Telangana High Court
Pandavula Suguna vs Konda Ashok on 29 December, 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NOs.238 and 498 of 2022
COMMON JUDGMENT:
MACMA No.238 of 2022 is an appeal filed by the claimants and MACMA No.498 of 2022 is an appeal filed by T.S.R.T.C. Considering the fact that these two appeals arise out of the same award dated 08.03.2022 passed in M.V.O.P.No.628 of 2016 on the file of the Principal Motor Accident Claims Tribunal-cum-Principal District Judge, Warangal, (for short, "the Tribunal"), these two appeals are taken up together and decided by this common judgment.
2. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed before the Tribunal.
3. The facts leading to filing of these two appeals are that M.V.O.P.No.628 of 2022 was filed under Section 166 of the Motor Vehicles Act, 1988, by the mother and brother of Pandavula Madhu (hereinafter referred to as "the deceased"), against respondents 1 and 2, claiming compensation of Rs.10,00,000/- for the death of the deceased in an accident. It is stated that on 15.06.2016 in morning hours, the deceased and his villagers went to Vanabojanalu at Karmaram forest area and due to paucity of water, deceased as a rider and one Yakaiah as pillion rider on his Bajaj Pulsar motor cycle bearing registration No.AP-36-R-8033, went to village for water can and after purchasing water can, they LNA,J MACMA Nos.238 & 498 of 2022 2 returned to forest area and at about 3.00 p.m., when they reached the outskirts of Tadvai village, TSRTC Bus bearing registration No.AP-29-Z-1099 driven by its driver in rash and negligent manner came from Eturunagaram side to Hanamkonda side and dashed to the motor cycle of the deceased in opposite direction, due to which, the deceased and pillion rider fell on the road, sustained fatal injuries and deceased died on the spot. The Police, P.S.Tadvai registered a case in Crime No.65/2016 and after investigation filed charge sheet under Section 304-A IPC against the driver of TSRTC Bus.
4. It is also stated that the deceased was a student studying B.Sc., final year and was hale and healthy, aged about 22 years and was earning Rs.10,000/- per month by doing agriculture by raising commercial crops.
5. The respondent no.1 remained ex parte. The respondent No.2/TSRTC filed counter denying the manner in which the accident took place including the age, avocation and income of the deceased. It is contended that the owner and the insurer of motor cycle are necessary parties to the claim petition and prayed to dismiss the claim petition.
6. On the basis of the above pleadings, the Tribunal framed the following issues:-
LNA,J MACMA Nos.238 & 498 of 2022 3
1. Whether the accident occurred due to rash and negligent driving of the driver of TSRTC Bus bearing No.AP-29-Z-
1099 resulting in death of Pandavula Madhu?
2. Whether petitioners are entitled for compensation, if so, at what rate?
3. To what relief?
7. In order to substantiate the case, on behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A1 to A14 were marked. Respondent no.1 himself examined as RW.1 and no documents were marked. On behalf of respondent no.2-TSRTC, no oral or documentary evidence was adduced.
8. The Tribunal, on conclusion of the pleadings and evidence placed on record by the parties, vide the impugned award, held that the accident had occurred due to rash and negligent driving of the driver of the R.T.C. bus and accordingly, awarded an amount of Rs.4,68,600/- with interest @ 7.5% per annum from the date of petition till the date of realization to be paid by the respondents 1 and 2 jointly and severally. Challenging the same, the present appeals came to be filed by the claimants as well as the TSRTC.
9. Heard Sri K.Venumadhav, learned counsel for the appellants/claimants and Sri G.Srinivas, learned standing counsel for TSRTC.
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10. During the hearing of the appeals, the primary ground of challenge raised by TSRTC in MACMA No.498 of 2022 was firstly, so far as disputing the accident itself, in which the deceased died and secondly, the quantum of compensation awarded by the Tribunal. The learned standing counsel for TSRTC also submitted that driver of the crime vehicle was acquitted in criminal case and there was contributory negligence on the part of the deceased since accident occurred due to triple riding of the motor cycle.
11. MACMA No.238 of 2022 is an appeal filed by the claimants seeking for enhancement of compensation. The primary ground seeking for enhancement of compensation was that the Tribunal had not awarded the compensation as claimed by the claimants and secondly, the Tribunal had erred in awarding 50% contributory negligence on the part of the deceased without there being any evidence, so also the consortium to the claimants. The learned counsel for claimants submitted that the Tribunal erred in taking the income of the deceased as Rs.6,000/-, instead of Rs.15,000/-. He further submitted that the Tribunal ought to have appreciated that there was no negligence on the part of the deceased in riding the motor cycle.
