Andhra Pradesh High Court - Amravati

Dintakurthi Naga Kamala And 3 ... vs B Srinivasulu And 2 Others on 21 March, 2022

            *HON'BLE SRI JUSTICE BATTU DEVANAND

                    + M.A.C.M.A.No.2971 OF 2018

% 21.03.2022

# Dintakurthi Naga Kamala, W/o Seshu Kumar,
  Aged about 37 years, R/o Kesarapalli Village,
  Gannavaram Mandal, Krishna District and others.
                                                ... Appellants.

      Vs.

$ B. Srinivasulu S/o Peddulu, aged about 38 years,
  R/o Domalapalli Village, Nalgonda Mandal & District
  and others.                                 .... Respondents.


! Counsel for the Appellants   : Sri Sai Gangadhar Chamarty

! Counsel for the Respondent : Sri N. Rama Krishna
   No.3.

< Gist:

> Head Note:

? Cases referred:

1
  AIR 2017 Supreme Court 1612
2
  AIR 1996 Supreme Court 2155
3
  (2021) 6 Supreme Court Cases 512
4
  (2009) 9 SCC 61
5
  (2019) 2 SCC 186
6
  2001(8) SCC 197
7
  2007(1) ALD 453
8
  2017 ACJ 2700 (SC)
9
  LL 2021 SC 531
                                 2




         DATE OF ORDER PRONOUNCED: 21.03.2022

        THE HON'BLE SRI JUSTICE BATTU DEVANAND


1. Whether Reporters of Local newspapers     Yes/No
   may be allowed to see the Judgments?

2. Whether the copies of judgment may be     Yes/No
   Marked to Law Reporters/Journals.

3. Whether Their Ladyship/Lordship wish      Yes/No
   to see the fair copy of the Judgment?




                            _______________________
                              JUSTICE BATTU DEVANAND
                                  3




      THE HON'BLE SRI JUSTICE BATTU DEVANAND

                   M.A.C.M.A.NO.2971 OF 2018

J U D G M E N T:

           Challenging     the   decree    and    award,    dated

20.07.2018    in    M.V.O.P.No.377   of   2014   passed    by   the

Chairman, Motor Accidents Claims Tribunal-cum-XIV Addl.

District Judge, Vijayawada (for short "the tribunal"), the

petitioners preferred this appeal.

2) The parties hereinafter called as petitioners and

respondents as arrayed in the Tribunal.

3) The factual matrix of the case of the petitioners is

that on 27.12.2006 at about 3-00 p.m., one D. Seshu Kumar

(hereinafter called as "Deceased") along with his wife and son

started on a motor cycle bearing No.A.P.16 AS 5856 from

Kesarapalli to Gannavaram to purchase a cake at Venus

Snacks Bakery. After purchasing cake, while returning to

home from Gannavaram to Kesarapalli and reached near

R.T.C. Academy, Gannavaram, one lorry bearing No.A.P.16W

8966 (hereinafter called as "offending vehicle") came in rash

and negligent manner at high speed, behind the motor cycle

of deceased and dashed the motor cycle, as a result, the

deceased, his wife and son fell on the road and the deceased

sustained multiple injuries and head injury. Immediately he

was shifted to Dr. Siddhardha Institute of Medical Sciences at

China Avutupalli Village wherein after examination of

deceased, the doctor declared the deceased as dead. The

doctor opined that the deceased died due to multiple injuries

and head injury.

4) The report of wife of deceased is registered as a

case in Crime No.317/2006 U/Sec.337, 304-A IPC on

27.12.2006. The 1st respondent is the driver of the offending

vehicle, the 2nd respondent is owner of the offending vehicle

having valid registration of offending vehicle and the 3rd

respondent is insurer of the offending vehicle, having

insurance policy in force as on the date of accident. They are

proper and necessary parties to pay compensation to the

petitioners.

5) The deceased is an agriculturist and having

departmental stores and getting income of Rs.15,000/- per

month and spending the entire amount for the welfare of the

family members. The deceased is aged about 29 years, hale

and healthy at the time of accident. He died leaving behind

his wife, son and parents. Hence, claiming compensation of

Rs.16,00,000/-.

