The Ap State Road Transport ... vs Smt.Kalivarapu Sobha 2 Ors
2022 Latest Caselaw 8052 AP

               HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO


                         MACMA.No.173 OF 2013

JUDGMENT :

1. Aggrieved by the Order dated 10.09.2009 in MVOP.No.1215 of 2006 passed by the Chairman, Motor Accident Claims Tribunal - Cum - I Additional District Judge, Visakhapatnam, (for short 'the Tribunal'), the respondent 1 and 2 of APSRTC preferred this appeal questioning the quantum of the compensation amount awarded by the Tribunal.

2. For convenience's sake, hereinafter, the parties will be referred to as arrayed in MVOP.No.1215 of 2006.

3. The 1st petitioner is the wife, 2nd petitioner is the daughter of Suresh Babu (hereinafter being referred to as deceased). The petitioners filed a claim petition under Section 166 MV Act for compensation of Rs.15,00,000/-. The claimant's case is that on 29.01.2006, the deceased reached ITI Junction, Marripalem, on Hero Honda Motorcycle bearing registration number AP.30B7305 to go to his office, an APSRTC bus bearing registration number AP9Z9302 (hereinafter referred to as an offending vehicle) driven by a driver in a rash and negligent manner and dashed the deceased, he fell and received a head injury and other injuries all over the body. The deceased got admitted to King George Hospital, Visakhpatnam; he was declared dead there.

4. Respondents 1 and 2 filed counter and contended that the deceased contributed to the accident without following traffic rules. The 3rd respondent, the mother of the deceased, remained exparte.

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5. Based on the pleadings, the Tribunal framed appropriate issues. Before the Tribunal on behalf of petitioners, PWs.1 and 2 got examined and marked Exs.A1 to A7. On behalf of the respondents, no oral or documentary evidence adduced

6. After considering the evidence on record, the Tribunal held that the accident occurred due to rash and negligent driving of the driver of the offending vehicle, and both respondents 1 and 2 were jointly and severally liable to pay the compensation amount of Rs.6,97,000/-.

7. Heard the arguments of learned counsel for the appellants and respondents and perused the record.

8. The learned counsel for appellants contends that the Tribunal erred in holding that accident occurred due to the rash and negligent driver of the offending bus, and the deceased was also responsible for the accident. The Tribunal erred in taking the deceased's income at Rs.5,000/- per month.

9. Now the points for determination are whether the Tribunal is justified in holding that the accident occurred due to rash and negligent driving of the offending vehicle's driver; whether the quantum of the compensation amount awarded by the Tribunal is just and reasonable.

10. To prove the accident, the 1st petitioner herself got examined as PW.1. Admittedly, she is not an eyewitness to the accident. The petitioners did not choose to examine any eyewitness. They relied on Ex.A2 Postmortem Report and Ex.A3 death certificate. The

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respondents did not dispute the deceased's death due to injuries sustained in the accident.

11. The driver of the offending vehicle is the best person to speak about the manner of the accident. Respondents 1 and 2 have also not taken steps to prove the manner of the accident by summoning the offending vehicle's driver and establishing that he did not drive the vehicle rashly and negligently at the time of the accident, as alleged by the claimants.

12. A reading of Ex.A1 FIR shows that the offending vehicle's driver drove rashly and negligently and caused the accident. The respondents placed no evidence to show that the contents of the charge sheet were incorrect. In a decision between K.Rajani and others Vs. M.Satyanarayana Goud and others1, the High Court observed that: "when the insurance company came to know that the police investigation is false, they must also challenge the charge sheet in appropriate proceedings. If at all the findings of the police are found to be totally incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false". In the case of Bheemla Devi Vs. Himachal Road Transport Corporation2, the Hon'ble Apex Court observed as follows: "It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible by the claimants. The claimants are merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond a reasonable doubt could not have been applied".

2015 ACJ 797

2009 ACJ 1725 (SC)

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13. Nothing on record suggests that the Investigating Officer filed a charge sheet against the driver of the offending vehicle without conducting a proper investigation bus .it is difficult to hold that the Police Officer fabricated a case.