12. In support of the contention that the Tribunal erred imposing contributory negligence to the extent of 50% on the part LNA,J MACMA Nos.238 & 498 of 2022 5 of the rider/driver of the motor cycle, without there being any evidence, the learned counsel for claimants relied upon the decision of the erstwhile High Court of Andhra Pradesh in United India Insurance Company Limited vs. Chendri Ramaiah and others 1 and Reliance General Insurance Co.Ltd., vs. T.Laxman Goud and others 2 Consideration:
13. Coming to the first ground raised by TSRTC i.e., disputing the accident that occurred on 15.06.2016, this Court is of the opinion that TSRTC has failed to discharge its obligations so far as proving the contention raised by it by placing cogent, substantial material and evidence in support of its contention. TSRTC neither examined any witness nor marked any document to support their contention.
14. PW.2-Sadu Kumar, who has been examined as an eye witness, deposed that he witnessed the accident and he categorically deposed that accident occurred only due to rash and negligent driving of TSRTC Bus with high speed and thereby dashed the motor cycle of the deceased in a opposite direction. 1 2010 SCC Online AP 942 : (2011) 2 ALD 3 2 2014 LawSuit (Hyd) 1051 LNA,J MACMA Nos.238 & 498 of 2022 6
15. As per the postmortem report of the deceased, there is no alcoholic content present in the stomach of the deceased. It is the case of TSRTC that the deceased, who rode/drove the motor vehicle, was in drunken state, but in the absence of any documentary evidence or conclusive evidence to come to conclusion that rider/driver of the motor vehicle was in a drunken state at the time of accident, the contention of TSRTC cannot be believed.
16. In Chendri Ramaiah (supra), the learned single Judge of erstwhile High Court of Andhra Pradesh held as under:
"5. Evidence in that particular case is the first criterion while considering the issue regarding negligence or contributory negligence. If evidence on record is scrutinised in the light of the above pronouncements of this Court, it is evident that there is sufficient evidence on record let in by the claimants to prove negligence on the part of D.C.M van driver. PW2 is cashier in Isnapur filling station, Muthangi in front of which petrol pump the accident took place. It is his categorical evidence that the accident occurred due to fault of D.G.M van driver as he drove the vehicle in rash and negligent manner and dashed the motor cycle in wrong direction. It is not a case where there was head on collision between two vehicles on middle of the road. D.C.M van driver drove the same towards wrong side and dashed the opposite motor cycle killing three riders on the motor cycle on the spot. This is not a case where due to triple riding, driver of the motor cycle became cramped and could not control the vehicle due to discomfort or inconvenience because of triple riding. Evidence on record amply proved that the fault was with D.C.M van driver only and that there was no fault on the part of motor cycle rider/driver and that for no fault of the motor cycle driver, D.C.M van came on to wrong side and dashed the motor cycle which was going in proper direction. Thus, the lower Tribunal was right in holding that the accident took place due to rash and negligent driving of D.C.M van driver. The motor cycle rider/driver on which three deceased persons were travelling did not LNA,J MACMA Nos.238 & 498 of 2022 7 contribute any negligence for this accident. This accident was not due to triple riding of the motor cycle, but due to fault as well as rash and negligent driving on the part of the D.C.M van driver."
17. In the above decision, the eye witness P.W.2 categorically deposed that the accident occurred due to fault of D.C.M van driver as he drove the vehicle in rash and negligent manner and dashed the motor cycle in wrong direction. In the case on hand, P.W.2- Sadu Kumar, an eye witness, categorically deposed that the accident occurred only due to rash and negligent driving of TSRTC bus with high speed and dashed the opposite motor cycle, killing three riders of the motor cycle on the spot.
18. Learned counsel for the appellant-claimants contended that the Tribunal erroneously deducted 50% of the compensation amount on account of contributory negligence on the part of the deceased. There is no dispute that the deceased along with two others were travelling on two wheeler in contravention of the provisions of the M.V.Act. The triple riding/driving of two wheeler would attract penal action in accordance with the provision of the M.V.Act. However, that would not necessarily be basis for denying compensation to the victims/dependents since the M.V.Act is beneficial legislation and is aimed at providing financial support to the victims/dependents. In a given case, where a vehicle is driven in violation/contravention of the provisions of M.V.Act and it LNA,J MACMA Nos.238 & 498 of 2022 8 resulted in an accident, the Tribunal can fix contributory negligence on the person, who drove the vehicle in violation of the provisions of the M.V.Act subject to sufficient material, evidence on record. However, in the present case, there is no material, evidence to show that the accident had taken place only because of triple riding of the vehicle by the deceased. Therefore, the Tribunal erred in deducting 50% towards contributory negligence on the part of the deceased. In considered opinion of this Court, the same is not sustainable and accordingly, set aside.