6) The 1st respondent filed counter by denying the

averments of petition, while admitting that he is driver of the

offending vehicle, having valid driving license at the time of

accident. He contended that the injury sustained by the

deceased was only due to fall on the road and accident was

occurred due to negligence driving of the deceased without

following traffic rules, without giving any signal, etc., as such,

the accident was occurred not due to rash and negligent

driving of the 1st respondent.

7) The 1st respondent submitted that the offending

vehicle belongs to the 2nd respondent. He is only an employee

under 2nd respondent, as such, he is not liable to pay

compensation to the petitioners. The M.V. Inspector did not

express any different opinion regarding the cause of accident

in M.V.I. report. The insurance policy of the offending vehicle

was in force at the time of accident. Therefore, the insurer/3rd

respondent alone is liable to pay compensation as indemnifier

to the petitioners, if any payable to the petitioners. He

contended that the claim of the petitioners is excessive and

exorbitant and they are put to strict proof of the averments

regarding age, earning capacity of the deceased at the time of

accident. Hence, he requested to dismiss the claim petition.

8) The 2nd respondent remained exparte without filing

counter.

9) The 3rd respondent filed counter by denying the

averments of the petition and contending that the 3rd

respondent is not received any intimation about the accident

or any documents from the insured U/Sec.137(3) of Motor

Vehicles Act. He contended that the insurer and insured of the

motor cycle bearing No.A.P.16 AC 5856 are also proper and

necessary parties for proper adjudication of the matter as

accident was due to collision of the vehicles.

10) The 3rd respondent submitted that the deceased

had driven the motor cycle in a rash and negligent manner

without observing traffic rules by violating traffic rules like

triple riding, as such, the 3rd respondent is not liable to pay

compensation to the petitioners.

11) The 3rd respondent contended that the claim of

Rs.16,00,000/- is highly excessive and exorbitant and the

claim of the petitioners is time barred and the petition is not

maintainable under law. The Gannavaram police have not

forwarded relevant documents to the Insurance Company

within 30 days from the date of accident. The 1st respondent

is not having valid driving license and the offending vehicle

was not validly insured. There is no privity of contract

between the petitioners and the 3rd respondent, as such, it is

not liable to pay compensation to the petitioners. Hence, the

3rd respondent requested to dismiss the claim petition.

12) Basing on the strength of the above said pleadings,

the Tribunal framed the following issues:

(1) Whether the accident took place due to rash and negligent driving of Lorry bearing No.A.P.16 AW 8966 by the 1st respondent?

(2) Whether the petitioners are entitled to the compensation as prayed for? If so, from whom?

(3) To what Relief?

13) During the course of enquiry, the 1st petitioner got

examined herself as PW.1 and Exs.A.1 to A.9 are marked on

behalf of the petitioners. R.Ws.1 and 2 are examined and

Exs.B.1 and B.2 are marked on behalf of the Respondent

No.3.

14) Having considered the oral and documentary

evidence available on record, the Tribunal below answered the

issue No.1 in favour of the petitioners holding that the

petitioners are able to establish that the accident was occurred

due to rash and negligent driving of the 1st respondent. While

answering issue Nos.2 and 3, the Tribunal below held that the

petitioners failed to establish their entitlement to ask for

compensation from any of the respondents. Accordingly, the

Tribunal below dismissed the claim petition by its decree and

award, dated 20.07.2018. Aggrieved by the same, the

petitioners filed the present appeal.

15) Heard Sri Sai Gangadhar Chamarthy, learned

counsel appearing for the appellants and Sri N. Rama Krishna,

learned counsel for the Respondent/Insurance Company.

Perused the material available on record.

16) The learned counsel for the petitioners submitted

that the Tribunal below failed to consider the case of the

petitioners in correct perspective and in the light of the

principles laid down in decided cases. He contended that the

Tribunal below erred in interpreting Sub Section (2) of Section

166 of M.V. Act in the light of the fact that the accident took

place on 27.12.2006, after 1994 amendment wherein the

question of limitation would not arise. Learned counsel further

submitted that the Tribunal below ought not to have held that

there is no surveying claim and the petitioners are not entitled

to ask for the compensation from the Respondents. Finally,

the learned counsel sought to allow the appeal.

