Telangana High Court
Mallepally Pushpa,Pushpavathi And 2 ... vs Banoth Srinu And Another on 23 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No.412 of 2018 J U D G M E N T:
Dissatisfied and aggrieved with the dismissal Order dated 31.07.2017 passed in Motor Vehicle Original Petition No.890 of 2013 by the learned Chairman, Motor Vehicle Accident Claims Tribunal-cum-Principal District Judge, Nalgonda (for short "the Tribunal"), the appellants- claimants preferred the present Appeal praying this Court to set aside the impugned Order.
02. For the sake of convenience, hereinafter, the parties will be referred to as per their array before the Tribunal.
03. Brief facts of the case are that the petitioners filed a petition under Section 166 of the Motor Vehicle Act, claiming compensation of Rs.10,00,000/- with interest on account of death of Sri Mallepally Veeraiah, husband of claimant No.1 and father of claimant Nos.2 & 3 (hereinafter referred to as 'the deceased'), who died in a Motor Vehicle Accident that occurred on 02.09.2013.
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04. According to the petitioners, on 02.09.2013 while the deceased as rider along with his villager by name Sreenu as pillion rider were proceeding on Hero Honda Motorcycle bearing No. AP 24 AQ 6672 from Penpahad Village and Mandal towards Suryapet Town, on extreme left side of the road and when they reached front side of Eenadu Office at about 03.30 PM., one Hero Honda Motorcycle bearing No. AP 24 AH 2829 (for short 'Crime Vehicle') came in opposite direction from Suryapet town towards Durajpally side, in high speed, rash and negligent manner and dashed Hero Honda Motorcycle bearing No. AP 24 AQ 6672 of the deceased. Due to which, the deceased sustained serious head injury and other bleeding injuries all over the body and he was shifted to Government Area Hospital at Suryapet in 108 Ambulance. Again he was shifted to Krishnaveni Hospital, Hayathnagar at Hyderabad and while undergoing treatment the deceased succumbed to the injuries on 14.09.2013. The Police, Suryapet Town registered a case in Crime No.319 of 2013 for the offence under Section 337 of the Indian Penal Code against the rider of Hero Honda Motorcycle bearing No.AP 24 AH 2829 3 and later section of law was altered to Section 304-A and 337 of the Indian Penal Code.
05. As per the claimants, the deceased was aged 45 years as on the date of accident and he used to work as Electrician and doing agriculture and was earning Rs.10,000/- per month and used to contribute his entire earnings for the welfare of the family. Due to sudden demise of the deceased, the petitioners lost their bread winner and love and affection. Therefore, the claimants filed the claim petition against respondent Nos.1 & 2 claiming compensation of Rs.10,00,000/- on various heads.
06. Before the Tribunal, while the respondent No.1 remained ex-parte, the respondent No.2 filed counter denying the averments of the petition, age, avocation of the deceased, the relationship between the deceased and the claimants, manner of accident, involvement of the crime vehicle, driving license of the rider and also contended that the compensation claimed by the claimants is very high and exorbitant and prayed to dismiss the petition. 4
07. Before the Tribunal, the petitioners got examined petitioner No.1 who is wife of the deceased as PW1, Doctor who treated the deceased as PW2 and Eyewitness to the accident as PW3 and got marked Exs.A1 to A7. On behalf of the respondents, no oral evidence was adduced and Ex.B1-Copy of Insurance Policy is marked.
08. Considering the claim of the claimants and counter filed by respondent No.2 and on evaluation of oral and documentary evidence, the Tribunal dismissed the Motor Vehicle Original Petition.
09. Challenging the same, the claimants have filed this Motor Accident Civil Miscellaneous Appeal.
10. Heard the learned counsel appearing on behalf of appellants and the learned Standing Counsel appearing on behalf of Insurance Company-respondent No.2. Even after service of notice, there is no representation on behalf of respondent No.1. Therefore, the submissions of respondent No.1 are treated as heard. Perused the material available on record.
