Kelam Ratna Kumari 3 Ors vs Ssri Madaka Durga Prasad Anr
2023 Latest Caselaw 2082 AP

      THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                     M.A.C.M.A.No. 1316 of 2012

JUDGEMENT:

The appellants are claim petitioners and the respondents are

respondents in M.V.O.P.No.89 of 2010 on the file of the Motor

Accident Claims Tribunal-cum-District Judge, East Godavari at

Rajahmundry. The appellants filed the appeal questioning the legal

validity of the order of the Tribunal.

2. For the sake of convenience, both the parties in the appeal will

be referred to as they are arrayed in the claim application.

3. The claim petitioners filed the petition under Section 166 of

the Motor Vehicles Act, 1988 claiming compensation of

Rs.6,00,000/- for the death of Kelam Satyanarayana in a motor

vehicle accident which took place on 25.11.2009 at about 6.30 p.m.

near Bijili Ice Factory, Korukonda Road, Rajahmundry.

4. The brief averments in the petition filed by the petitioners are

as follows:

VGKR,J MACMA No.1316 of 2012

On 25.11.2009 the deceased was proceeding in an auto

bearing registration No.AP 5W 3192 to go to daily work and when

the auto reached near Bijili Ice Factory, Korukonda Road,

Rajahmundry, APSRTC bus bearing registration No.AP 10Z 4275

driven by its driver in a rash and negligent manner and at high

speed came in opposite direction and hit the auto. As a result of

which, the deceased sustained grievous injuries and succumbed to

injuries. The 1st respondent is the driver and the 2nd respondent

being the transport corporation is liable for the acts of the driver of

the crime vehicle vicariously and hence, both the respondents are

jointly and severally liable to pay the compensation.

5. The 1st respondent remained set ex parte. The 2nd

respondent/APSRTC filed a written statement by denying the

manner of the accident.

6. Based on the above pleadings of both the parties, the

following issues were settled for trial by the Tribunal:

1) Whether the accident was due to rash and negligent driving of APSRTC bus bearing registration No.AP 10Z 4275 by its driver, the 1st respondent herein?

VGKR,J MACMA No.1316 of 2012

2) Whether the petitioners are entitled for compensation amount claimed, if so, from which of the respondents?

3) To what relief?

7. During the course of enquiry, on behalf of the petitioners,

P.Ws.1 and 2 were examined and got marked Exs.A.1 to A.5. On

behalf of the 2nd respondent, R.W.1 was examined and no

documents were marked.

8. Basing on the material available on record, the Tribunal came

to a conclusion that the accident was occurred due to contributory

negligence on the part of both the drivers of the RTC bus and the

auto and awarded a total compensation of Rs.3,93,000/-.

Respondent Nos.1 and 2 are directed to pay 50% of the

compensation i.e., Rs.1,96,500/- with interest at 7.5% p.a. from the

date of petition till the date of deposit. It is observed that no amount

can be awarded against the driver of the auto, since no claim was

made against him in petition. Aggrieved against the said order, the

claim petitioners preferred the present appeal for enhancement of

compensation.

VGKR,J MACMA No.1316 of 2012

9. Heard arguments of learned counsel for the appellants and

learned standing counsel for the 2nd respondent/APSRTC.

10. The appellants pleaded that the Tribunal erred in holding that

the accident was occurred due to contributory negligence of both the

drivers of the RTC bus and the auto, without taking into

consideration the fact that the charge sheet was filed against the

driver of the RTC bus and departmental action was initiated against

him by the employer.

11. Now, the points for determination are:

1) Whether the claim petitioners are entitled enhancement of

compensation as prayed for? and

2) Whether the order of the Tribunal needs any interference?