17) Learned counsel for the 3rd Respondent (i.e.) the

Oriental Insurance Company Limited submitted that the

Tribunal below passed the decree and award basing on the

evidence available on record, and as such, interference of this

Court is not required.

18) Having heard the submissions of the respective

counsel and upon perusal of the material available on record,

this Court noticed that it is an admitted fact that on

27.12.2006, on the unfortunate day, the deceased D. Seshu

Kumar while riding on a motor cycle along with his wife and so

sustained multiple injuries and head injury in accident caused

due to rash and negligent driving of the Lorry bearing

No.A.P.16 W 8966. The Tribunal below on appreciation of

evidence found that the accident occurred due to rash and

negligent driving of the 1st Respondent.

19) Admittedly, the offending vehicle is having valid

registration as on the date of the accident and also having the

valid insurance coverage as per the insurance policy, dated

01.07.2006, which was marked as Ex.B.1. But, the Tribunal

below considering the delay in filing the claim petition found

that there is no any survival claim to the petitioners.

20) Admittedly, the petitioners filed claim petition on

15.07.2014, though the accident was occurred on 20.12.2006.

The Tribunal below considering the judgment of the Hon‟ble

Apex Court in Purohit and Company vs. Khatoonbee and

others1 came to a conclusion that that in the claim petition

filed by the petitioners failed to establish that the claim of the

petitioners is live and surviving claim and filed within

reasonable time and accordingly, held that the petitioners are

not entitled to ask for compensation from the Respondents.

AIR 2017 Supreme Court 1612

21) It is to be noted that after 14.11.1994, in view of

the amendment to Section 166 of the Motor Vehicles Act,

there is no limitation to file claim petition. Prior to

14.11.1994, there was limitation prescribed to file claim

petitions. In the present case, admittedly, the accident

occurred on 27.12.2006, subsequent to 1994 amendment to

the Motor Vehicles Act, wherein there is no limitation to file

claim petition U/Sec.166 of the Motor Vehicles Act. Under

these circumstances, the Tribunal below having considered the

Motor Vehicles Act is a beneficial legislation enacted by the

Parliament for the benefit of the victims and their family

members, the Tribunal ought not to have considered the case

on technical grounds.

22) The 1st Petitioner is the wife of the deceased, the 2nd

Petitioner is minor son of the deceased and the Petitioners 3

and 4 are old aged parents of the deceased. After sudden

demise of the bread earner of the family, the family members

of the deceased, definitely, under shock for some days and to

come into normal life, some time is required. Moreover, the

petitioners may not have the knowledge of filing the claim

petition. They may not be in a position to get the particulars

of the vehicle, its driver and owner and policy of insurance.

Due to that reasons, the delay might be caused.

23) In fact, the Parliament with its wisdom deleted the

sub-section to Section 166 of the Motor Vehicles Act which

stipulates limitation to file the claim petition considering the

pathetic condition of the victims and their family members.

The intention of the Parliament is to entitle the victims and

their families to file claim petitions without any obstruction of

limitation period.

24) In our considered opinion, the Courts have to show

some liberal approach, while deciding the claim petitions filed

under Motor Vehicles Act, which is a beneficial legislation. The

Courts have to keep in mind that the victims and their

dependants have to come out from the hardships being faced

by them due to sudden demise of the bread earner of the

family, instead of rejecting the claims on technical grounds.

25) The opinion of this Court is fortified by the

observations made by the Hon‟ble Apex Court in Dhannalal v.

D.P. Vijayvargiya and others2 which are extracted

hereunder:

6. Before the scope of sub-section (3) of Section 166 of the Act is examined, it may be pointed out that the aforesaid sub-section (3) of Section 166 of the Act has been omitted by Section 53 of the Motor Vehicles (Amendment) Act, 1994 which came in force w.e.f. 14.11.1994. The effect of the Amending Act is that w.e.f. 14.11.1994 there is no limitation for filing claims

AIR 1996 Supreme Court 2155

before the Tribunal in respect of any accident. It can be said that Parliament realised the grave injustice and injury which was being caused to the heirs and legal representatives of the victims who died in accidents by rejecting their claim petitions only on ground of limitation. It is a matter of common knowledge that majority of the claimants for such compensation are ignorant about the period during which such claims should be preferred. After the death due to the accident, of the bread earner of the family, in many cases such claimants are virtually on the streets. Even in cases where the victims escape death some of such victims are hospitalized for months if not for years.