14. In a proceeding under the M.V.Act, where the procedure is a summary procedure, there is no need to go by strict rules of pleading or evidence. A document with some probative value, the genuineness of which is not in doubt, can be looked into by the Tribunal for getting preponderance of probable versions. As such, it is by now well settled that even FIR or Police Papers, when made part of a claim petition, can be looked into for giving a finding in respect of happening of the accident. The preponderance of probabilities is the touchstone for arriving at a conclusion regarding rashness and negligence, as well as the mode and manner of the accident.

15. The reading of the documents placed before the Tribunal clearly shows that the accident occurred due to rash and negligent driving of the driver of the offending vehicle. When the appellant contends that the accident happened differently, it is to place necessary evidence before the Tribunal, based on which the Tribunal is expected to give its conclusion. The Tribunal has accepted the case of the claimants regarding the manner of the accident and also accepted the observations made by the Investigating Officer in the charge sheet making the auto driver responsible for the accident. The contents of the charge sheet also support the case of claimants regarding the manner of the accident.

16. This court believes that negligence or contributory negligence must be proved like any other fact. There are no different standards for

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proving negligence or contributory negligence. But they cannot be decided on suspicion or surprise. The pleas taken in the counter will remain as pleas being not substantiated by acceptable, relevant and legal evidence. There must be cogent evidence to prove contributory negligence. In the instant case, there is no specific evidence to prove that the accident occurred due to the rash and negligent riding of the motorcyclist. In the absence of convincing evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. There are no details of contributory negligence in the counter and no evidence is also put forth except alleging a stray sentence in the counter. How the accident happened leaves no doubt that the driver of the offending bus was solely negligent in causing the said accident. While granting relief under the act, the courts are not to be bound by mere technicalities but would adopt a liberal approach by giving the law a more comprehensive construction and meaning that would favour the victims.

17. A normal rule is that it is for the petitioners to prove the negligence. But in accident cases, hardship is caused to the petitioner as the actual cause of the accident is not known to them but is solely within the knowledge of the respondent who caused it. It will then be for the respondent to establish the accident due to some other cause than his negligence. As respondents 1 and 2 did not choose to examine the bus driver who was involved in the accident, and he did not enter into the box to explain the manner of the accident, there is no ocular evidence led in by the respondent.

18. Upon careful reading of the material on record, this court views that the Tribunal has correctly appreciated the evidence. The finding of the Tribunal that the accident occurred due to rash and negligent

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driving of the offending vehicle holds good.

19. The Tribunal considers the age of the deceased as 32 years; it is not disputed by the respondents. Petitioners examined PW.2 S.Chakravarthi to prove Ex.A4 last pay certificate dt.04.03.2006. Though it shows that the deceased was drawing Rs.7,000/- per month, by giving reasons, the Tribunal has taken his earnings as Rs.5,000/- only. Thus the annual income of the deceased comes to Rs.60,000/- and the Tribunal rightly deducted 1/3rd towards the personal expenses incurred by the deceased, estimating the net income at Rs.40,000/- per month. But the Tribunal applied the multiplier as '17' instead of '16'. Applying the relevant multiplier '16' the loss of dependency comes to Rs.40,000/- X 16 = Rs.6,40,000/-. The Tribunal granted a total compensation amount of Rs.6,97,000/-. This court views that an amount of Rs.57,000/- can be granted to the petitioners towards conventional heads.

20. Resultantly I am of the view that the appellants have not made out any case to interfere with the impugned Order of the Tribunal except some findings which were altered by this court. I do not find any substance in the appeal. Accordingly, the appeal being devoid of merits, is hereby dismissed without costs and the Order dt.10.09.2009 passed by the Tribunal in MVOP.No.1215 of 2006 is hereby confirmed.

21. Miscellaneous petitions, if any are pending, shall stand closed.

__________________________________ JUSTICE T.MALLIKARJUNA RAO Date :28.10.2022.

BV/KGM

MACMA.No.173 OF 2013

HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

MACMA.No.173 OF 2013 Date : .2022

BV/KGM