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11. The main contention of the learned counsel for appellants-claimants is that though the claimants have proved the case by adducing cogent and convincing evidence and also relying on relevant documents, but the Tribunal without considering the same properly, dismissed the claim application of the claimants. Hence, he prayed to allow this Motor Accident Civil Miscellaneous Appeal.
12. On the other hand, the learned Standing Counsel for respondent No.2-Insurance company has contended that the learned Tribunal has rightly dismissed the claim application after taking into consideration entire evidence and the same needs no interference by this Court.
13. Now the point for consideration is:
Whether the dismissal Order dated 31.07.2017 passed in Motor Vehicle Original Petition No.890 of 2013 by the learned Tribunal, is liable to be set aside?
14. This Court has perused the entire evidence and documents available on record.
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15. Petitioner No.1 who is wife of the deceased is examined as PW1 reiterated the contents of the claim application and got marked Ex.A1 to A7 as she is not eyewitness to the said accident, hence she got examined PW3 who is eyewitness to the accident, deposed that he is running a hotel at Eenadu Office at Suryapet Town and on 02.09.2013 at about 03:30 PM., he was standing in front of his hotel and at that time one Hero Honda Motorcycle bearing No. AP 24 AQ 6672 was proceeding to Suryapet Town, the rider of the said motor cycle was riding the said motorcycle in normal speed on extremely left side of the road by observing traffic rules, in the meantime one Hero Honda Motorcycle bearing No. AP 24 AH 2829 came in opposite direction from Suryapet Town to Durjupally side at high speed in a rash and negligent manner and dashed Hero Honda Motorcycle bearing No. AP 24 AQ 6672 due to which the rider of the motorcycle sustained bleeding injuries and grievous head injury and bleeding from ear and nose, fracture of right side ribs, grievous injury chest and abdomen and other multiple injuries all over the body. 7
16. During the course of cross-examination of PW1 and PW3, nothing was elicited to disbelieve their evidence.
17. PW2 is the Doctor who treated the deceased deposed that he worked as General Physician at Krishnaveni Multispeciality Hospital, Hayathnagar and that the deceased was brought to their hospital with unconscious state met with Road Traffic Accident on 02.09.2013 and was admitted, he examined and found deep lacerated injury to right side of the head over the eye, right side of head, right side of the shoulder and chest. He had bleeding ear and nose. On investigation, diagnosed multiple fracture of right frontal bone, multiple ribs fracture of right side. He was treated by Neuro Surgeon, Chest Physician, Cardiologist and General and ENT Surgeons. While undergoing treatment, he succumbed on 14.09.2013 due to cardiac arrest. The claimants incurred medical expenses of Rs.2,85,422/- and Ex.A6-Discharge death summary and Ex.A7-Final bills were marked through this witness. During the course of cross- examination, PW2 stated that this case is being MLC case so that they informed to local Police, but they do not know 8 whether the local Police have taken any action or not. This witness denied other suggestions.
18. It is pertinent to state that the petitioners have also relied upon Ex.A1 to A7. As regards the manner of accident is concerned, the evidence of PW3-Eyewitness to the accident, coupled with the documentary evidence available on record i.e., Ex.A1-FIR discloses that after the accident, based on a complaint, a case in Crime No.319 of 2013 was registered by Police, Suryapet Town for the offence under Section 337 of the Indian Penal Code against the rider of Hero Honda Motorcycle bearing No.AP 24 AH 2829 and later section of law was altered to Section 304-A and 337 of the Indian Penal Code and after completion of investigation Ex.A5-Charge sheet was filed against the rider of Hero Honda Motorcycle bearing No.AP 24 AH 2829. Ex.A2-Inquest report discloses that the deceased died in the road traffic accident, Ex.A3-Postmortem Examination Report discloses the cause of death is 'head injury'. Ex.A6- Death summary issued by Krishnaveni Hospital at Hayathnagar discloses that the deceased sustained deep lacerated injury to right side of the head over the eye, right 9 side of head, right side of the shoulder and chest and ear and nose were bleeding and multiple fracture of right frontal bone, multiple ribs fracture of right side and the deceased succumbed to the said injuries on 14.09.2013. Therefore, there is no dispute regarding the accident and the fatal injuries sustained by the deceased in the accident. The Police after thorough investigation filed charge sheet against the rider of Hero Honda Motorcycle bearing No.AP 24 AH 2829. However, the learned Tribunal merely relied on the delay occurred in filing FIR and dismiss the claim application.
