Telangana High Court
K. Gobriya Naik , Govind vs Sri O.Pentaiah And Anr on 2 April, 2025
THE HON'BLE SMT.JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.3988 OF 2012
JUDGMENT:
1. Aggrieved by the dismissal order passed by the Court of XII Additional Chief Judge, City Civil Court, Hyderabad (Fast Track Court) in O.P.No.481 of 2003, dated 22.09.2005, the claim petitioner therein preferred the present Appeal seeking for grant of compensation.
2. For the sake of convenience, hereinafter, the parties are referred as per their array before the Trial Court.
3. The brief facts of the case are that the petitioner, who is the father of the deceased-Narayana @ Prem Sagar filed a petition under Section 166 read with Rule 455 of the Motor Vehicles Act claiming compensation of Rs.2,50,000/- for the death of his son in a motor vehicle accident that took place on the intervening night of 01/02-01-2003. It is stated by the petitioner that on the intervening night of 01/02-01-2003 at about 1.30 A.M., when the deceased proceeded on his motorcycle bearing No.AP-9-K-5962 from Ayodhya Hotel side towards Abids, one Auto Trolley bearing No.AP-28U-7822 came at high speed and dashed against the motorcycle of the deceased. As such, the deceased sustained grievous injuries. Immediately, he was shifted to Osmania General 2 MGP,J Macma.No.3988 of 2012 Hospital for treatment and while undergoing treatment, he succumbed to injuries on 02.01.2003 at 6.00 A.M.
4. Based on a complaint, Police of Saifabad Police Station registered a case in Crime No.6 of 2003, under Section 337 of IPC.
5. It is stated by the petitioner that as on the date of accident, his deceased son was aged 24 years and used to work as Server in Silver Oak Bar & Restaurant, Punjagutta and earn an amount of Rs.3,000/- per month towards his salary and contribute the same for maintenance of their family. Due to sudden demise of his deceased son, their family suffered mental agony, put to sudden shock and also lost their sole bread winner of the family. It is contended by the petitioner that as the alleged accident took place due to the rash and negligent driving of the driver of crime Auto Trolley bearing No.AP-28U-7822, as such, he filed claim petition against respondent Nos.1 & 2, who are the owner and insurer of the crime Auto Trolley bearing No.AP-28U-7822.
6. Before the Trial Court, respondent No.1/owner of crime Auto Trolley remained ex-parte.
7. Respondent No.2/Insurance Company filed its counter denying the averments made in the claim petition including, involvement of Auto Trolley in question and contended that the petitioner had not filed any document showing that the 1st 3 MGP,J Macma.No.3988 of 2012 respondent is the owner of crime Auto Trolley and that the said Auto Trolley is covered under valid insurance policy and further contended that the alleged accident occurred only due to rash and negligent driving on part of the deceased-Narayana, as such, they are not liable to pay compensation and therefore prayed to dismiss the claim against it.
8. Based on the pleadings made by both the parties, the learned Trial Court framed certain issues mentioned below for trial:
i. Whether the accident in question took place on 01/02- 01-2003 due to rash and negligent driving of the Auto Trolley bearing No.AP-28-U-7882 by its driver? ii. Whether the petitioner is entitled for compensation?
If so, to what amount and from whom?
iii. To what relief ?
9. In order to substantiate his case, the petitioner examined himself as PW1, got examined PW2 and also got marked Exs.A1 to A5 on his behalf. Respondent No.2/Insurance Company did not chose to adduce any oral evidence, however, got marked Ex.B1- copy of Insurance policy on their behalf.
10. Based on the evidence adduced and documents filed, the Trial Court dismissed the claim petition on the ground that as the petitioner failed to prove that the alleged accident took place due to rash and negligent driving of the driver of crime vehicle Auto Trolley, he is not entitled for any compensation amount. Aggrieved 4 MGP,J Macma.No.3988 of 2012 by the said finding, the petitioner therein preferred the present Appeal seeking grant of compensation.
11. Heard Smt.A.Chaya Devi, learned counsel for the appellant and Sri P.Bhanu Prakash, learned counsel for Respondent No.2/Insurance Company. Perused the record including the grounds of Appeal.
12. The contentions of the learned counsel for appellant as stated in the grounds of Appeal are that the learned Trial Court ought to have considered the fact that the documents filed by the petitioner show that there is involvement of crime Auto Trolley in the alleged accident; it also failed to consider the evidence of PW2 who supported the case of the petitioner; it also erred in holding that in the absence of charge sheet, there is no evidence to support the contention of the petitioner that the accident took place only due to the negligence on part of Auto Trolley and therefore prayed to allow the Appeal by awarding compensation.
