Telangana High Court
Bingi Sabitha vs A.Krishna on 5 July, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.251 OF 2019
AND
M.A.C.M.A.No.303 OF 2019
COMMON JUDGMENT:
1. These two appeals are being disposed of by this common judgment since M.A.C.M.A.No.251 of 2019, filed by the claimant seeking for enhancement of compensation and M.A.C.M.A.No.303 of 2019 filed by T.S.R.T.C., Musheerabad, challenging the compensation awarded, are directed against the very same order and decree, dated 04.07.2018 passed in M.V.O.P.No.671 of 2015 on the file of the Motor Accidents Tribunal-cum-I Additional District Judge, Nalgonda (for short, "the Tribunal").
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Tribunal.
3. The facts of the case, in brief, are that the claim petitioner, who is the wife of one Sri Bingi Prem Kumar (hereinafter be referred as "the deceased"), filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation of Rs.25,00,000/- for the death the deceased in a motor vehicle accident that occurred on 10.08.2015 at about 05.50 P.M. As stated by the petitioner, on 10.08.2015 at about 5.50 P.M, when the deceased-Prem Kumar was proceeding on his Pulsar 2 MGP,J MACMA.Nos.251 and 303 of 2019 Motorcycle bearing No.AP-24-T-1694 from Valigonda Village towards Guduru Village and when reached the outskirts of Nagireddypally Village, the driver of one TSRTC Bus Bearing No.AP-28-Z-6097, which was proceeding from Bhongir towards Nalgonda, drove the said RTC Bus in a rash and negligent manner at a high speed and dashed the deceased from opposite direction. As a result, the deceased fell down from the motor cycle, sustained head injury, fracture of right leg and other injuries all over the body and died on the spot. Based on a complaint, the Police of Bhongir Rural Police Station registered a case in Crime No.156 of 2015 under Section 304-A IPC against the driver of the offending RTC Bus Bearing No.AP-28Z-6097. It is stated by the petitioner that the deceased was aged 30 years and was hale and healthy and working as Helper in MSN Organics Private Limited, Bibinagar and used to earn salary of Rs.20,000/- per month along with other allowances and was contributing his entire earnings for maintenance of his family. Due to sudden death of the deceased, the claimant lost her conjugal happiness and source of income and hence, filed claim petition against Respondent Nos.1 & 2, being the Driver and owner of the offending bus bearing No.AP-28Z-6097.
4. Before the Tribunal, Respondent No.1, who is the driver of the offending RTC Bus Bearing No.AP-28Z-6097 and Respondetn 3 MGP,J MACMA.Nos.251 and 303 of 2019 No.3, who is the mother of the deceased, were set exparte on 20.10.2016 and 01.05.2018 respectively.
5. Respondent No.2/Corporation, who is the owner of the offending RTC Bus, filed its counter denying the very occurrence of the accident which includes, involvement of offending bus, rash and negligent driving on part of its driver, death of the deceased in the accident and further denied that the petitioner and respondent No.3 are legal heirs of the deceased and that the accident occurred due to the negligence on part of the deceased only and further, stated that the compensation claimed is excess and exorbitant and hence, prayed to dismiss the claim against it.
6. Based on the pleadings made by both the parties, the learned Tribunal had framed the following issues:-
(i) Whether the deceased by name Bingi Prem Kumar died due to rash and negligent driving of driver of TSRTC Bus Bearing No.AP-28-Z-6097?
(ii) Whether the petitioner/claimant is entitled to compensation? If so, what amount and what relief?
(iii) To what relief?
7. Before the Tribunal, petitioner herself was examined as PW1 and also got examined PWs 2 & 3 and got marked Exs.A1 to A10 4 MGP,J MACMA.Nos.251 and 303 of 2019 on her behalf. On behalf of Respondent No.2/Corporation, the driver of the offending bus was examined as RW1.
8. After considering the entire oral and documentary evidence available on record, the learned Tribunal had awarded an amount of Rs.25,00,000/- towards compensation along with interest @
7.5% per annum from the date of petition till the date of realization payable by Respondent No.2 alone to the petitioner and Respondent No.3 as Respondent No.1 is a Driver working under Respondent No.2-Corporation. Challenging the same, the present appeals came to be filed by the Insurance Company and the claimant respectively.
