Telangana High Court
Kurva Vidya Sagar vs P Ramulaiah on 11 March, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.1038 OF 2018
AND
M.A.C.M.A.No.1622 OF 2018
COMMON JUDGMENT:
1. These two appeals are being disposed of by this common judgment since M.A.C.M.A.No.1038 of 2018, filed by the owner of the crime vehicle challenging the compensation awarded and M.A.C.M.A.No.1622 of 2018 filed by claim petitioners seeking for enhancement of compensation, are directed against the very same order dated 24.01.2018 passed in M.V.O.P.No.826 of 2012 on the file of the Court of XI Additional Chief Judge, City Civil Court, Hyderabad.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the trial Court.
3. The facts of the case, in brief, are that the claim petitioners, who are wife and daughter of one Sri Ponnam Kumaraiah, (hereinafter referred to as "the deceased"), filed a petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.5,00,000/- for the death of the deceased, who died in a road accident that occurred on 21.06.2009 at about 05.00 PM, near Indira Nagar Bus Stop, Serilingampally, Cyberabad, Ranga Reddy District. As per the version of the 2 MGP,J MACMA.Nos.1038 and 1622 of 2018 petitioners, on 21.06.2009 at about 5.00 PM, when the deceased- Ponnam Kumaraiah was crossing the road at Indira Nagar Bus Stop, Serilingampally, the driver of Tata Safari Car bearing No.AP- 09-AA-7777 drove the vehicle in a rash and negligent manner and dashed the deceased. As a result, the deceased fell down on the road, received bleeding injuries on the head and other parts of the body. Immediately, he was shifted to Rajitha Hospital in '108' Ambulance for treatment and thereafter, he was shifted to residence and died on 04.07.2009. Based on a complaint, the Police, Raidurgam Police Station registered a case in Crime No.209 of 2009 under Section 337 IPC against the driver of One Tata Safari Bearing No.AP-9AA-7777 who drove the said vehicle in a rash and negligent manner and dashed the deceased, due to which he received bleeding injuries on head and other parts of body and was shifted to Rajitha Hospital in '108' Ambulance. Due to the sudden death of the deceased, the claimants have lost their bread winner, love and affection and were put to mental shock. Therefore, they filed a petition claiming compensation of Rs.5,00,000/- along with interest from Respondent Nos.1 & 2, who are the driver and owner of the crime vehicle i.e., Tata Safari Bearing No.AP-9AA-7777 which is involved in the accident. 3
MGP,J MACMA.Nos.1038 and 1622 of 2018
4. Before the trial Court, Respondent No.1, who is the driver of crime vehicle i.e., Tata Safari Bearing No.AP-9AA-7777, remained ex-parte. Respondent No.2, who is the owner of the crime vehicle filed his counter contending that the petitioners filed claim petition three years after occurrence of accident and that there was no document to show that the deceased had taken treatment in Rajitha Hospital and the discharge of deceased from Rajitha Hospital shows that the injuries are not serious and that the deceased died after a gap of 14 days from the date of accident which can be assumed that the deceased might have fallen in his house due to old age and died. It is further contended that the income alleged by the claim petitioners do not tally with the income mentioned in the ration card. He also contended that he is no way connected with the accident and the previous owner Sri B.Srinivas is connected with the said accident and that there is collusion between petitioners and respondent No.1 and hence, prayed to dismiss the claim petition against Respondent No.2.
5. Based on the above pleadings, the trial Court framed the following issues:-
(i) Whether the deceased died in the accident on 21.06.2009 due to the rash and negligent driving of the driver of the Tata Safari Vehicle bearing NO.AP-09-AA-
7777?
4
MGP,J MACMA.Nos.1038 and 1622 of 2018
(ii) Whether the petitioners are entitled to the compensation. If so, to what extent and from whom?
(iii) To what relief?
6. Petitioner No.1 was examined herself as PW1 and got examined PW2, who is an eye witness to the incident and also examined PW3, who is Senior Assistant in Joint Transport Commissioner Office, RTA, Hyderabad and got marked Exs.A1 to A6 and Exs.X1 to X3 on their behalf. Respondent NO.2 himself was examined as RW1 and got marked Ex.B1-Copy of ration card of the deceased.
7. After considering the claim petition, counter filed by Respondent No.2 and the oral and documentary evidence available on record, the trial Court held that the accident occurred due to the rash and negligent driving of the crime vehicle i.e., Tata Safari Bearing No.AP-9AA-7777 and had awarded compensation to a tune of Rs.2,10,000/- along with interest @ 9% per annum payable by both the Respondent Nos.1 & 2 jointly and severally. Challenging the same, the present appeals came to be filed by the owner of the crime vehicle and the claimants respectively.
