THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.3987 OF 2012
JUDGMENT:
This M.A.C.M.A. is filed under Section 173 of the Motor Vehicles Act, 1988 by the appellants/petitioners aggrieved by the award and decree dated 17.12.2007 passed in O.P.No.890 of 2005 by the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Warangal (for short "the Tribunal").
2. For convenience, the parties will be hereinafter referred to as they are arrayed before the Tribunal.
3. Brief facts of the case are as follows:
On 17.09.2004 at about 12.00 noon one Mr. Mahesh (hereinafter referred to as 'the deceased') was riding a motorbike bearing No.AAO 2797 along with his friend Mr. Lingaiah as a pillion rider, and when they were near Vishwa Bharathi School within Parvathagiri Village limits proceeding on the extreme left side of the road, one Jeep bearing No.AP- 20-U-3749, driven by its driver in a rash and negligent manner, while overtaking a bullock cart without observing the 2 motorbike of the deceased, dashed against the motorbike. As a result, the deceased and his friend fell and received severe injuries. Immediately, they were shifted to M.G.M. Hospital and the deceased died on the same day. Therefore, the petitioners filed the O.P. seeking compensation of Rs.7,52,000/-.
4. Before the Tribunal, the 1st respondent filed a counter stating as follows :-
"The first respondent filed a counter admitting that he is the owner of the Jeep and the accident although with the explanation that the accident was result of the contribution by the deceased. He would bring out that the said vehicle is insured with the second respondent against such risk and as such, it is the second respondent, who is liable to compensate the petitioners, if any."
5. The 2nd respondent filed a counter denying the averments made in the claim petition, including the manner in which the accident occurred, the age, avocation and income of the deceased. It is further contended that the compensation claimed is excessive and prayed to dismiss the claim petition. 3
6. PW.1 was examined and marked Exs.A1 to A6 to prove the petitioners' case. No oral evidence was adduced, but marked Exs.B1 to B5 on behalf of the respondents.
7. After hearing both sides and considering the oral and documentary evidence available on record, the Tribunal dismissed the O.P. Challenging the same, the petitioners have filed the present appeal.
8. Heard both sides and perused the record.
9. Learned counsel appearing for the petitioners contended that the Tribunal has misconceived the very intent of the legislature, and lost track of the fact that it is a social welfare legislation and dismissed the claim petition. The Tribunal has not properly appreciated the evidence available on record and erred in dismissing the O.P. The Tribunal failed to appreciate that the maxim "Res ipsa loquitor" is applicable in the instant case and that the facts admitted need not be proved, as the insured, the owner of the offending vehicle himself, admitted that there was an accident and the post- mortem report says that the death of the deceased is the result of a road accident. The Tribunal ought to have awarded just 4 compensation, and therefore, the order passed by the Tribunal may be set aside by granting just compensation.
10. Learned counsel for the petitioners mainly contended that the Tribunal erroneously dismissed the O.P. In support of his case, learned counsel for the petitioners relied upon the judgment of this Court in SAROJANA AND OTHERS Vs. VENKATESHWARLU AND OTHERS 1, wherein this Court held as follows:
"According to the settled principle of law laid down by the Apex Court in National Insurance Company Ltd. Vs. Sinitha & others, 2012 (2) ALD 112 (SC) = AIR 2012 SC 797, the initial burden is on the respondents to prove that the accident did not occur due to negligent act of the driver of the Auto, but to prove the said contention, the 3 rd respondent did not examine the driver of the auto, who is the competent person to speak about the manner in which the accident occurred or any direct witness to prove the manner of accident and to attribute negligence to the driver of the jeep or the circumstances which led to the accident. Therefore, the 3rd respondent miserably failed to discharge its initial burden to prove that the accident has not occurred due to rash and negligent act of the driver of the Auto. When once 1 2022 (6) ALD 504 (TS) 5 the 3 rd respondent failed to discharge its initial burden, the claimants need not establish the occurrence of accident due to rash and negligent act of the driver of the auto. Admittedly, the auto and jeep were involved in the accident and the deceased was traveling in the auto at the time of accident. To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who were more responsible for the accident and who of the two had the last opportunity to avoid the accident. As per the evidence of P.W.2, who is said to be eyewitness to the occurrence of accident, deposed that the accident occurred while the auto driver tried to overtake a jeep, it was turned turtle. Had, the driver of the auto taken minimum care and caution in driving the auto and he did not try to overtake the jeep, the accident would not have occurred."