26) In Brahampal alias Sammay and another vs.

National Insurance Company3, the Hon‟ble Apex Court held

as extracted hereunder:

"The legislation intends to provide appropriate compensation for the victims and to protect their substantive rights, in pursuit of the same, the interpretation should not be as strict as commercial claims."

The Hon‟ble Apex Court at para Nos.6 and 7 of the

judgment opined as hereunder:

6. At the outset, we must note that Chapter XII of the Act is a beneficial legislation intended at protecting the rights of victims affected in road accidents. Moreover, the Act is a self-contained code and itself which provides procedures for filing claims, for passing of award and for preferring an appeal. Even the limitations for preferring the remedies are contained in the code itself.

(2021) 6 Supreme Court Cases 512

7. The interpretation of a beneficial legislation must be remedial and must be in furtherance with the purpose which the statue seeks to serve. The aforesaid view has been reiterated by this Court on multiple occasions wherein this Court has highlighted the importance acknowledging legislative intention while interpreting the provisions of the statue."

27) The Hon‟ble Apex in Bombay Anand Bhavan

Restaurant v. ESI Corporation4, while interpreting the

provisions of the Employees‟ State Insurance Act held that:

"It being a beneficial legislation who receive a liberal construction so as to promote its objects."

28) In Vimla Devi v. National Insurance Co. Ltd.,5

the Hon‟ble Apex Court while interpreting the provisions of the

Act held that strict compliance of procedures can be relaxed in

order to ensure that victims receive just compensation.

At para No.25, it is observed as extracted

hereunder:

"15. At the outset, we may reiterate as has been consistently said by this Court in a series of cases that the Act is a beneficial piece of legislation enacted to give solace to the victims of the motor accident who suffer bodily injury or die untimely. The Act is designed in a manner, which relieves the victims from ensuring strict compliance provided in law, which are otherwise applicable to the suits and other proceedings while prosecuting the claim petition filed under the Act for

(2009) 9 SCC 61

(2019) 2 SCC 186

claiming compensation for the loss sustained by them in the accident."

29) In view of the above discussions, we hold that, the

finding of the Tribunal below that the petitioners failed to

establish the claim is live and surviving claim is unsustainable

and untenable.

30) As per the material available on record, the

petitioners contended that the deceased was running General

Stores and also doing agricultural work. They filed Ex.A.8

(i.e.) certificate of registration in the name of the deceased.

It reveals that the deceased is the Proprietor of Sri Srinivasa

General Stores. Ex.A.8 and evidence of PW.1 is not disputed

with regard to occupation of deceased. The appellants herein

filed I.A.No.1 of 2021 seeking leave of this Court to file copy

of Return of Turnover tax (Quarterly) as additional evidence

on behalf of the appellants in this appeal. Considering the

reasons stated in the affidavit filed along with said

Interlocutory Application, this Court ordered I.A.No.1 of 2021.

31) On careful perusal of the return of turnover tax

(quarterly) filed in Form TOT 007 before the Commercial Tax

Office, Katuru Road, Vuyyuru on 31.10.2006 filed on behalf of

Srinivasa General Stores, the taxable turnover for the period

mentioned from 01.07.2006 to 30.09.2006 is Rs.1,24,960/-

and the turnover tax @ 10% i.e., Rs.1,250/- was paid vide

Challan No.7607, dated 31.10.2006, much prior to the date of

accident i.e., 27.12.2006.

