Andhra Pradesh High Court - Amravati
Andhra Pradesh State Road ... vs Kesara Gayathri, Vijayawada Amp 3 ... on 27 October, 2022
BVLNC,J MACMA 309 of 2016
Page 1 of 13 Dt: 27.10.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.309 OF 2016
JUDGMENT:
This appeal is preferred by the 2nd respondent/APSRTC,
challenging the award dated 12.01.2015 passed in
M.V.O.P.No.608/2013 on the file of Motor Accidents Claims Tribunal-
cum-VII Addl.District Judge, Vijayawada, wherein the Tribunal while
partly allowing the petition, awarded compensation of Rs.6,76,200/-
with interest @ 7.5% P.A. from the date of petition, till the date of
realisation to the petitioners/claimants for the death of Kesara
Venkateswara Reddy.
2. For the sake of convenience, the parties are arrayed as parties in
the lower Court.
3. As seen from the record, originally the petitioners filed an
application U/s.166 r/w.455 of Motor Vehicles Act, 1988 (for brevity
"the Act") claiming compensation of Rs.8,00,000/- on account of the
death of Kesara Venkateswara Reddy, who is father of petitioners 1
and 2 and son of 3rd petitioner, in a motor vehicle accident occurred on
10.04.2012, while the deceased was travelling as a pillion rider on TVS
Moped bearing No.AP 16 4979, by the offending bus bearing No.AP29A
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9722 belonging to the appellant/APSRTC, which met with an accident
at Nirmala convent road junction on NH-5, Vijayawada.
4. The facts show that on 10.04.2012 while the deceased was
travelling as a pillion rider on TVS Moped bearing No.AP 16 4979, by
the offending bus bearing No.AP29A 9722 belonging to the
appellant/APSRTC, which met with an accident at Nirmala Convent
Road Junction on NH-5, Vijayawada, and at that time the offending
RTC Bus bearing No.AP29A 9722 being driven by 1st respondent in a
rash and negligent manner with high speed, and without blowing horn,
while proceeding from Eluru side towards Benz Circle, dashed against
the moped, as a result of which, deceased Venkateswara Reddy
sustained multiple injuries all over his body, and immediately he was
shifted to Government Hospital, Vijayawada, where doctor declared
Venkateswara Reddy was dead. On information, Patamata Police
registered a case in Cr.No.237/2012 for the offence punishable
U/s.304-A of Indian Penal Code against the driver of the bus No.AP29Z
9722. The deceased was hale and healthy at the time of accident, he
is aged 36 years and working as mutha coolie, and earning Rs.9,000/-
per month. Due to death of deceased, the petitioners lost their bread
winner and put to hardship and mental agony.
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5. Before the Tribunal, the appellant, who is the 2nd respondent in
the petition, filed counter resisting while traversing the material
averments with regard to proof of age, avocation, monthly earnings of
the deceased, manner of accident, rash and negligence on the part of
the driver of the crime bus, nature of injuries, medical expenditure and
liability to pay compensation and contended that the said accident was
occurred due to rider of TVS Moped, as he unable to control the
moped, crossed the road from left side to right side, and the said three
persons on moped fell down on road and the said three persons were
in drunken condition. There is no negligence on the part of
1st respondent, as such, the petitioners are not entitled for any relief.
The 1st respondent/driver remained exparte before the Tribunal.
6. On the strength of the pleadings of both parties, the Tribunal
framed the following issues:
1. Whether the deceased Kesara Venkateswara Reddy died in a
motor vehicle accident that on 10.04.2012 at 23.10 hours near
Nirmala Convent Junction on NH-5, Vijayawada, due to rash
and negligent driving of the driver of Bus bearing No.AP 29Z
0722?
2. What is the correct age and income of the deceased by the
time of accident?
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3. Whether the petitioners are entitled to compensation as
prayed for? If so for what amount and from whom?
4. To what relief?
7. To substantiate their claim, the petitioners examined P.Ws-1 and
2 and got marked Exs.A-1 to A-4. No oral or documentary evidence
was adduced on behalf of the 2nd respondent/APSRTC.
8. The Tribunal, taking into consideration the evidence of P.Ws-1
and 2, coupled with Exs.A-1 to A-4, held that the accident took place
due to rash and negligent driving of the driver of the APSRTC bus, and
further, taking into consideration of the evidence of P.Ws-1 and 2
corroborated by Exs.A-1 to A-4, awarded a compensation of
Rs.6,76,200/- with interest @ 7.5% P.A. from the date of petition, till
the date of realisation.