8. Heard both sides and perused the material available on record.
5
MGP,J MACMA.Nos.1038 and 1622 of 2018
9. The contentions made by the learned counsel for the appellant/Owner of crime vehicle in M.A.C.M.A.No.1038 of 2018 are that the claim petition was filed after three years of accident, there is no document to show that the deceased was admitted in Rajitha Hospital and had taken treatment and that the deceased died 14 days after the accident. Hence, death is not due to the injuries sustained to him. Further, petitioners never stayed within the jurisdiction of the trial Court. PW2, who is an eye witness to the accident, was not arrayed as witness in the charge sheet and that there was no whisper about the documents of vehicle and seizure of vehicle by police and hence, prayed to set-aside the order of the learned Trial Court.
10. On the other hand, the contention of the learned Counsel for the claim petitioners is that the trial Court erred in taking the income of the deceased as Rs.2,500/- and that the multiplier applied by the Court is not correct and hence, prayed to enhance the compensation awarded by the trial Court.
11. Now the points that emerges for determination are,
1. Whether the order passed by the trial Court suffers from any irregularity?
2. Whether the appellants/claim petitioners are entitled for enhancement of compensation?
6
MGP,J MACMA.Nos.1038 and 1622 of 2018 POINTS:-
12. This Court has perused the entire evidence and documents available on record. Petitioner No.1, who is the wife of the deceased, was examined as PW1 and reiterated the contents of the claim petition. As she is not an eye witness to the incident, she got examined PW2, who is an eye witness to the incident and who deposed that on 21.06.2009 at about 5.00PM, when he is waiting at Indranagar Bus Stop, Serlingampally to go to Raidurgam, after completion of his painting work at Indranagar, at that time, one Tata Safari Car bearing No.AP-09-AA-7777 came from Lingampally proceeding towards Mehdipatnam with high speed in a rash and negligent manner and dashed the pedestrian who was crossing the road slowly. Due to which, the pedestrian fell down on the road and received head injury apart from fracture injuries.
Immediately, he was shifted to nearby Hospital in a 108 Ambulance and the Police, Raidurgam, recorded his statement. The above evidence makes it clear that the accident occurred due to the rash and negligent driving of the driver of the Tata Safari Car bearing NO.AP-09-AA-7777 which resulted in death of the deceased. In the cross-examination, he stated that he do not know whether he was shown as a witness in the charge sheet and he is not acquainted with the deceased prior to the accident. He denied the suggestion that he is not witness to the accident and his 7 MGP,J MACMA.Nos.1038 and 1622 of 2018 statement was not recorded by Police and that he is deposing false. The appellants also examined PW3, who is Senior Assistant in Joint Transport Commission Office, RTA, Hyderabad and got marked Exs.A1 to A6 and Exs.X1 to X3 on her behalf. Ex.A1- Certified copy of FIR shows that Police, Raidurgam Police Station, registered a case in Crime No.209 of 2009 under Section 337 IPC against the driver of the Tata Safari Car bearing No.AP-09-AA-7777 and conducted investigation and laid Ex.A2-Charge sheet against the driver of the said Scorpio vehicle bearing No.AP 09 BN 8424 for his rash and negligent driving which resulted in the accident and thereby death of the deceased. Ex.A3 is the Certified copy of case diary, Ex.A4 is the certified copy of CDF, Ex.A5 is the certified copy of inquest report, Ex.A6 is the certified copy of Post mortem examination report, Ex.X1 is the letter issued by Public Information Officer, Ex.X2 is the letter of Assistant Secretary, RTA, Hyderabad, addressed to PIO, RTA, Hyderabad and Ex.X3 is the office copy of letter dated 28.08.2015.
13. The first and foremost contention raised by the learned counsel for the appellant is that the claim petition is filed belatedly i.e., three years after the accident. In this regard, it is pertinent to refer Para 15 of the judgment of the trial Court, wherein it is held that as the petitioners are not affluent to have knowledge about the 8 MGP,J MACMA.Nos.1038 and 1622 of 2018 procedural laws, they have not filed claim petition within time. The reason stated so is considerable and this Court do not find any reason to interfere with the same so far as this aspect is concerned.
