Telangana High Court
K. Govindamma vs Gudur Anil Kumar Reddy on 24 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No.1739 of 2018 J U D G M E N T:
Dissatisfied and aggrieved with the dismissal Order dated 14.02.2018 passed in Motor Vehicle Original Petition No.1504 of 2014 by the learned Chairman, Motor Vehicle Accident Claims Tribunal-cum-Chief Judge, City Civil Courts, Hyderabad (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 petitioner Nos.1 to 3 filed a petition under Section 166 of the Motor Vehicle Act, who are parents and brother of Sri K. Teja Murthy (hereinafter referred to as 'the deceased'), claiming compensation of Rs.20,00,000/- with interest on account of death of the deceased in a Motor Vehicle Accident that occurred on 23.01.2014.
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04. According to the petitioners, on 23.01.2014, the deceased and his cousin by name K. Sudhakar were standing by the side of the road on ORR at APPA Junction and were waiting to cross the road, at that time, Car bearing No.AP 28 BP 4509 came in a rash and negligent manner with high speed and hit the deceased, as a result, he sustained fatal injuries and died on the way to Premier Hospital. Based on the complaint, the Police, Narsingi registered a case in Crime No.48 of 2014 for the offence under Section 304-A of Indian Penal Code. Petitioners who are parents and brother of the deceased claimed compensation of Rs 20,00,000/- along with interest.
05. Respondent No.1 remained exparte.
Respondent No.2 filed counter denying the averments of the claim petition and further denied age, income, manner of accident and further contended that there is no rash and negligence on the part of the car driver and accident occurred only due to negligence of the deceased and his cousin, who were trying to cross the express highway without following traffic rules, thus they contributed to the 3 accident. The claim of the petitioners is excessive and prayed to dismiss the claim of the petitioners against it.
06. Before the Tribunal, the petitioners got examined petitioner No.2 as PW1 and Eyewitness to the accident as PW2 and got marked Exs.A1 to A8. On behalf of the respondents, no oral evidence was adduced and Ex.B1-Copy of Insurance Policy is marked.
07. Based on the pleadings, the Tribunal framed the following issues:
i. Whether the pleaded accident had occurred resulting in death of the deceased due to the rash and negligent driving of car bearing No. AP 28 BP 4509 by its driver?
ii. Whether the petitioners are entitled to any compensation, and if so, at what quantum and what is the liability of the respondents?
iii. To what relief?
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.
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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. Perused the material available on record.
11. The main contention of the learned counsel for appellants-petitioners is that though the petitioners 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 petitioners. Hence, he prayed to allow this Motor Accident Civil Miscellaneous Appeal by setting the impugned Judgment and decree passed by the Tribunal.
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. 5
13. Now the point for consideration is:
Whether the dismissal Order dated 14.02.2018 passed in Motor Vehicle Original Petition No.1504 of 2014 by the learned Chairman, Motor Vehicle Accident Claims Tribunal-cum-Chief Judge, City Civil Courts, Hyderabad, is liable to be set aside?
P O I N T:
14. This Court has perused the entire evidence and documents available on record.
15. Petitioner No.2 who is father of the deceased is examined as PW1 reiterated the contents of the claim application and he is not eyewitness to the said accident, hence he got examined PW2 who is eyewitness to the accident who deposed that on 23.01.2014, he and his nephew (deceased) were standing by the side of the road on ORR at APPA Junction and waiting for a lift, at that time a Car bearing No.AP 28 BP 4509 came in a rash and negligent manner with high speed and hit his nephew, as a result, he sustained multiple grievous injuries and died on the way to hospital. During the cross-examination, he stated that he does not know whether his name was added in the charge sheet and it was suggested that as there was 6 no walking path they trespassed and that they were not supposed to stand at that place and also suggested that willfully charge sheet is not filed as there was negligence on the part of the deceased. Petitioners apart from oral evidence, got marked Exs.A1 to A8. A perusal of Ex.A1-FIR disclosed that based on a complaint the Police, Narsingi registered a case in Crime No.48 of 2014 for the offence under Section 304-A of the Indian Penal Code and took up investigation. Ex.A2-Inquest report shows that the panchas have opined that while the deceased and one Sudhakar were standing at APPA Junction, a Car bearing No. AP 28 BP 4509 came in a rash and negligent manner with high speed and hit the deceased, due which he sustained severe injuries and died while being shifted to the hospital. Ex.A3-Postmortem Examination Report shows that the cause of death is due to multiple injuries.
