Bandaru Nageswara Rao, ... vs Menda Dharma Rao, Srikakulam Dist ...
2023 Latest Caselaw 2114 AP

      THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                      M.A.C.M.A.No. 813 of 2013

JUDGEMENT:

The appellants are claim petitioners and the respondents are

respondents in M.V.O.P.No.79 of 2011 on the file of the Motor

Accident Claims Tribunal-cum-III Additional District Judge, East

Godavari at Kakinada. 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 loss of life of Bandaru Raghavamma in a

motor vehicle accident which took place on 01.01.2010 at

Jaggampeta-Rajahmundry N.H.5 road, Thalluru Village, Gandepalli

Mandal.

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

as follows:

VGKR,J MACMA No. 813 of 2013

On 01.01.2010 in the night, the deceased started from her

house to go to the house of Satyavathi of Thalluru Village,

Gandepalli Mandal, and while she was crossing Jaggampeta-

Rajahmundry N.H.5 road, all of a sudden, a lorry bearing registration

No.AP 16W 1088 driven by the 1st respondent came in a rash and

negligent manner and without blowing horn and dashed the

deceased, as a result, she sustained severe head injury and other

multiple injuries all over the body and died on the spot itself. The 1st

respondent is the driver, the 2nd respondent is the owner and the 3rd

respondent is the insurer of the crime vehicle and hence, all the

respondents are jointly and severally liable to pay compensation.

5. The 2nd respondent remained set ex parte. The 3rd

respondent/Insurance company filed a counter by denying the

manner of the accident. It is pleaded that the accident was occurred

due to reckless, negligent behavior and lack of road sense on the

part of the deceased and that the 1st respondent was not having a

valid and subsisting driving licence by the date of accident.

VGKR,J MACMA No. 813 of 2013

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

following issues were settled for trial by the Tribunal:

1) Whether the accident occurred out of the use of lorry bearing No.AP 16W 1008 and due to the rash and negligent driving of the said vehicle by the 1st respondent?

2) Whether the petitioners are entitled for compensation? If so, to what amount and from which of the respondents?

3) To what relief?

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

1st petitioner got examined himself as P.W.1 and got marked

Exs.A.1 to A.7. No evidence was adduced on behalf of the

respondents. However, a copy of policy was got marked as Ex.B.1.

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

to a conclusion that the claim petitioners failed to prove that the

accident took place due to rash and negligent driving of the driver of

the crime vehicle, and accordingly, dismissed the claim application.

Aggrieved against the said order, the claim petitioners preferred the

present appeal.

VGKR,J MACMA No. 813 of 2013

9. Heard arguments of learned counsel for the appellants and

learned standing counsel for the 3rd respondent/Insurance company.

10. It is the contention of the appellants that the Tribunal failed to

consider Exs.A.1 to A.5 which clearly show that the 1st respondent,

who is the driver of the crime vehicle, is responsible for the accident.

11. Now, the points for determination are:

1) Whether the claim petitioners are entitled compensation as

prayed for? and

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

12. POINT Nos.1 & 2: A specific plea is taken by the 3rd

respondent/Insurance company that due to reckless and negligent

behavior of the deceased in cross the national high way, the

accident took place and she herself was responsible for taking place

of the accident, and that the 1st respondent, who is the driver of the

crime vehicle, is not responsible for the said accident.