14. It is also the contention of the learned counsel for the appellant that the petitioners had not filed any document to show that the deceased was admitted in Rajitha Hospital and that the death has occurred 14 days after the accident and therefore, the deceased had not died due to the injuries sustained to him in the accident.
15. In this regard, it is pertinent to refer Exs.A1 & A2, which are FIR and Charge sheet wherein it is clearly mentioned that after the accident, the deceased was immediately shifted to Rajitha Hospital in '108' Ambulance for treatment and from there, he was referred to Osmania General Hospital for further treatment and was discharged from the Hospital on 30.06.2009 and later expired on 04.07.2009 at his house. Further, a perusal of the inquest report under Ex.A5 shows that the deceased met with motor vehicle accident on 21.06.2009 and succumbed to injuries on 04.07.2009 and further, Ex.A6-Post Mortem Examination report also shows the cause of death is due to Head and pelvic injuries. Therefore, from the above, it is clear that the deceased died due to the injuries 9 MGP,J MACMA.Nos.1038 and 1622 of 2018 sustained by him in a road traffic accident and he suffered for 14 days due to the said injuries and later succumbed to injuries. Therefore, the contention of the learned counsel for the appellant that there is no nexus between the injuries sustained and death of the deceased is unsustainable.
16. The other contention made by the learned counsel for the appellant is with regard to jurisdiction. In this regard it is pertinent to note that the Hon'ble Supreme Court in PRAMOD SINHA VS.SURESH SINGH CHAUHAN & ORS 1 had held that it is not mandatory for the claimants to lodge an application for compensation under Section 166 of the Motor Vehicles Act before the MACT having jurisdiction over the area where the accident occurred. Claimants can approach the MACT within the local limits of whose jurisdiction they reside or carry on business or the defendant resides. Hence, the contention of the learned counsel for the appellant is unsustainable so far as Jurisdictional aspect is concerned.
17. The other contention made by the learned counsel for the appellant is that PW2 is a planted witness as he was not shown as witness in the charge sheet. In this regard, it is pertinent to mention that as per the decision of the Hon'ble Supreme Court in 1 2023 Live Law (SC) 596 10 MGP,J MACMA.Nos.1038 and 1622 of 2018 Sunita Vs.Rajasthan State Road Transportation 2 ,the Hon'ble Apex Court at Para 28 of the Judgment held as under:-
"...there is nothing in the Act to preclude citing of a witness in Motor Accidents Claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross-examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in the cross-examination, for which opportunity was granted to the respondents by the Trial Court."
18. In the present case, the appellant was granted ample opportunity to cross-examine PW2. Hence, the contention of the learned counsel for the appellant in this regard is unsustainable.
19. It is also the contention of the learned counsel for the appellant that PW3 appeared before the Court as witness without any authorization or witness summons from the Court and gave evidence and hence, his evidence cannot be considered. In this regard, it is pertinent to refer the evidence of PW3, wherein he deposed that he is working as Senior Assistant in Joint Transport Commissioner and Secretary Office, RTA, Hyderabad and having received summons from the Court, he appeared before the Court and giving evidence as per the office records and got marked Ex.X1, letter issued by Public Information Officer, O/o.Joint 2 AIR 2019 Supreme Court 994 11 MGP,J MACMA.Nos.1038 and 1622 of 2018 Transport Commissioner and Secretary, RTA, Hyderabad, Ex.X2 is the letter of Assistant Secretary, RTA, Hyderabad addressed to PIO, RTA Hyderabad. A perusal of the Exhibits shows that the crime vehicle was in the name of Sri Kurra Vidya Sagar, appellant herein, as on the date of accident and the said Exhibits were issued by RTA, Hyderabad and as PW3 is working under it, he is representing on behalf of RTI and had produce the said letters which were marked as exhibits before the Court. Therefore, the contention made by the learned counsel for the appellant that PW3 did not file any letter from Regional Transport Authority to depose as a witness is unsustainable. Moreover, a perusal of Ex.X2 shows that the appellant herein is the owner of the crime vehicle in question.
20. This Court relies upon the decision reported in National Insurance Co. Ltd Vs.Shaik Yousuf Bee & others 3 , wherein, the Hon'ble Apex Court at Para 9 of the Judgment held as under:-
"Here it requires to be noticed is that the occurrence of accident and the involvement of the offending vehicle in a claim case under Section 166 of the Motor Vehicle Act need not be established by the claimants beyond reasonable doubt as is required for proof of the guilt of the accused in a criminal case by the prosecution. It is enough for the claimants to establish the involvement of the vehicle basing on preponderance of 3 AIROnline 2012 AP 61 12 MGP,J MACMA.Nos.1038 and 1622 of 2018 probabilities. Moreover, a summary procedure is contemplated for the Trial Courts constituted under the Motor Vehicles Act to be followed in the enquiries in claim cases arising under the Motor Vehicles Act. The evidence let in should be summary in nature and the Trial Court need not follow the strict rules of evidence and it can adopt it's own procedure for conducting enquiries into the claims."
