T. Balaiah vs Abdul Majeed and another

In an accident that took place on 22-4-1986 in the early hours at 3 a.m., at Toomukunta on the route Koratla to Hyderabad, the double bullock cart driven by the appellant was hit by bus bearing No. AAZ. 6725 belonging to A.P. S.R.T.C., (for short ''the RTC). According to the appellant, the accident was caused due to the rash and negligent driving of the bus by its driver and was injured in his head, back and right hand and the two bulls died and the cart was damaged. The appellant claimed Rupees 50,000, towards compensation comprising of Rs. 19,000/- towards pain and suffering, loss of pleasure and amenities of life; Rs. 10,000/-towards loss of future earnings; Rs. 14,000/-towards compensation for bulls and cart; Rs. 1,000/- towards damages to clothing and watch; Rs. 4,000/- for extra nourishment; Rs. 500/- towards transport to hospital and Rs. 1,500/- towards loss of past earnings. The RTC opposed the claim saying that in the bullock cart, a crane of heavy weight was being carried, projecting its length beyond the cart, that when the bus was passing the cart, the bulls got scared and pulled the cart towards left and that consequently, the crane fell across and came into contact with the left portion of the bus and the bullock cart capsized on account of the heavy weight of the crane and that there is no negligence on the part of the driver of the RTC. The amount of compensation was also challenged as excessive.

The Tribunal found that the accident occurred due to rash and negligent driving by the driver. Regarding compensation, the Tribunal awarded Rs. 5,000/-i.e., Rs. 2.000/-towards cost of one bull, Rs. 1,500/- towards damages to cart and Rs. 1,500/ - towards pain and suffering, and after deducting Rs. 1,800/-paid by the driver to the appellant a few days after the accident, fixed compensation at Rs. 3,200/-. The Tribunal granted interest at 9 per cent per annum from the date of petition. The appellant has filed this appeal claiming further compensation of Rupees 45,000/- while the RTC did not prefer any appeal.

Sri C. Venkata Krishna, the learned counsel for the respondent opposed the appeal contending that the driver of the RTC has not driven the bus negligently or rashly and that the RTC is not liable to pay compensation and that though it has not preferred appeal, the RTC is entitled to support the order of the Tribunal under Order 41, Rule 22 of the CPC on any ground decided against it. I agree with his contention. It is well settled that the provisions of the CPC as far as may be applicable apply to the appeals under the Motor Vehicles Act. For example, it was held by this Court in Government of Andhra Pradesh Vs. K. Padma Rani and Others, that the cross objections are maintainable. Hence, under Order 41, Rule 22 of the Code of Civil Procedure, the RTC is entitled to challenge the finding of the Tribunal regarding rash and negligent driving. But, whenever the respondent opts to invoke Order 41, Rule 22 C.P.C. it has to give notice to the appellant. However, as it has not filed appeal or cross objections, the RTC cannot challenge the award to the extent of the amount granted by the Tribunal viz., Rs. 3,200/-.

Now, the question whether the accident occurred as a result of rash and negligent driving has to be considered.

In this case, the Motor Vehicle Inspector''s Report has not been filed. Though, R.W. 1, driver of the RTC and the first respondent admits that Crime No. 106 of 1986 was registered against him by the Shamerpet police and he was released on bail after arrest, he does not say what happened to the chargesheet and the criminal case. Further, if he is not at fault, there is no reason as to why the driver and R.W. 2, a member of A.P. S.R.T.C., Drivers Union, should go to Shamerpet village and pay Rs. 1,900/- to the claimant (Rs. 1,800/- according to the claimant) and obtain statement from the claimant that the driver was not at fault and that the accident occurred only due to claimant''s negligence. Further the evidence of R.W. 2 is silent about the width of the road and as to why the bus had to go so close to the cart while overtaking. Therefore, the lower court rightly disbelieved by version of the driver of the RTC and found that the accident occurred due to his rash and negligent driving.

Now, the question of compensation has to be considered.

SPECIAL DAMAGES: (a) Extra Nourishment :

The appellant has deposed that he was admitted in Gandhi Hospital, Secunderabad for a week and after discharge, he took medicines for two or three months for the injuries and even at the time of giving evidence, he was having pain in the back while working. He was injured in Head, back and right hand.

According to Ex. A6, he was having a lacerated injury 2" x 1" bone deep on the left side of the forehead, an abrasion of right scapula region and small abrasion on both knees and tenderness on the spine. But there is no evidence to show that he was treated as inpatient. No evidence was also adduced to show that he incurred expenses of Rupees 4,000/- towards extra nourishment. Therefore, I am not inclined to grant any compensation under this head.