32) On careful perusal of Ex.A.8, the Certificate of

Registration of Srinivasa General Stores, for which the

deceased is the Proprietor and the copy of the return of

turnover tax, dated 31.10.2006 filed on behalf of Srinivasa

General Stores, this Court satisfied that the deceased at the

time of death in road accident is running Srinivasa General

Stores and paying turnover tax. As per the evidence of PW.1,

the deceased used to earn Rs.15,000/- per month, but she

has not produced any document to establish the monthly

income of the deceased. Under the circumstances, the

Tribunal found that the petitioners failed to establish the

actual income of the deceased. But, in consideration of Ex.A.8

and a copy of turnover tax received as additional evidence in

this appeal and the evidence of PW.1, in the opinion of this

Court, the deceased definitely is having substantial income

through his business. As there is no any specific evidence on

record with regard to the income of the deceased, some

amount of guess work is required to be done. Merely because

claimants were unable to produce documentary evidence to

show the monthly income of the deceased, same does not

justify to consider the income on lower side. Admittedly, this

appeal is filed by 4 appellants, who are the parents, wife and

son of the deceased. The deceased would have earned

sufficient income to maintain his entire family by running the

General Stores.

33) In fact, as per the judgment of the Hon‟ble Apex

Court in Latha Wadhawa vs. State of Bihar6 in which it was

held that in the absence of the proof of earnings, minimum of

Rs.3,000/- per month can be taken. In the light of the said

judgment, a learned single judge of the High Court of

Telangana and Andhra Pradesh at Hyderabad in T. Rama

Krishna vs. Valluri Babu Rao and 3 others7 fixed the

income of the deceased in the absence of any proof at the rate

of Rs.3,500/- was taken to determine the compensation

therein.

34) Considering the above judgments and the evidence

available on record, in the considered opinion of this Court, it

is appropriate and reasonable to consider the monthly income

of the deceased @ Rs.4,500/- per month.

35) The age of the deceased is 29 years as on the date

of accident as per the postmortem report which is marked as

Ex.A.2. In the claim petition and evidence also the same is

mentioned. In the claim petition filed in the year, 2014, the

age of the 1st petitioner (i.e.) wife of the deceased is

2001(8) SCC 197

2007(1) ALD 453

mentioned as 33 years. So, on 27.12.2006 (i.e.) the date of

accident her age is 25 years. As such, her husband (i.e.)

deceased age may be 29 years at that time. Hence, the age

of the deceased is considered as „29‟ years. As per the

judgment of the Hon‟ble Apex Court in National Insurance

Co. Ltd. Vs. Pranay Sethi and others8 the relevant

multiplier to the age group of 26 to 30 is "17". As such, the

appropriate multiplier to be applied in the present case is "17".

The appeal filed by 4 dependants of the deceased. Out of the

income of the deceased, 1/4th has to be deducted towards his

personal expenses, if he had alive while determining the

compensation. As per the settled law in Pranay Sethi's case

(6th supra) 40% income has to be calculated for future

prospectus. Considering all these aspects, in the light of the

settled law, the appellants are entitled for compensation under

various heads can be detailed as below:

(a) loss of dependency Rs.4,500/-x12x15-1/4+40% : Rs.9,63,900-00

(b) loss to estate : Rs. 15,000-00

(c) loss of consortium : Rs. 40,000-00

(d) funeral expenses : Rs. 15,000-00

Total : Rs.10,33,900-00

36) As per the decision of the Hon‟ble Apex Court in

Chandra @ Chanda @ Chandraram and another vs.

2017 ACJ 2700 (SC)

Mukesh Kumar Yadav and others9 wherein the Hon‟ble

Apex Court awarded interest @ 6% per annum. By following

the same, we hold that the appellants are entitled for the total

compensation of Rs.10,33,900/- with interest @ 6% per

annum from the date of claim application i.e., 19.07.2014 to

till the date of realization.

37) In the result, the MACMA No.2971 of 2018 is

allowed and ordered as follows:

(i) The decree and award, dated 20.07.2018 in

M.V.O.P.No.377 of 2014 passed by the Chairman, Motor

Accidents Claims Tribunal-cum-XIV Addl. District Judge,

Vijayawada, is set aside;

(ii) The Appellants are entitled for total compensation

amount of Rs.10,33,900/- (Rupees ten lakh thirty three

thousand and nine hundred only) with interest @ 6% per

annum and proportionate costs;

(iii) The compensation amount shall carry interest @ 6%

per annum from the date of claim application i.e., 19.07.2014