9. The plea of the 2nd respondent/APSRTC is that the 1st
respondent/driver of APSRTC is not responsible for the accident. It
was pleaded that the accident had occurred due to the negligent act of
rider of TVS Moped bearing No.AP16 4979, as three persons were
travelling on the said moped, and the rider of the TVS Moped was in
drunken condition and unable to control the vehicle and fell on the
road, and due to that the said accident was occurred.
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10. The Tribunal considered the evidence on record, and based on
the contentions of both parties, held that the accident occurred due to
the rash and negligent driving of the 1st respondent driver at 70% and
that also due to the contributory negligence of deceased
K.Venkateswara Reddy at 30%.
11. The Tribunal after considering the evidence of P.Ws-1 and 2
coupled with Exs.A-1 to A-4, awarded an amount of Rs.9,36,000/-
towards loss of earnings of the deceased, Rs.5,000/- towards transport
charges; Rs.10,000/- towards funeral expenses; Rs.10,000/- towards
love and affection; total comes to Rs.9,66,000/-. In view of the
contributory negligence on the part of deceased is at 30% and thus,
the petitioners are entitled to a compensation of Rs.6,76,200/-only.
12. As seen from the record, the appellant/APSRTC did not adduce
any evidence before the Tribunal, in support of the pleas taken by the
APSRTC in the counter.
13. The contention of the appellant/APSRTC is that, the Tribunal
erred in holding that accident was occurred due to rash and negligent
driving of the driver of the APSRTC Bus. The further contention of the
appellant is that, the deceased was travelling on the TVS Moped as a
pillion rider, and the accident was occurred due to the negligence of
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the driver of the moped, who was in a drunken condition, and
therefore, fastening liability on the appellant is unwarranted.
14. The other contention of the appellant/APSRTC is that the
Tribunal erred in fixing the income of the deceased as Rs.6,000/- per
month without any evidence. The further contention of the appellant
is that the Tribunal erred in awarding compensation inspite of giving a
finding that there was contributory negligence on the part of the
deceased.
15. The claim application was filed by the minor daughters of
deceased and mother of the deceased as dependants against the driver
of the APSRTC Bus and the appellant/APSRTC for a sum of
Rs.8,00,000/- for the death of deceased, on the ground that the
accident was occurred due to rash and negligent driving of the driver
of the appellant/APSRTC Bus, and the deceased died due to the
injuries sustained in the accident on 10.04.2012 at about 11.10 p.m.
while the deceased was proceeding on TVS Moped as a pillion rider
and one Mr.A.Ramesh Reddy (P.W-2) was the driver of the moped, and
that the bus driver drove the bus with high speed and without blowing
horn, and dashed the moped near Nirmala Convent Road Junction on
N.H.5, on that Patamata police registered a case for the offence
punishable U/s.304-A of Indian Penal Code against the driver of the
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bus, as he drove the bus in a rash and negligent manner and later
after investigation, filed police report (charge sheet) against the driver
for the said offence, and therefore, the driver of the APSRTC bus and
the APSRTC are jointly and severally liable to pay compensation.
16. The driver of the appellant/APSRTC remained exparte before the
Tribunal, and the appellant filed counter denying the case of the
claimants and contending that the accident was occurred due to rash
and negligent driving of the driver of the TVS Moped and three persons
were travelling at the time of accident on the moped, and therefore,
they violated the provisions under Motor Vehicles Act, and therefore,
they contributed for the cause of the accident, and as such, the
appellant is not liable to pay any compensation to the claimants.
17. On behalf of the claimants, the mother of the deceased was
examined as P.W-1, who was not an eye witness to the accident. The
claimants examined Mr.A.Ramesh Reddy (P.W-2), who was the driver
of the TVS Moped at the time of accident. He deposed about the
manner in which the accident was occurred and as per his evidence,
the accident was occurred due to the rash and negligence of the driver
of the appellant/APSRTC bus. The appellant/APSRTC did not elicit
anything in the cross-examination of P.W-2 in support of its
contention that the accident was occurred due to rash driving of P.W-2
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and that they were in a drunken state at the time of accident. The
claimants in support of their case, also filed Ex.A-1 copy of FIR and
Ex.A-2 copy of police report (charge sheet), which corroborates the
evidence of P.W-2. The appellant/APSRTC did not adduce any
evidence in support of its case. The appellant failed to examine the
driver of the APSRTC Bus, who remained exparte before the Tribunal.
Therefore, the contention of the appellant/APSRTC was not supported
by any evidence.
18. The evidence of P.W-2, Ex.A-1 copy of FIR and Ex.A-2 copy of
police report (charge sheet) discloses that at the time of accident,
P.W-2 was driving the moped. The deceased and another person were
sitting on the moped, indicating that they were three persons travelling
on the TVS Moped at the time of accident. The Tribunal has
considered this aspect, and held that the motor cyclist is liable to
contribute for the negligence to some extent, and in the circumstances
of the case, considering the fact that the motor cycle was hit from
front, held that P.W-2 should be liable for contributory negligence to
the extent of 30%, and bus driver was liable for negligence to the
extent of 70%.