11. Learned counsel for the petitioners further relied upon Rule 476(7) of the Andhra Pradesh Motor Vehicles Rules, 1989, which reads as follows :-
"(7) Basis to award the claim :- The Claims Tribunal shall proceed to award the claim on the basis of;-
(i) Registration Certificate of the Motor Vehicle involved in the accident;6
(ii) Insurance Certificate or Policy relating to the insurance of the Motor Vehicle against the Third party risk;
(iii) Copy of First Information Report;
(iv) Post-mortem certificate or certificate of inquiry from the Medical Officer; and
(v) The nature of the treatment given by the Medical Officer who has examined the victim."
12. Learned counsel appearing for the petitioners also relied upon the judgment of the Hon'ble Apex Court in NATIONAL INSURANCE COMPANY LIMITED Vs. RATTANI AND OTHERS 2, wherein the Hon'ble Apex Court held as follows :-
"13. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.2
2009 ACJ 925 7 As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose.
14. An admission made in the pleadings, as is well-known, is admissible in evidence proprio vigore. We, thus, are of the opinion that the Tribunal as also the High Court committed a serious error in opining that the insurance company was liable."
13. Per contra, learned counsel appearing for the 2nd respondent submits that the Tribunal, after considering the oral and documentary evidence, had rightly dismissed the O.P.
Therefore, there are no reasons to interfere with the order passed by the Tribunal.
14. In the instant case, PW.1 is not a direct witness to the occurrence. A perusal of Exs.A1 to A5 would go to show that the complaint was lodged on 18.09.2004 though the accident had occurred on 17.09.2004 at about 12.00 noon. It would disclose that after the accident the deceased and the 8 pillion rider Mr.Lingaiah were shifted to M.G.M. Hospital and on enquiry, the said Lingaiah disclosed the vehicle number of the 1st respondent and the manner in which the accident took place.
15. The Tribunal assessed the compensation at Rs.3,85,340/- with costs and interest @ 7.5% per annum and dismissed the O.P. by observing as follows :-
"15. Assuming that such an admission can be taken as evidence in cases of this nature, then also what is stated by the first respondent in his counter, is that the deceased himself contributed to the accident. He is not clear as to the nature of the contribution, but then when the first respondent makes a qualified statement in his counter, it becomes the duty of the petitioners to bring out that the accident was due to the negligent driving by the driver of the deceased, particularly when the petitioners claim the income of the deceased as Rs. 5000/- which works out to Rs. 60,000/- p.a., and as such it is the provisions of Section 166 M.V. Act and not 163-A M.V. Act which shall apply to the facts of the case.
16. I am not able to understand as to why Mr. Lingiah is not examined at the trial though he is an eye-witness to the incident and an injured in the incident and it is he who gave out the vehicle number of the first respondent and the manner in which the accident took place. As far as the FIR is concerned, it is totally hearsay and there is 9 no other document bringing out the involvement of the vehicle of the first respondent and the manner in which the accident took place. It appears to me, in the absence of the evidence of the said Mr. Lingaiah, and the first respondent or his driver, that the first respondent is admitting about the accident, although with a qualification, to help the petitioners for reasons known to him alone.
Under the above circumstances, I am of the considered view that basing on the material on record, it cannot be said that the accident involved the vehicle of the first respondent driven by its driver negligently."
.... The petitioners are entitled to a total compensation of Rs.3,85,340/- with costs and interest on the awarded sum @ 7.5% per annum from the date of petition till realization from 1st and 2nd respondents jointly and severally in case it is ultimately held that the petitioners are entitled to compensation.
...... I answer second and third issues holding that the petitioners would not be entitled to any compensation from any of the respondents and the petition is therefore liable to be dismissed although without costs."