19. The facts of the decision referred supra are similar to the facts of the present case. This Court is in respectful agreement with the decision referred to above. Thus, this Court is of the considered opinion that the Tribunal had erred in imposing 50% contributory negligence on the part of the deceased.
20. In the absence of any material on the part of TSRTC, it is difficult to accept the contention of negligence on the part of rider/driver of the motor cycle. The said ground raised by the appellant-TSRTC thus stands answered in the negative.
21. Insofar as the other contention raised by the learned counsel for TSRTC with regard to the quantum of monthly income of the deceased, the appellants/claimants, except claiming monthly LNA,J MACMA Nos.238 & 498 of 2022 9 income of the deceased as Rs.15,000/- from the agriculture lands to an extent of Acs.3.00 guntas, have not placed any material or evidence before the Tribunal in proof of monthly income of the deceased. In the absence of any proof with regard to the income of the deceased, in considered opinion of this Court, the Tribunal had rightly considered the monthly income of the deceased as Rs.6,000/- per month.
22. Coming to the appeal in MACMA No.238 of 2022 filed by the claimants, on perusal of the entire award, considering the age of the deceased as 22 years as on the date of accident, the Tribunal had rightly considered all the counts i.e., personal expenses, future prospects, multiplier, loss of estate and funeral expenses etc., in view of the decisions of Hon'ble Apex Court in Sarla Verma and others vs. Delhi Transport Corporation and another 3 and National Insurance Co.Ltd., vs. Pranay Sethi and others 4,
23. However, insofar as the contention of the learned counsel for claimants, Tribunal erred in not awarding consortium to the claimants, it is relevant to refer to the decision of Hon'ble Apex Court in Pranay Sethi (supra) at paragraph 59.8, as per which, 3 (2009) 6 SCC 121 4 (2017) 16 SCC 680 LNA,J MACMA Nos.238 & 498 of 2022 10 the claimants are entitled to Rs.40,000/- each towards consortium.
24. The other contention raised by the learned counsel for claimants that Tribunal erred in imposing 50% of the contributory negligence on the part of the rider/driver of the motor cycle i.e., and deceased and this issue is already discussed in the preceding paragraphs and answered in favour of the claimants.
25. The contentions raised by the learned counsel for appellants/claimants deserve to be allowed to the above extent. Conclusion:
26. In view of the above discussion, material and evidence placed on record, the compensation amount is recalculated as under:
Sl.No. Head Compensation awarded
1 Income Rs.72,000/- per annum (Rs.6,000/-
per month)
2 Future prospects Rs.28,800/- (i.e., 40% of the income)
3 Total Income Rs.1,00,800/- per annum
3 Deduction towards personal Rs.50,400/- (i.e., half of Rs.1,00,800/-)
expenses
4 Net Income Rs.50,400/- (i.e., Rs.1,00,800/- (-)
Rs.50,400/- )
5 Multiplier 18
6 Loss of dependency Rs. 9,07,200/- (i.e., Rs.50,400/- x 18)
7 Compensation for loss of Rs. 80,000/-
consortium (Rs.40,000/- x 2)
8 Loss of estate Rs. 15,000/-
9 Funeral expenses Rs. 15,000/-
Total compensation to be paid : Rs.10,17,200/-
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MACMA Nos.238 & 498 of 2022
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27. The total compensation amount payable to the claimants is enhanced from Rs.4,68,600/- to Rs.10,17,200/-, subject to payment of court fee on enhanced compensation amount. The said compensation amount shall also carry interest @ 7.5% per annum from the date of the claim petition made before the Tribunal till the date of the actual payment. The TSRTC is directed to ensure that the entire amount of compensation is deposited within a period of six weeks from the date of receipt of copy of this order, duly adjusting the amount, if any, already paid by TSRTC. The ratio of apportionment of amounts among the appellants/claimants and the permission to withdrawal shall be the same in terms of the award passed by the Tribunal.
28. In the result, MACMA No.238 of 2022 filed by the appellants/claimants is allowed in part as indicated above and MACMA No.498 of 2022 filed by appellant/TSRTC is dismissed. There shall be no order as to costs.
29. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 29.12.2023 kkm