19. It is pertinent to state that rule of evidence to prove charges in a criminal trial, cannot be used while dealing with an application filed under Section 166 of the Motor Vehicle Act, which is a summary in nature and it is beneficiary legislation. Admittedly, immediately after accident the deceased was shifted to hospital for treatment and has been struggling for life. Therefore, it is obvious for the family members to provide immediate treatment rather than giving complaint to the Police. Therefore, this Court is of the considered opinion that the Tribunal has erred in 10 dismissing the claim application merely on the ground of delay in FIR without considering the said aspect.
20. In view of the above discussion, the dismissal Order dated 31.07.2017 passed in Motor Vehicle Original Petition No.890 of 2013 by the learned Tribunal is liable to be set aside.
21. Now coming to the quantum of compensation, as per claimants the deceased used to work as Electrician and used to attend agriculture work and earning Rs.10,000/- per month. However, the petitioners have not filed any documentary proof and neither examined any person to prove the monthly income of the deceased. Hence, considering the avocation of the deceased, this Court is inclined to fix the annual income of the deceased at Rs.6,000/- (Rs.6,000x12) which comes to Rs.72,000/-. In view of the decision of the Honourable Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others 1 40% towards future prospects can duly be added 1 2017 ACJ 2700 11 thereto. Thus, the annual income of the deceased comes to Rs.1,00,800/- (Rs.72,000/- + Rs.28,800/- being 40% towards future prospects). Since there are three dependents, after deducting 1/3rd (Rs.33,600/-) towards personal expenses of the deceased, as per the decision of the Honourable Apex Court in Smt. Sarla Varma v. Delhi Transport Corporation and another 2, the net annual contribution to the family comes to Rs.67,200/-.
22. As seen from the evidence, the deceased was 35 years at the time of fatal accident. Therefore, as per the decision of the Honourable Apex Court in Smt. Sarla Varma (supra), the appropriate multiplier is '14'. Thus, applying the multiplier '14' to the annual loss of dependency, which is already arrived at Rs.67,200/-, the total loss of dependency comes to Rs.09,40,800/- (Rs.67,200/- x 14). In addition to that, the petitioners are entitled to Rs.70,000/- under the conventional heads. The petitioners are also entitled for the medical expenses of Rs.2,85,400/-. Thus, in all, the petitioners are entitled to compensation of Rs.12,96,200/-.
2 2009 (6) SCC 121 12
23. Accordingly, this Motor Accident Civil Miscellaneous Appeal is allowed setting aside the dismissal Order dated 31.07.2017 passed in Motor Vehicle Original Petition No.890 of 2013 by the learned Tribunal. An amount of Rs.12,96,200/- (Rupees Twelve Lakhs Ninety Six Thousand Two Hundred only) is granted towards compensation to the appellants. The compensation amount shall carry interest at the rate of 7.5% per annum from the date of petition till the date of realization to be payable by respondent Nos.1 to 2 jointly and severally. Respondent Nos.1 and 2 are directed to deposit the compensation amount to the credit of Motor Vehicle Original Petition along with accrued interest within a period of two months from the date of receipt of copy of this Judgment as both of them are jointly and severally liable. On such deposit, the appellants-petitioners are permitted to withdraw the entire amount. The compensation amount shall be paid to the appellants-petitioners subject to payment of deficit Court fee. There shall be no order as to costs.
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As a sequel, the miscellaneous petitions, if any, pending shall stand closed.
________________________________ JUSTICE M.G.PRIYADARSINI Date: 23-JAN-2024 KHRM 14 104 THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No.412 of 2018 Date: 23-JAN-2024 KHRM