16. It is pertinent to state that the learned Tribunal has dismissed the claim of the petitioners on the ground that charge sheet was not filed and further without verifying the charge sheet the Court cannot say whether 7 the name of PW2 was shown as eyewitness to the accident or not.
17. It is pertinent to state that non-exhibition of document does not disentitles the claim of the petitioners, where sufficient evidence was adduced and further the name of Sudhakar was reflecting as one of the panch witnesses in Ex.A2-Inquest report. Under these circumstances, the question of reflecting his name as eyewitness in the charge sheet to the occurrence need not be given much importance. Furthermore, there is no dispute regarding occurrence of accident, death of the deceased in the said accident and the petitioners have examined eyewitness and thereby discharged their initial burden to prove their case. On the other hand, respondent No.2-Insurnace company has not examined any witness to rebut the petitioners' evidence. The Insurance company could have adduced evidence by examining the driver of the offending vehicle as their witness, or even otherwise they would have filed copy of charge sheet before the trial 8 Court. The Honourable Supreme Court of India in Vimla Devi v. National Insurance Co. Ltd., 1 held that:
"Non-exhibition of documents i.e. a procedural lapse does not disentitle a claim, when otherwise sufficient evidence is adduced and documents established the identity of the offending vehicle."
18. In view of the above discussion and settled principle of law laid down by Honourable Supreme Court, this Court is of the considered opinion that the petitioners have proved their case that the accident occurred due to rash and negligence of driver of Car bearing No.AP 28 BP 4509 and they are entitled for compensation. Therefore, the learned Tribunal has erred in dismissing the claim application without considering the said aspect, and the dismissal Order dated 14.02.2018 passed in Motor Vehicle Original Petition No.1504 of 2014 by the learned Tribunal, is liable to be set aside.
19. Now coming to the compensation as per petitioners, the deceased was working as Security Guard and earning Rs.15,000/- per month. The petitioners have filed Ex.A8-Salary certificate of the deceased 1 (2019) 2 SCC 186 9 and they have also filed educational qualifications certificate under Exs.A4, A5 and A6. They also filed Ex.A7 pan card of the deceased. Though they filed Ex.A8-Salary certificate before the learned Tribunal, they failed to prove the same by examining the author of the document. Mere filing of the document without proving the same cannot be completely taken into consideration. However, considering the educational qualifications of the deceased, this Court is inclined to fix the annual income of the deceased at Rs.7,000/- (Rs.7,000x12) which comes to Rs.84,000/-. In view of the decision of the Honourable Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others 2 40% i.e., Rs.33,600/- towards future prospects can duly be added thereto. Thus, the annual income of the deceased comes to Rs.1,17,600/- (Rs.84,000/- + Rs.33,600/- being 40% towards future prospects). Since the deceased was bachelor, after deducting half of the annual income (Rs.58,800/-) towards personal expenses of the deceased, 2 2017 ACJ 2700 10 as per the decision of the Honourable Apex Court in Smt. Sarla Varma v. Delhi Transport Corporation and another 3, the net annual contribution to the family comes to Rs.58,800/-.
20. As seen from the evidence, the deceased was 28 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 '17'. Thus, applying the multiplier '17' to the annual loss of dependency, which is already arrived at Rs.58,800/-, the total loss of dependency comes to Rs.9,99,600/- (Rs.58,800/- x 17). In addition to that, the petitioners are entitled to Rs.33,000/- under the conventional heads (Rs.30,000/- + 10% enhancement thereon). Thus, in all, the petitioners are entitled to compensation of Rs.10,32,600/-.
21. Accordingly, this Motor Accident Civil Miscellaneous Appeal is allowed setting aside the dismissal Order dated 14.02.2018 passed in Motor Vehicle Original Petition No.1504 of 2014 by the learned Chairman, Motor 3 2009 (6) SCC 121 11 Vehicle Accident Claims Tribunal-cum-Chief Judge, City Civil Courts, Hyderabad. An amount of Rs.10,32,600/- (Rupees Ten Lakhs Thirty Two Thousand Six Hundred only) is granted towards compensation to the appellants- petitioners. 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. There shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending shall stand closed.
________________________________ JUSTICE M.G.PRIYADARSINI Date: 24-JAN-2024 KHRM