9. Heard both sides and perused the entire material available on record.
10. The main contention raised by the learned counsel for the appellant in M.A.C.M.A.No.251 of 2019 is that though the learned Tribunal had arrived at the compensation amount @ Rs.29,31,000/-, but the learned Tribunal restricted the same to an amount of Rs.25,00,000/- only which is bad in law as per the decision reported in 2013(9) SCC 54 and hence prayed for enhancement of the compensation. It is also contended that the learned Tribunal ought to have awarded more amount towards 5 MGP,J MACMA.Nos.251 and 303 of 2019 Love and affection and ought to have granted interest @ 12% instead of 7.5%.
11. On the other hand, the contention raised by the learned Standing Counsel for respondent No.2/appellant in M.A.C.M.A.No.303 of 2019 is that the learned Tribunal failed to consider the insurer of the Two wheeler bearing No.AP-24AT-1694 as proper and necessary party to the claim petition and hence, the petition ought to have been dismissed for non-joinder of necessary parties and further contended that the learned Tribunal erred in awarding excess and exorbitant compensation without following the principles and procedure under MV Act.
12. Now the points that emerges for determination are,
(i). Whether the order passed by the learned Tribunal suffers from any irregularity?
(ii). Whether the appellant in MACMA.No.251 of 2019 is entitled for enhancement of compensation?
POINTS:-
13. It is pertinent to state that the claim petitioner, who is the wife of the deceased, was examined as PW1. She deposed that her husband was appointed through M/s.Jai Hanuman Enterprises, Bibinagar Village and used to work as loading and unloading worker in MSN Organics Private Limited, Bibinagar and used to earn salary of Rs.15,000/- along with Rs.5,000/- as allowances per 6 MGP,J MACMA.Nos.251 and 303 of 2019 month and used to contribute the same for maintenance of his family. She deposed that Respondent No.3 is her mother-in-law and she receives family pension of her deceased husband, as such, she is not willing to file claim petition for the death of his deceased- son.
14. PW2, who is an eye witness to the incident, filed an affidavit in lieu of his chief examination and deposed that on 10.08.2015, at about 5.15 PM, when he was travelling in RTC Yadagirigutta Depot bus bearing No.AP-28Z-6097 from Bhongir Town to Nagaram Village, on the way, when the said bus reached Nagireddypally Village at about 5.50PM, the driver of the said RTC Bus drove the same in a rash and negligent manner at high speed and dashed to a motor cycle which was coming in the opposite direction. As a result, the motorcyclist, who is none other than the deceased herein, sustained head injuries and other bleeding injuries all over his body and died on the spot. Immediately, after the accident, the driver of the bus escaped from the accident place and after the said accident, PW2, along with other passengers, got down from the said bus and informed the incident to the Bibinagar Police Station, who informed about the said incident to the relatives of the deceased, who reached the accident place and shifted the deceased to Government Area Hospital, Bhongir. Hence, the 7 MGP,J MACMA.Nos.251 and 303 of 2019 accident occurred due to rash and negligent driving of the driver of the RTC Bus Bearing No.AP-28Z-6097.
15. PW3, who is the Proprietor of Jai Hanuman Enterprises, which institution is engaged in supplying Contract Labour to various companies, deposed in his evidence that in the year 2014, they got the work of loading, unloading, gardening and housekeeping in the establishment of M.S.N.Organics Private Limited, Bibinagar, Nalgonda District and obtained license for the same. He stated that he deputed the deceased as contract labour in MSN Organics Private Limited and during his employment, he paid Rs.15,000/- as monthly salary to the deceased and Ex.A7 is the salary certificate issued to him. He also filed a joint undertaking between Hanuman Enterprises and MSN Organics regarding payment of salary according to Minimum Wages Act under Ex.A9 and also filed Service Certificate of the deceased issued by MSN Organics Company Private Limited under Ex.A10.
