HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A. No.2006 of 2016
JUDGMENT:
Being dissatisfied with the order and decree passed by the Chairman, Motor Vehicle Accident Claims Tribunal-cum-II Additional District Judge, Warangal, in M.V.O.P.No.369 of 2014 dated 27.04.2016, the claimants have filed the present appeal.
2. For the sake of convenience, the parties have been referred to as arrayed before the Tribunal.
3. According to the petitioners, on 27.02.2014 in the night the deceased Sandu Ravi left his house to go to Sri Veerabhadra Swamy Temple, Kuravi in auto bearing No. AP 20 Y 8859 and that on 28.02.2014 at 1-00 hour when the auto reached the outskirts of Purshothamayagudem village, another auto bearing No. AP 36 TB 1713 being driven by its driver came in rash and negligent manner at high speed and dashed the auto in which the deceased was travelling. As a result, the deceased sustained fatal injuries and died on the spot and another person viz., G.Uday Kumar sustained injuries. According to the petitioners, the deceased was aged 22 years, and earning 2 Rs.6,000/- per month by doing agriculture. Thus, the petitioners are claiming compensation of Rs.6,00,000/- under various heads.
4. Respondent No.1 remained ex parte; Respondent No.2 filed counter disputing the manner in which the accident occurred, age, avocation and income of the deceased. It is further contended that the claim is excessive.
5. In view of the above pleadings, the Tribunal raised the following issues:
1) Whether the accident occurred on 28.02.2014 at about 01-11 hour at the outskirts of Purushothamayagudem village, Maripeda Mandal, Warangal District due to rash and negligent driving of driver of auto trolley bearing registration No. AP 36 TB 1713?
2) Whether the petitioners are entitled for
compensation as claimed for, to what amount and
from whom?
3) To what relief?
6. In order to prove the issues, on behalf of the petitioners, PWs.1 and 2 were examined and got marked Exs.A-1 to A-6. On behalf of respondent No.2, no witnesses were examined and no documents were marked.3
7. After full trial, the Tribunal has dismissed the petition on the ground that the eyewitness was not examined.
8. Heard the learned counsel for the appellants-claimants and the learned Standing Counsel for the respondent No.2-Insurance Company. Perused the material available on record.
9. The learned counsel for the appellants-claimants has submitted that although the claimants established the fact that the death of the deceased-Sandu Ravi was caused in a motor accident, the Tribunal dismissed the petition.
10. The learned Standing Counsel appearing on behalf of respondent No.2-Insurance Company sought to sustain the impugned award of the Tribunal contending that the Tribunal after appreciating the evidence on record, has dismissed the petition, as the claimants failed to examine any eyewitness before the trial Court and the same needs no interference by this Court.
11. With regard to the manner of accident, PW-1 who is mother of the deceased reiterated the petition averments. However, she is not an eyewitness to the accident. Therefore, in support of their case, 4 petitioners have examined the Investigation officer in the criminal case as PW-2. PW-2 clearly stated in his evidence that the accident occurred due to rash and negligent driving by the driver of crime auto by name Banothu Mallu and that there was no negligence on the part of the driver of auto in which the deceased was travelling. PW-2 further stated that he examined eyewitness and after thorough investigation filed charge sheet against the auto driver/respondent No.1. The Tribunal held that the evidence of Investigating Officer is not relevant to prove rash and negligent driving by the driver of offending vehicle.
12. Here, it is pertinent to state that the Apex Court in Anita Sharma and others vs. The New India Assurance Company Limited and another in Civil Appeal Nos. 4010-4011 of 2020, held as follows:
"The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true."
13. The Apex Court in "Sunita and others vs. Rajasthan State Road Transport Corporation and another" held as follows:
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"Similarly, the issue of non-examination of the pillion rider, Rajulal Khateek, would not be fatal to the case of the appellants. The approach in examining the evidence in accident claim cases is not to find fault with non examination of some "best" eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. This court, in Dulcina Fernandes (supra), faced a similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and the respondent was acquitted in the criminal case concerning the accident. This Court, however, took the view that the material on record was prima facie sufficient to establish that the respondent was negligent. In the present case, therefore, the Tribunal was right in accepting the claim of the appellants even without the deposition of the pillion rider, Rajulal Khateek, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident."
14. As per the principles laid down in the above decisions, even without examination of the eyewitness, the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred. Thus, the trial Court erred in holding that the rash and negligent driving by the driver of offending vehicle is not proved. Therefore, in view of the above discussion, it is clearly established through the evidence of PW-2 coupled with the documentary evidence available on record that the accident occurred due to the rash and negligent driving of the driver of auto trolley which resulted the death of the deceased Sandu Ravi.
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15. With regard to the quantum of compensation, according to the petitioners, the deceased was doing agriculture and earning Rs.6,000/- per month. However, since the petitioners did not produce any oral or documentary evidence to prove the income of the deceased and the accident occurred in the year 2014, the income of the deceased can be taken at Rs.4,500/- per month. Further, in light of the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1, the claimants are entitled to future prospects @ 40% of his income, since the deceased was aged 23 years. Then it comes to Rs.6,300/- (4,500 + 1,800 = 6,300/-). From this, half of the actual income is to be deducted towards personal expenses of the deceased following Sarla Verma v. Delhi Transport Corporation2 as the deceased was a bachelor. After deducting half of the amount towards his personal and living expenses, the contribution of the deceased to the family would be Rs.3,150/- per month. Since the deceased was 23 years by the time of the accident, the appropriate multiplier is '18' as per the decision reported in Sarla Verma v. Delhi Transport Corporation (supra). Adopting multiplier '18', the total loss of dependency would be Rs.3150/- x 12 x 18 = Rs.6,80,400/-. In 1 2017 ACJ 2700 2 2009 ACJ 1298 (SC) 7 addition thereto, the claimants are also entitled to Rs.33,000/- under the conventional heads as per Pranay Sethi's (supra). Further the petitioner Nos.1 and 2 are also entitled to filial consortium at Rs.40,000/- each as per the Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram3. Thus, in all the claimants are entitled to Rs.7,93,400/-.
16. With regard to the liability, as stated above, the accident occurred due to the rash and negligent driving of the driver of the auto trolley. Though the copy of insurance policy is not filed by either of the parties, no rebuttal evidence was produced by the respondent No.2- Insurance Company and as such, respondent Nos.1 and 2 are jointly and severally liable to pay compensation.
17. In the result, the M.A.C.M.A. is allowed by granting compensation amount of Rs.7,93,400/- to the petitioners with costs and interest at 7.5% p.a. from the date of petition till the date of realization, to be payable by the respondent Nos.1 and 2 jointly and severally. The amount shall be deposited within a period of one month from the date of receipt of a copy of this order. The claimants shall pay deficit Court 3 2018 Law Suit (SC) 904 8 fee on the enhanced compensation, since the initial claim was for Rs.6,00,000/-. On such payment of court fee only, the claimants are entitled to withdraw the amount. Both the claimants are entitled in equal shares. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
_______________________ M.G.PRIYADARSINI,J 05.12.2022 pgp