13. On the other hand, learned Standing Counsel for respondent/Insurance Company contended that the learned Trial Court had rightly dismissed the claim petition as the petitioner failed to prove rash and negligence on part of driver of crime Auto Trolley, as such, he was not entitled for any compensation. The said finding do not require any interference of this Court. 5
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14. Now the point that arises for determination is, Whether the Trial Court has rightly dismissed the claim petition or warrants any interference by this Court? POINT:-
15. This Court has perused the entire evidence available on record. Since learned counsel for the appellant contended that the learned Trial Court failed to consider the fact that there is involvement of crime Auto Trolley in the alleged accident, this Court is inclined to delve into the said aspect for arriving at a right conclusion.
16. The contents of Ex.A1-FIR clearly discloses that on 01/02- 01-2003 at 1.45 hours, Sri M.A.Majeed Head Constable of Saifabad Police station gave a complaint stating that at 1.20 AM, one Auto bearing NO.AP-28-U-7572 came in a rash and negligent manner from Lakdikapool to Ayodhya cross-roads and dashed one Suzuki motorcycle bearing No.AP-9K-5962 in front of police station, Saifabad, due to which, the motorcycle rider and two pillion riders fell down on the road and received bleeding injuries and were shifted to Osmania General Hospital for treatment and the driver of the said Auto left the place leaving behind the Auto. Further, at serial No.7 of the FIR, the particulars/details of the accused were 6 MGP,J Macma.No.3988 of 2012 typed as "Driver of one goods trail mini Auto bearing No.AP-28U- 7822" .
17. In support of Ex.A1-FIR, there is an eye witness to the alleged incident who got examined as PW2. PW2, who is co- worker of the deceased, deposed in his evidence that on the night of 01.01.2003 after finishing their work in Silver Oak Bar & Restaurant Punjagutta Hyderabad, when they were proceeding to their hours on motorcycles and when reached in front of Ayodhya Hotel, Lakdikapool, one Auto-Trolley bearing No.AP-28U-7822 came at high speed in a rash and negligent manner and dashed the motorcycle of the deceased, As a result the deceased fell down and sustained grievous multiple injuries. Immediately, he along with other local people shifted the deceased to Osmania General Hospital and while undergoing treatment, the deceased succumbed to injuries on 02.01.2003 at about 6.00 A.M. The said accident took place due to rash and negligent driving of the driver of crime Auto-Trolley bearing No.AP-28-U-7822. Though PW2 was put to cross-examination, nothing adverse was elicited to disbelieve his testimony. Hence, from the above discussion, it is clear that the alleged accident occurred due to rash and negligent driving of the driver of crime Auto Trolley bearing No.AP-28-U-7822. 7
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18. Further, PW1 in his cross-examination denied the suggestion put to him that his son and two more persons were travelling on motorcycle on the wrong route of the road at the time of accident, as such, he is responsible for the accident. But the learned Trial Court inadvertently interpreted the said version as if he himself admitted that his son was proceeding in wrong route and held responsible for the accident.
19. The petitioner was able to prove the factum of accident, so also the factum of rash and negligent act of the driver causing the accident and also proved that the offending Auto was insured with respondent No.2 having valid insurance policy as on the date of accident. Insurance Company did not examine any witness to rebut the evidence adduced by the petitioner. Hence, this Court is of the considered opinion that the petitioner has discharged his initial burden of proving his case.
20. Now coming to the findings of the Trial Court which held that in the absence of charge sheet, there is no evidence to support the contention of the petitioner that the accident took place only due to the negligence on part of Auto Trolley, but in a recent judgment of the Hon'ble Supreme Court in Vimla Devi vs The National 8 MGP,J Macma.No.3988 of 2012 Insurance Company Limited 1 , it is held that FIR is enough to award compensation to accident victim or family after being satisfied with the following 7 reasons mentioned hereunder:-
"First, the appellants had adduced sufficient evidence to prove the accident and the rash and negligent driving of the driver of offending vehicle, which resulted into death of Rajendra Prasad.
Second, the appellants filed material documents to prove the factum of the accident and the persons involved therein.
Third, the documents clearly established the identity of the Truck involved in the accident, the identity of the driver driving the truck, the identity of the owner of the Truck, the name of the insurer of the offending truck, the period of coverage of insurance of the Truck, the details of lodging of FIR in the concerned police station in relation to the accident.
In our view, what more documents could be filed than the documents filed by the appellants to prove the factum of the accident and the persons involved therein.