12. POINT Nos.1 & 2: In order to prove the rashness and

negligent driving of the driver of the RTC bus, the claim petitioners

relied on the evidence of P.W.1. P.W.1 is none other than the wife

VGKR,J MACMA No.1316 of 2012

of the deceased. Admittedly, she is not a direct eye witness to the

accident. Though she narrated about the accident, her evidence is

no way helpful to prove the rash and negligent driving of the driver

of the RTC bus.

13. The petitioners also examined one Nuthalapati Raju as P.W.2,

who is the driver of the auto in which the deceased was travelling at

the time of accident. P.W.2 admitted in his evidence in chief-

examination that he was driving the auto at the time of accident and

in cross-examination, he admits that two passengers were travelling

in the auto at the time of accident and the RTC bus was proceeding

towards up gradient road and the auto was coming to low gradient

road i.e., proceeding in opposite direction to one another. He further

admitted that while proceeding on the road driving the auto, to avoid

accident against a cyclist, the auto was swerved towards right side

and then the RTC bus hit the auto. In his evidence in chief-

examination, he clearly stated that due to rash and negligent driving

of the driver of the RTC bus, the accident was occurred. It is settled

law that a stray sentence elicited in cross-examination cannot be

taken into consideration, entire deposition has to be looked into.

VGKR,J MACMA No.1316 of 2012

I have perused the cross-examination of P.W.2. A suggestion was

given by learned counsel for the respondents to P.W.2 in cross-

examination that due to his negligence only, the accident was

occurred. The said suggestion was denied by P.W.2. In view of the

above, this Court feels that the accident was occurred due to rash

and negligent driving of the driver of the RTC bus.

14. Another important point to note is that Ex.A.1-first information

report was registered against the driver of the RTC bus and after

completion of investigation, the Investigating Officer laid a charge

sheet under Ex.A.5. Exs.A.1 and A.5 support the case of the

petitioners to prove that the accident was occurred due to rash and

negligent driving of the driver of the RTC bus only.

15. Therefore, the finding of the Tribunal that both the drivers of

the RTC bus and the auto are responsible for the accident, is liable

to be set aside and both the respondents are liable to pay the

compensation to the petitioners.

VGKR,J MACMA No.1316 of 2012

16. Though the petitioners pleaded that the daily income of the

deceased was Rs.300/-, but no cogent evidence was placed by

them to show that the daily income of the deceased is Rs.300/-.

The learned Tribunal rightly fixed the monthly income of the

deceased as Rs.3,000/- and the annual income as Rs.36,000/- and

accordingly, after deducting 1/3rd of the income towards personal

expenses of the deceased, calculated the contribution of the

deceased to the family at Rs.3,78,000/- (Rs.27,000/ x 14). The

Tribunal further awarded a sum of Rs.5,000/- towards loss of

consortium to the 1st petitioner, Rs.5,000/- towards loss of love and

affection and Rs.5,000/- towards funeral expenses. Hence, there is

no need to interfere with the said finding of the Tribunal. However,

the amount awarded towards loss of consortium is enhanced from

Rs.5,000/- to Rs.10,000/-. Thus, in all, the petitioners are entitled

total compensation of Rs.4,03,000/-.

17. In the result, the appeal is partly allowed enhancing the

compensation from Rs.1,96,500/- to Rs.4,03,000/- and the claim

petitioners are entitled enhanced compensation of Rs.2,06,500/-

with interest at 7.5% p.a. from the date of petition till the date of

VGKR,J MACMA No.1316 of 2012

payment by both the respondents. Both the respondents are

directed to deposit the enhanced compensation of Rs.2,06,500/-

with interest at 7.5% p.a. before the Tribunal within two months from

the date of the judgment. Out of the enhanced compensation of

Rs.2,06,500/-, the 1st petitioner is entitled Rs.56,500/- with

proportionate costs and interest and petitioner Nos.2 to 4 are

entitled Rs.50,000/- each with proportionate costs and interest. No

order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 19 April, 2023 cbs

VGKR,J MACMA No.1316 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 1316 of 2012

19th April, 2023 cbs