19. The Tribunal further held that there is no specific evidence to
prove that the accident was taken place only due to rash and negligent
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driving of the driver of the moped, and therefore, the decision relied by
the learned counsel for APSRTC in the case of Meeradevi and another
Vs. H.R.T.C. and others in Crl.A.No.5764/2008 of Hon'ble Apex
Court, has no application to the facts of the case, and further held
that in view of Ex.A-1, Ex.A-2 and Ex.A-4 and the evidence of P.W-2, it
shows that the deceased was sitting on middle of the moped, and one
V.Srinivasa Reddy sat on the back side of the moped and both were sat
as pillion riders, and opined that the accident was occurred due to the
rash and negligent act of the driver of the APSRTC bus, and fixed
contributory negligence of the APSRTC Bus driver to the extent of 70%.
In that view of the matter, I do not find any reason to interfere with the
findings of the Tribunal.
20. The other contention of the appellant/PSRTC is that the
Tribunal fixed the income of the deceased as Rs.6,000/- per month,
which is excessive and exorbitant. The mother of the deceased, who
was examined as P.W-1 deposed that the deceased was aged about 36
years at the time of accident, and it was also corroborated by Ex.A-3
post mortem certificate, and accordingly, fixed the age of the deceased
as 36 years at the time of accident, and so far as the income of the
deceased is concerned, the contention of the claimants is that the
deceased was working as a mutha coolie and earning Rs.9,000/- per
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month. The Tribunal held that the claimant did not examine any
witness to prove the said contention, and observed that the accident
was occurred in the year 2012, and in those days, agriculture
labourers were getting not less than Rs.200/- per day, and
accordingly, fixed the income of the deceased at Rs.200/- per day and
at Rs.6,000/- per month. Admittedly, the appellant/APSRTC did not
adduce any contra evidence, and therefore, I do not find any reason to
interfere with the findings of the Tribunal regarding the income of the
deceased as Rs.6,000/- per month.
21. The Tribunal upon considering the facts and circumstances of
the case, deducted 1/3 towards personal expenses of the deceased and
arrived the monthly income of the deceased at Rs.5,200/-, by adding
30% towards future earnings, and applied multiplier 15 as per
judgment of the Hon'ble Apex Court in the case of Sarla Verma and
others Vs. Delhi Road Transport Corporation and another 1, and
arrived the loss of earnings of the deceased at Rs.9,36,000/-; and also
awarded Rs.5,000/- towards transport charges; Rs.10,000/- towards
funeral expenses; Rs.5,000/- towards loss of estate; and Rs.10,000/-
towards love and affection, and Tribunal awarded total compensation
of Rs.9,66,000/-, and the Tribunal deducted 30% of the amount
2009 ACJ 1298
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towards contributory negligence, and arrived the final compensation
amount at Rs.6,76,200/-. The appellant/APSRTC did not point out
any error or irregularity committed by the Tribunal while calculating
the amount of compensation awarded by the Tribunal. In that view of
the matter, I do not find any reason to interfere with the findings of the
Tribunal.
22. The Tribunal awarded interest at 7.5% p.a. from the date of
presentation of petition, till the date of realisation with proportionate
costs. The accident was occurred in the year 2012 and the
Appellant/APSRTC without admitting for just, fair and reasonable
compensation, dragging on the matter for the last 10 years. In view of
the judgment of the Hon'ble Apex Court in the case of Jakir Hussein
Vs. Sabir2, which referred another judgment of the Hon'ble Apex Court
in Municipal Corporation of Delhi Vs. Association of Victims of
Uphaar Tragedy3, wherein interest was granted @ 9% p.a. I do not
find any ground to interfere with the rate of interest awarded by the
Tribunal at 7.5% p.a. from the date of petition, till the date of
realisation.
(2015) 7 SCC 2154
(2011) 14 SC 481
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23. In the light of the above discussion, I do not find any grounds to
interfere with the award passed by the Tribunal, and therefore, the
appeal is liable to be dismissed.
24. In the result, the appeal is dismissed, by confirming the award
dated 12.01.2015 passed in M.V.O.P.No.608/2013 on the file of Motor
Accidents Claims Tribunal-cum-VII Additional District Judge,
Vijayawada. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall
stand closed.
____________________________
B.V.L.N.CHAKRAVARTHI, J
27.10.2022
psk
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HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.309 OF 2016
27th October, 2022
psk