Fourth, so far as the driver and owner of the Truck were concerned, both remained ex parte since inception and therefore, neither contested the appellants' claim petition nor entered into the witness box to rebut the allegations of the appellants made in the claim petition and the evidence. An adverse inference against both could be drawn.
Fifth, so far as the Insurance Company is concerned, they also did not examine any witness to rebut the appellants' evidence. The Insurance Company could have adduced evidence by 1 AIRONLINE 2018 SC 1369 9 MGP,J Macma.No.3988 of 2012 examining the driver of the offending Truck as their witness but it was not done.
Sixth, on the other hand, the appellants examined three witnesses and thereby discharge d their initial burden to prove the case.
Seventh, if the Court did not exhibit the documents despite the appellants referring them at the time of recording evidence, then in such event, the appellants cannot be denied of their right to claim compensation on such ground. In our opinion, it was nothing but a procedural lapse which could not be made basis to reject the claim petition. It was more so when the appellants adduced oral and documentary evidence to prove their case and the respondents did nothing to counter them.
In the light of the aforementioned seven reasons, we are of the considered opinion that the appellants were able to prove the factum of the accident so also the factum of rash and negligent act of the driver causing the accident. It is also proved that the offending Truck was insured with respondent No.1 at the time of accident and was owned by respondent No.3.
21. In the instant case, as the claim petitioner got satisfied all the points mentioned above, this Court, by relying upon the above said decision, deems fit and proper to award compensation to the petitioner.
22. Coming to the quantum of compensation, learned counsel for the petitioner submitted that the deceased used to work as Server in "Silver Oak Bar and Restaurant" and earn a sum of Rs.3,000/- per month. This Court, upon considering the same, hereby fix the income of the deceased @ Rs.3,000/- per month. Since the 10 MGP,J Macma.No.3988 of 2012 deceased was 24 years as stated by PW1 and also evident from Ex.A3-Post mortem report, this Court, by relying upon the judgment of the Hon'ble Apex Court in National Insurance Co.Ltd.Vs.Pranay Sethi 2 , hereby add 40% towards future prospects to the income of the deceased. Upon addition of the same the net monthly income of the deceased comes to Rs.4,200/-. Since the deceased being Bachelor, if 50% is deducted towards his personal expenses, then his net monthly income comes to Rs.2,100/- and the annual income comes to Rs.25,200/-. After applying multiplier '18', the total loss of dependency would come to Rs.4,53,600/-. Since there is no ground urged in the Appeal regarding conventional heads, this Court is not inclined to award the same.
23. As far as interest is concerned, this Court, by relying upon the decision of the Hon'ble Apex Court in Rajesh and others v. Rajbir Singh and others 3 hereby award interest @ 7.5% per annum on the compensation amount from the date of petition till the date of realization.
24. Coming to liability aspect, Ex.B1-Insurance policy clearly shows that respondent No.1 is the insured of Crime Auto Trolley bearing No.AP-28-U-7822 and respondent No.2 is the insurer and 2 (2017 (6) 170 SC) 3 2013 ACJ 1403 = 2013 (4) ALT 35 11 MGP,J Macma.No.3988 of 2012 the policy covers the date of accident. But as per the orders dated 15.11.2010 passed by this Court, the claim against respondent No.1 was dismissed for default. Therefore, respondent No.2 alone is liable for payment of compensation.
25. Since the compensation arrived is more than the claim amount, this Court by relying upon the decision of the Hon'ble Supreme Court in the case between Nagappa Vs.Gurudayal Singh and others 4 deems fit and proper to allow the Appeal.
26. In the result, the Appeal is allowed by setting aside the order of the learned Trial Court and the appellant is awarded with an amount of Rs.4,53,600/- compensation which shall carry interest @ 7.5% p.a. from the date of petition till the date of realization payable by respondent No.2 alone as claim against respondent No.1 was dismissed for default. The respondent No.2 is directed to deposit the compensation within a period of 2 months from the date of receipt of a copy of this judgment. Upon such deposit, the appellant/claimant is entitled to withdraw the same without furnishing any security by paying deficit Court fee. There shall be no order as to costs.
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AIR 2003 SC 674 12 MGP,J Macma.No.3988 of 2012
27. Miscellaneous petitions pending, if any, shall stand closed.
_______________________________ JUSTICE M.G. PRIYADARSINI Dt.02.04.2025 ysk 13 MGP,J Macma.No.3988 of 2012 HONOURABLE JUSTICE M. G. PRIYADARSINI M.A.C.M.A.No.3988 OF 2012 Dt.02.04.2025 ysk