(b) Transport to Hospital:

Though no proof is filed in support of his claim that he has incurred Rs. 500/-towards transport, for the two trips he has made from Shamerpet to Hyderabad, Rs. 100/- can be awarded.

(c) Damages to Clothing and Watch :

No proof has been shown in support of his claim that any damage is caused to his watch or clothes. Therefore, no amount can be granted under this head.

(d) Loss of past earnings:

Ms. Padmalatha, learned counsel appearing for the appellant, placing reliance on the appellant''s deposition, contends that he was earning Rs. 50/- per day by hiring the bullock cart. The suggestion of the RTC was that he was earning only Rs. 20/- per day. From the injuries the appellant had, it is reasonable to hold that he could not have driven the bullock cart for 15 days. Taking the income at Rs. 25/- per day, the loss of past earnings amounts to Rs. 375/-. Accordingly, I grant Rs. 375/- under this head.

(e) Loss of Bulls and Bullock-Cart:

Though the appellant claims that the two bulls died, there is no evidence to that effect. The Tribunal rightly held that only one bull died. But, the compensation awarded by the Tribunal for the bull at Rs. 1,000/- is grossly inadequsate. As per the evidence, the bulls were 4 year old and were purchased for Rs. 3,000/- each. So, I think it reasonable to award Rs. 3,000/- for the bull which died in the accident, Regarding bullock-cart, it is in evidence that the appellant purchased it for Rs. 2,000/-. So, the amount of Rs. 1,500/-granted by the Tribunal is enhanced to Rs. 2,000/-.

GENERAL DAMAGES:

NON-PECUNIARY DAMAGES:

(a) Pain and Suffering, loss of amenities and loss of expectation of life:

In this case, there is no proof of even partial disability. So, the appellant is not entitled to any amount for loss of amentities of life or loss of expectation of life. But, for pain and suffering, a sum of Rs. 5,000/- can be granted.

(b) Loss of future earnings:

As regards loss of future earnings, there is no evidence to show that there is disability, even partial. So, the appellant is not entitled to any amount under this head.

After having determined the total amount of compensation at Rs.5,000/-, the Tribunal deducted Rs. 1,800/- which is the amount paid by the driver to the appellant (Rs. 1,900/- according to RW1 and Rs. 1,800/- according to the appellant). This amount being in the nature of ex gratia, the same cannot be deducted from the compensation amount. A Full Bench of Madhya Pradesh High Court in Smt. Kashmiran Mathur and Others Vs. Sardar Rajendra Singh and Another, held that voluntary payments on charitable ground on the occasion of death are not liable to be deducted. A Division Bench of Madras High Court in Pallavan Transport Corporation Ltd. (Metro) Vs. P. Murthy and etc., held that the ex gratia payment made from the Chief Minister''s Relief Fund to the Government employee is not intended to relieve the tort-feasor of his liability. In Himachal Road Transport Corporation Vs. Arvind Singh Mann and Others, , and Division Bench of Himachal Pradesh High Court after analysing the entire case law held that tort-feasors cannot be given benefit of any monies on account of death of near and dear one. It was further held that the payment is deductible if it is made pursuant to statute or by way of interim relief immediately after the accident towards discharge of its final liability. It was also held that the payments made in that case to the passenger from a fund to which contributions are credited from sale of tickets under Himachal Pradesh Goods and Taxation Act were not strictly speaking ex gratia and are deductible. Following these decisions I held in C.M.A. No. 782/90 dated 3-7-1993 that ex gratia payments to claimants are not deductible. Accordingly, I hold that the ex gratia payment of Rs. 1800/- made voluntarily cannot be deducted. Incidentally, I may observe that in Sapana v. Appa Rao (sic) Justice Jagannadha Rao, as he then was, made a passing reference to this principle though this question did not arise in that case.

In the result, the appellant is entitled, in addition to Rs. 1,800/- received towards ex gratia, to global award of Rs. 10,475/- i.e., Rs. 100/- towards transport, Rs. 375/- towards loss of past earnings, Rs. 5,000/-towards bull and bullock cart and Rs. 5,000/-towards paid and suffering. The appellant is also entitled to interest at 12 per cent per annum from the date of petition. The respondents 1 and 2 are jointly and severally liable for the compensation. The appeal is allowed to the extent of Rs. 7,275/- with proportionate costs.

Order accordingly.