21. This Court also relies upon a decision reported in Janabai Vs. ICICI Lambord Insurance 4, wherein, it is held as under:-
"10. We find that the rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Section 166 of the Motor Vehicles Act, 1988 which is summary in nature. There is no reason to doubt the veracity of the statement of appellant No. 1 who suffered injuries in the accident. The application under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial. We find that the entire approach of the High Court is clearly not sustainable."
22. In the present case, there is no reason to show as to why the claim petitioners would file a case on false grounds. As the petitioners have lost their bread earner and it is becoming difficult to eke out their livelihood, they filed the claim petition seeking compensation.
23. Learned counsel for the appellant has also argued that the evidence of PW2 was recorded after reopening the case which is 4 2022(5)ALD76SC 13 MGP,J MACMA.Nos.1038 and 1622 of 2018 against the principles of order XVIII Rule 17 CPC. This Court has perused the evidence of PW2 wherein the cross-examination of PW2 was deferred by Respondent No.2. Therefore, on the next date of hearing PW2 was recalled for cross-examination by respondent No.2 which does not mean that his evidence was completed and the matter was reopened again for cross-examining him. Therefore, the contention of the learned counsel for the appellant that the matter was reopened and PW2 was recalled for cross-examination is held to be not true.
24. This Court, upon perusal of the documents available on record, found that the crime vehicle has no valid Insurance policy and further, the driver is not having valid driving license at the time of accident and knowing the same, the owner of the vehicle i.e., the appellant herein, has handed over the vehicle to him and caused accident. According to Motor Vehicle Act 2019, it is mandatory for a vehicle owner to drive the vehicle with an insurance policy. Here, in this case, appellant had violated the terms and conditions of Motor Vehicle Act. Based on the said ground, the appeal is liable to be dismissed.
25. Coming to the aspect of compensation awarded, it is the contention of the learned counsel for the appellants/claim petitioners in MACMA.1622 of 2018 that though the deceased used 14 MGP,J MACMA.Nos.1038 and 1622 of 2018 to earn Rs,.10,000/- per month, but the learned Trial Court had taken the income of the deceased @ Rs.2,500/- per month. In this regard, it is pertinent to mention that as the claim petitioners failed to produce documentary proof showing the monthly income of the deceased as Rs.10,000/-, the trial Court, by considering the age of the deceased and inflation in the economy of the country, fixed the monthly income of the deceased as Rs.2,500/-. As the accident is of the year 2009, this Court is of the view that the amount taken by the trial Court is considerable and hence, is not inclined to interfere with the same. The other contention made by the learned counsel for the claim petitioners is that the learned trial Court erred in applying appropriate multiplier. As per the decision of Sarla Varma v. Delhi Transport Corporation and another 5, the appropriate multiplier for the age of the deceased being '65' years is "7". The trial Court had applied the same and awarded compensation of Rs.2,10,000/- payable by Respondents 1 & 2. This Court do not find any reason to interfere with the said finding which is in proper perspective.
26. As far as interest is concerned, the learned Trial Court granted interest @ 9% per annum for which this Court is inclined to interfere with the same by relying upon the decision of the Hon'ble Apex Court in Rajesh and others v. Rajbir Singh and 5 2009 (6) SCC 121 15 MGP,J MACMA.Nos.1038 and 1622 of 2018 others 6, and hereby reduces the interest granted by the trial Court from 9% per annum to 7.5% per annum. Except the said finding, the findings given by the learned Trial Court in other aspects shall remain the same.
27. Accordingly, M.A.C.M.A.No.1038 of 2018 filed by Respondent No.2 in M.V.O.P./owner of the vehicle is partly allowed by reducing the rate of interest granted by the Trial Court from 9 % to 7.5% and M.A.C.M.A.No.1622 of 2018 filed by claim petitioners, is dismissed. There shall be no order as to costs.
28. Miscellaneous applications, if any, pending shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI Dt.11.03.2024 ysk 6 2013 ACJ 1403 = 2013 (4) ALT 35