingly he is not liable. It is also pleaded that in any event the amount claimed is excessive. The Tribunal held that the accident took place due to the rash and negligent driving of the driver and awarded compensation Rs. 10,900/- comprising of Rs. 200/- towards medicines; Rs. 1,200/- for loss of earning power; Rs. 2,000/- for pain and suffering and Rs. 7,500/- u/s 92-A of M.V. Act.

In this appeal though in the grounds of appeal, the value of the appeal is shown as Rs. 10,900/- the effective dispute is only with regard to Rs. 3,400/since the claimant is entitled to Rs. 7,500/- under no fault liability is per Section 92-A of the Act. The learned Counsel for the appellant Sri B. Krishna Mohan appearing on behalf of Sri C. Trivikrama Rao has urged that the accident occurred as a result of bursting of front tyre and not due to the rash and negligent driving of the driver.

It is in the evidence that the driver was acquitted in the criminal case. But it is surprising that the driver was not examined. In support of his contention, the learned Counsel Sri Krishna Mohan relies on Ex.B-2, the M.V. Inspector''s report and according to it, the accident took place as right front tyre tube was burst and the tyre disc was broken and dislocated from the right front wheel drum. R.W.2 is a mechanic working under one Ramanaiah and he vaguely stated that the vehicle was being checked every day before it is put into service and that the accident took place as a result of bursting of the tyre. But the appellant has not examined any person to prove the condition of the the and the details of purchase and the mileage done by it. It may be that the the was flat and bald. On this aspect there is no evidence at all. Under these circumstances, the principal of res ipsa loquitur applies. as held by the Supreme Court in Basthi Kasim Saheb v. Mysore S.R.T. Cor., : AIR1991SC487 The burden is on the owner or the driver to show that there was no negligence or rash driving. But surprisingly the driver was not examined. Hence, the contention that the accident took place due to the bursting of the front the cannot be accepted.

For pain and suffering the respondent was given Rs. 2,000/- by the Tribunal as against Rs. 9,000/- claimed. As per the evidence of the Doctor who is examined as P.W.2, the injury has resulted in permanent disability of the toe. Hence, I think it is reasonable to fix the compensation towards non-pecuniary damages, or pain and suffering, for loss of amenities of life and for expectation of life at Rs. 10,0007- though the claimant has claimed only Rs. 9,000/- in the petition. It is well settled that the Tribunal or this Court can recompute damages under various heads, even more than the amount claimed under any particular head, provided the total amount computed does not exceed the damages claimed in the petition. Thus, the total amount of compensation to be awarded to the claimant is Rs. 11,400/- comprising of Rs. 200/- towards medical expenses, Rs. 1,200/- for loss of earnings for three months and Rs. 10,000/towards non-pecuniary damages.

In addition to this, the claimant is also entitled to future loss of earnings. Unfortunately, the Tribunal has not awarded any amount under this head and evidently thought that the amount of Rs. 7,500/- awarded u/s 92-A of the Act will cover this. As per Section 92-B(3) of the Act, in case of accident caused by the tort of the owner, compensation has to be computed first under ''no fault liability'' and if such amount is less than the amount computed under ''fault liability'' the owner is liable to pay the difference and if the amount payable under no fault liability is equal to or more than the amount computed under fault liability, he will not be liable to pay any amount towards fault liability. Thus, it is the duty of the Tribunal to work out both the liabilities i.e., fault liability and no fault liability and if the amount computed as per the fault liability exceeds the amount payable under no fault liability, that amount has to be awarded. In the instant case, if some amount is added under this head, applying the prescribed multiplier, the claimant will be entitled to total compensation exceeding Rs. 15,000/-. However, computing under this head is academic, since the total compensation, claimed in the petition is Rs. 15,000/- only. In fact the respondent is not entitled to get more than Rs. 10,900/- as he has not filed any appeal or cross-objections. Thus, the second contention that the compensation awarded is excessive is also rejected.

In the result, the appeal is dismissed with costs.