16. In the present case, the eyewitness to the accident was not examined by the petitioners. The burden lies on the petitioners to prove the negligence, but it is not done in the present case. In those circumstances, the Tribunal held that the petitioners had not proved the negligence of the driver of 10 the offending vehicle and assessed the compensation at Rs.3,85,340/- and accordingly dismissed the O.P. The accident occurred on 17.09.2004, and the complaint was lodged on 18.09.2004, and there is a mere delay of 24 hours. There are catena of decisions that delay in filing the FIR is not a valid ground to deny the compensation. Merely because there is a delay of one day in lodging a complaint and merely because the eye witness was not examined, it cannot be said that the vehicle in question was not involved in the accident, more particularly when Exs.A1 to A3 disclosed the involvement of crime vehicle in the accident. Moreover, no contra evidence is adduced by the Insurance Company to establish that the vehicle was not involved in the accident. Apart from that, the delay is not fatal if the proper explanation is offered for such delay. In view of the above judgments of the Hon'ble Apex Court with regard to the delay in registration of FIR and the statement of the 1st respondent in his counter indicating the involvement of the vehicle in question, this Court is of the opinion that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle. 11
17. With regard to the quantum of compensation, the petitioners stated that the deceased was earning Rs.5,000/- per month as a plumber and he was aged about 28 years. To prove the same, the petitioners have filed Ex.A5-Certificate issued by Krishna Enterprises. The Tribunal fixed the monthly income of the deceased at Rs.3,000/- per month, which is very meager. As the petitioners have filed Ex.A-5, this Court is inclined to fix the monthly income of the deceased at Rs.5,000/-. Apart from the same, the petitioners are entitled to an addition of 40% towards future prospects, as per the decision of the Hon'ble Supreme Court in Pranay Sethi (supra). Therefore, the monthly income of the deceased comes to Rs.7,000/- (Rs.5,000/- + Rs.2,000/-). The Tribunal deducted 1/3rd towards personal expenses of the deceased. As the dependants are four in number, 1/4th has to be deduced towards personal expenses of the deceased instead of 1/3rd. After deducting 1/4th towards the personal and living expenses, the monthly contribution of the deceased to the family comes to Rs.5,250/- (Rs.7,000/- - 1,750/-). As the deceased's age was 28 years at the time of the accident, the appropriate multiplier applicable is '17'. Adopting multiplier 17, the total loss of earnings comes to Rs.5,250/- x 12 x 17 = 12 Rs.10,71,000/-. The Tribunal awarded an amount of Rs.3,000/- towards funeral expenses, Rs.5,000/- towards loss of consortium and Rs.2,500/- towards loss of estate, which are very meagre. The petitioners are further entitled to Rs.77,000/- (Rs.40,000/- + 15,000 + Rs.15,000/- + 10%) towards loss of spousal consortium, loss of estate and funeral expenses as per Pranay Sethi (supra). Further, considering the fact that petitioner Nos.4 and 5 are the parents of the deceased, this Court is inclined to award a sum of Rs.40,000/- each under the head of the filial consortium and the petitioner Nos.2 and 3 being minors, this Court is inclined to award a sum of Rs.40,000/- each under the head of the parental consortium as per the decision of the Apex Court in Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others 3. Thus, in all, the petitioners are entitled to a sum of Rs.13,08,000/-.
18. Though the claimed amount is Rs.7,52,000/-, invoking the principle of just compensation, and in view of the law laid down by the Hon'ble Supreme Court in Rajesh vs. Rajbir Singh 4, and in a catena of decisions, this Court is 3 (2018) 18 SCC 130 4 MANU/SC/0480/2013 13 empowered to grant compensation beyond the claimed amount.
19. As seen from the cause title, the case against respondent No.1 was dismissed for default on 04.01.2012. The dismissal against respondent No.1/owner is of no consequence for the determination of a just, fair and reasonable quantum of compensation against the Insurance Company in view of the judgment of this Court in Meka Chakra Rao Vs. Yelubandi Babu Rao @ Reddemma. 5 Therefore, the 2nd respondent-Insurance Company is liable to pay compensation to the petitioners.
20. Accordingly, the M.A.C.M.A is allowed by setting aside the order dated 17.12.2007 passed in M.V.O.P.No.890 of 2005 by the Tribunal. The petitioners are entitled to the compensation of Rs.13,08,000/- (Rupees thirteen lakh eight thousand only) with interest @ 7.5% p.a. from the date of petition till the date of realization. The respondents are directed to deposit the said amount with costs and interest, after giving due credit to the amount already deposited, if any, within a period of two months from the date of receipt of a 5 2001(1) ALT 495 DB 14 copy of this judgment. On such deposit, the 1st petitioner is entitled for a sum of Rs.6,00,000/-, petitioner Nos.2 and 3 are entitled to a sum of Rs.2,00,000/- each and petitioner Nos.4 and 5 are entitled to a sum of Rs.1,54,000/- each and they are permitted to withdraw their respective share amounts. However, the petitioners are directed to deposit the deficit court fee. No order as to costs.
Miscellaneous petitions, if any are pending, shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 15.11.2023 Prv