13. P.W.1 is no other than the son of the deceased and he is not

an eye witness to the accident. The Tribunal came to a conclusion

VGKR,J MACMA No. 813 of 2013

that the claim petitioners failed to examine the eye witnesses to the

accident except examining the 1st petitioner as P.W.1. No other oral

evidence was adduced to prove about the rash and negligent driving

of the driver of the crime vehicle. As seen from the material on

record, the petitioners got marked a copy of first information report

as Ex.A.1 and also a copy of charge sheet as Ex.A.5. The learned

Tribunal ignored Exs.A.1 and A.5 and came to wrong conclusion

that the petitioners failed to prove that the accident occurred due to

rash and negligent driving of the driver of the crime vehicle. The

Tribunal has not given any finding on Exs.A.1 to A.5. Ex.A.1 clearly

goes to show that the first information report was registered against

the 1st respondent/driver of the crime vehicle. Ex.A.5 also clearly

goes to show that after completion of investigation, the Investigating

Officer filed charge sheet against the 1st respondent before the

learned Magistrate Court. Exs.A.2 and A.3, copies of Inquest report

and post mortem of the deceased, show that the deceased died in a

road accident in question. Ex.A.4-copy of M.V.I. report also clearly

shows that the accident was occurred not to due to any mechanical

defects of the crime vehicle. In view of the above reasons, it is clear

VGKR,J MACMA No. 813 of 2013

that the accident was occurred due to rash and negligent driving of

the driver of the crime vehicle. Therefore, I hold that the Tribunal

came to wrong conclusion that the petitioners failed to prove the

rash and negligent driving of the driver of the crime vehicle.

14. The material on record reveals that the mother of 1st petitioner

and petitioner Nos.3 to 6 died in a road accident. The 2nd petitioner,

who is none other than the husband of the deceased, died during

pendency of the claim petition before the Tribunal. The contention

of the petitioners is that the deceased was used to earn Rs.150/- per

day. No positive evidence is adduced by the petitioners to show

that the deceased used to earn Rs.150/- per day by the date of

accident. The accident was occurred in the year 2010. In those

days, an ordinary coolie can easily earn Rs.100/- per day. Therefore,

the monthly earnings of the deceased is arrived at Rs.3,000/-. The

dependents on the deceased are five in number by the date of

accident and at present, four in number. As per the decision of the

Hon'ble Supreme Court of India in Sarla Varma case, 1/4th income

has to be deducted towards personal expenses of the deceased and

3/4th income has to be taken as contribution to her family. As per

VGKR,J MACMA No. 813 of 2013

the inquest report and as per the pleadings of the petition, the

deceased was aged about 46 years. Therefore, as per the judgment

in Sarla Varma case, the multiplier applicable to the age group of

the deceased is "13". As stated above, the monthly earnings of the

deceased is Rs.3,000/-. So, the annual earnings of the deceased is

Rs.36,000/-. If 1/4th income is deducted towards personal expenses

of the deceased, Rs.27,000/- is available towards contribution to the

family of the deceased. So, the annual contribution to the family of

the deceased is Rs.3,51,000/- (Rs.27,000/- x 13). Rs.5,000/- is

awarded towards funeral expenses of the deceased. In total, the

claim petitioners are entitled compensation of Rs.3,56,000/-.

15. Ex.A.6-copy of Insurance policy of the crime vehicle clearly

goes to show that the crime vehicle was insured with the 3rd

respondent/Insurance company and the police is also on force and

the 2nd respondent has insured the crime vehicle with the 3rd

respondent.Ex.A.7-copy driving licence of the 1st respondent goes to

show that the 1st respondent is having a valid driving licence.

Therefore, the 3rd respondent being an insurer of the 2nd respondent

is liable to pay the entire compensation to the claim petitioners.

VGKR,J MACMA No. 813 of 2013

16. In the result, the appeal is partly allowed. The order dated

31.12.2012 passed by the Motor Accident Claims Tribunal-cum-III

Additional District Judge, East Godavari at Kakinada in

M.V.O.P.No.79 of 2011 is hereby set aside. The appellants/claim

petitioners are entitled compensation of Rs.3,56,000/- (Rupees

three lakh fifty six thousand only) with proportionate costs and

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

The 3rd respondent/Insurance company is directed to deposit the

entire compensation amount with costs and interest, within two

months from the date of this judgment. On such deposit, petitioner

Nos. 1 and 3 to 6 are entitled to withdraw Rs.71,200/- each along

with proportionate costs and interest. No order as to costs in the

appeal.

Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 20 April, 2023 cbs

VGKR,J MACMA No. 813 of 2013

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 813 of 2013

20th April, 2023 cbs