16. During the course of examination of PWs1 to 3, on behalf of them, Exs.A1 to A10 were marked. Ex.A1 is the FIR in Crime No.156 of 2015 registered by Police of Bhongir (R) Police Station, Nalgonda District for the offence under Section 304-A IPC. Ex.A2 is the inquest report and the opinion expressed by the panchayatdars is that the death of the deceased was due to the 8 MGP,J MACMA.Nos.251 and 303 of 2019 injuries sustained to him in the road accident. Ex.A3 is the post mortem examination report wherein, the cause of death was due to Head Injury. Ex.A4 is the scene of offence panchanama. Ex.A5 is the report of Motor Vehicle Inspector wherein, it is stated that the accident did not occur due to any mechanical defect in the vehicle. Ex.A6 is the charge sheet which states that the death of the deceased was due to rash and negligent driving of the driver of the RTC Bus bearing No.AP-28Z-6097 and hence, he committed offence under Section 304A IPC. Ex.A7 is the Salary Certificate issued by Jain Hanuman Enterprises certifying that they used to pay monthly salary of Rs.15,000/- to the deceased. Ex.A8 is the license issued to PW3 by Deputy Commissioner of Labour, Nalgonda. Ex.A9 is the Joint undertaking between PW3 and MSN Organics Private Limited. Ex.A10 is the Service Certificate of the deceased issued by MSN Organics Private Limited certifying that the deceased used to work as a loading and unloading worker. Though PWs 1 to 3 were put to cross-examination, nothing adverse was elicited from them.
17. Coming to the evidence of RW1, who is working as Driver of in the 2nd respondent-Corporation and who drove the alleged Bus bearing No.AP-28Z-6097, stated in his affidavit filed in lieu of chief examination that the deceased drove his motor cycle in a rash and 9 MGP,J MACMA.Nos.251 and 303 of 2019 negligent manner on wrong side and tried to hit the bus and in order to avoid head on collision, he drove the Bus totally to left side and in the meantime, the rider of the motor cycle lost control over his motorcycle and fell down and sustained severe head injury and died on the spot. During his cross-examination, he admitted that police registered a case against RTC bus and also stated that after accident, he was kept under suspension for a period of six months.
18. It is the contention of the learned Standing Counsel for appellant/RTC in MACMA.303 of 2019 that the learned Tribunal failed to consider the insurer of the Two wheeler bearing No.AP- 24AT-1694 as proper and necessary party to the claim petition and hence, the petition ought to have been dismissed for non-joinder of necessary parties. In this regard, it is pertinent to state that a perusal of FIR, charge sheet and evidence of eye-witness i.e., PW2 discloses that the deceased- Bingi Prem Kumar died due to the rash and negligent driving of the driver of the RTC Bus Bearing No.AP-28Z-6097. Therefore, the question of adding the insurer of the Two wheeler motorcycle as necessary party to the claim petition is unwarranted. Hence, the contention of the learned Standing Counsel for TSRTC that the claim petition is liable to be dismissed for non-joinder of insurer of motorcycle is unsustainable.
10
MGP,J MACMA.Nos.251 and 303 of 2019
19. Coming to the compensation awarded, the learned Tribunal, by taking into consideration Ex.A7-Salary Certificate, fixed the monthly income of the deceased as Rs.15,000/- per month and after addition of relevant future prospects as per the age of the deceased by relying upon the decision of the -Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1 and deducting 1/3rd amount towards personal expenses of the deceased and by applying relevant multiplier, arrived a total amount of Rs.28,56,000/- towards loss of dependency. In addition to this, the learned Tribunal had also granted Rs.5,000/- towards transport charges and an amount of Rs.70,000/- towards conventional heads (Rs.70,000/- + 10% enhancement thereon for every 3 years) which in total comes to Rs.29,31,000/-. But the learned Tribunal restricted the compensation amount to Rs.25,00,000/- only as the claim made by the petitioner is only for Rs.25,00,000/-. This Court, by relying upon the decision of the Hon'ble Supreme Court in Nagappa vs. Gurdayal Singh and others 2, is inclined to interfere with the said finding and hereby award the total compensation amount which was arrived at i.e., Rs.29,31,000/-. Except the said finding, the findings given by the learned Tribunal in all other aspects shall remain the same.
1 2017 ACJ 2700 2 (2003) 2 SCC 274 11 MGP,J MACMA.Nos.251 and 303 of 2019
20. Hence, M.A.C.M.A.No.303 of 2019 filed by the Insurance Company is dismissed and M.A.C.M.A.No.251 of 2019 filed by the claim petitioner is allowed by enhancing the compensation amount from Rs.25,00,000/- to Rs.29,31,000/- payable by Respondent No.2 within a period of two months from the date of receipt of a copy of this order. The enhanced amount shall carry interest @ 7.5% per annum. On such deposit, the appellant is entitled to withdraw the same as per the apportionment made by the learned Tribunal by paying the deficit Court fee on the enhanced amount of compensation. There shall be no order as to costs.
21. Miscellaneous applications, if any, pending shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI Dt.05.07.2024 ysk