Ulusu Rajyalakshmi 2 Others vs B.Ravi 4 Others
2023 Latest Caselaw 1079 AP

          HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                        MACMA.No.3140 OF 2014

JUDGMENT:

1. Aggrieved by the order dated 28.01.2014 in M.V.O.P. No.972 of

2004 passed by the Chairman, Motor Accidents Claims Tribunal

- Cum- II Additional District Judge, Amalapuram (for short "the

tribunal") claimants, whereby the tribunal dismissed the claim

petition, the claimants have preferred the present appeal.

2. For convenience's sake, the parties will be referred to as arrayed

in the M.V.O.P.

3. The claimants' case is that they have filed a petition under

Section 166 of the Motor Vehicles Act, 1988, claiming

compensation of Rs.20,0,000/- on account of the death of Ulusu

Gangaraju, (hereinafter be referred as "the deceased") who died

in a motor vehicle accident that occurred on 17.08.2004.

4. The 1st claimant is the wife, claimants 2 and 3 are the children

and the respondents 4 and 5 are the parents of the deceased.

The deceased was employed in Central Industrial Security Force

and was working in Kaiga in Karnataka. On 14.08.2014 the

deceased was returning to Komaragiripatnam village from

Srungavruksham on his motorcycle bearing No.AP 5 G 4743.

After crossing the railway station at Srungavruksham, at about

04.00PM, a lorry bearing No.AP 16 W 4757 (hereinafter be

M.A.C.M.A. No.3140 of 2014

referred to as 'the offending vehicle') came from Bhimavaram side

and going towards Palakole. The 1st respondent drove the lorry in

a rash and negligent manner without blowing horn at high speed

and dashed the deceased from back side. As a result, the

deceased fell down from motorcycle, the right side wheels of the

offending vehicle ran over the head of deceased, and the

deceased died on spot. Hence, the claim petition.

5. The 1st respondent, driver of the offending vehicle, filed his

counter denying the allegations made in the petition. He

contended that he did not drive the lorry rashly and negligently ;

the accident did not occur due to his driving the accident might

have been caused by some other driver, but not the 1st

respondent and that the compensation is exaggerated.

6. The 2nd respondent, owner of the offending vehicle, filed his

counter contending that the accident might have been caused by

some other vehicle, but not due to the 1st respondent. No liability

is cast upon him. The 1st respondent did not drive the vehicle

rashly and negligently. The 1st respondent did not cause the

accident. The compensation claimed by the petitioners is

excessive. The 3rd respondent has to bear the same as an

insurer.

7. The 3rd respondent filed its counter contending that the claim

petition is not maintainable. The deceased himself contributed to

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the happening of the accident. The insurer of motorcycle bearing

No.AP 5 G 4743, on which the deceased travelling, is also proper

and necessary party to the proceedings. The compensation

claimed by the petitioners is excessive.

8. The respondents 4 and 5 filed their counter contending that the

deceased died in the accident due to rash and negligent driving

of the 1st respondent; the respondents 1 to 3 are jointly and

severally liable to pay compensation not only to the petitioners,

but also to the respondents 4 and 5. The 1 st petitioner filed this

petition on her own without consulting the respondents 4 and 5

for the reasons best known to her. The respondents 4 and 5 are

the parents of deceased and dependents upon the deceased. Due

to sudden death of their son, the respondents 4 and 5 suffered

shock, mental agony and also lost their dependency. So the

respondents 4 and 5 are entitled to get compensation from the

respondents 1 to 3.

9. Based on the pleadings, the Tribunal has framed relevant issues.

To substantiate the claim, on behalf of the claimants, P.Ws.1 to

3 got examined and marked Exs.A.1 to A.11. On behalf of the

respondents none were examined and got marked Ex.B.1-copy of

the policy.

10. Based on the oral and documentary evidence, the tribunal held

that the claimants failed to establish the involvement of the

M.A.C.M.A. No.3140 of 2014

offending vehicle in the accident in question and dismissed the

claim petition.

11. I have heard the learned counsel representing both the parties.

12. Learned counsel for appellants/claimants has contended that

that the Tribunal erred in dismissing the O.P. observing that the

accident was not occurred due to rash and negligent driving of

the offending vehicle's driver. The Tribunal did not take into

consideration of the material evidence available on record i.e.,

the FIR, inquest report, report of Vehicle Inspector and also the

charge sheet. The Tribunal ought to have seen that Exs.A1, A2,

A4 and A8 disclose that the accident was occurred due to rash

and negligent driving of the offending vehicle's driver. The

Tribunal grossly erred in discarding the evidence adduced by the

claimants without giving any reasons.

13. Per contra, the learned counsel for the respondents supported

the findings and observations of the Tribunal.

14. Now the points for determination are:

1. Whether the tribunal is justified in holding that the claimants failed to establish the involvement of the offending vehicle in the accident?

2. Whether the claimants are entitled to the compensation as claimed??

15. Before determining the points, I briefly refer the undisputed

facts.

M.A.C.M.A. No.3140 of 2014

16. The relationship among the claimants as claimed in the petition

is not disputed. The 1st petitioner is the wife, petitioners 2 and 3

are the children, the respondents 4 and 5 are the parents of the

deceased.

17. As seen from the material on record, the death of the deceased

due to injuries sustained in the accident is not disputed.

However, the involvement of the offending vehicle is seriously

disputed. The evidence of PW.1 coupled with Ex.A2 inquest

report, Ex.A3 postmortem certificate, Ex.A5 death certificate and

Ex.A8 charge sheet establish the death of the deceased due to

injuries sustained in the accident. The first respondent is the

driver; second respondent is the owner; the third respondent is

the insurer of the offending vehicle. The original of Ex.B1 policy

was in force as on the date of accident. But the tribunal

dismissed the OP by observing that in view of the finding on

issue No.1 the question of awarding compensation to the

petitioners would not arise.

18. The Tribunal previously dismissed the OP by holding that the

claimants failed to prove rash and negligent driving by the first

respondent. Aggrieved by the said order dated 12.04.2007

passed by the Tribunal, the petitioners approached this court by

filing MACMA.No.1424 of 2007 and this court was pleased to

remitted the matter to the Tribunal with a direction that an

M.A.C.M.A. No.3140 of 2014

opportunity to the claimants to examine the said witness

K.Ramesh to be given and dispose of the matter afresh. As per

the directions of this court, the tribunal restored the OP and sent

notices to the witness by name K.Ramesh. The claimants filed a

memo on 27.01.2014 informing that Sri.K.Ramesh went to

Abroad for job and not residing in the country and therefore

summons could not served on him. Thus, despite the

opportunity given by this court, the petitioners could not avail it.

19. As seen from the Tribunal's order on receipt of the notices after

remand the respondents 1 and 2 remained exparte and the

respondents 3 to 5 contested the matter.

Point No.1 :

a. The wife of the deceased, 1st petitioner, was examined as PW.1. In

her evidence, she narrated the manner of the accident. However,

during her cross examination, she stated that she did not witness

the accident. Thus, she does not have personal knowledge about

the manner of accident.

b. Coming to the evidence of PW.3-G.Nagamani, who claimed to have

witnessed the incident, testified that she saw the accident in

question that one lorry hit the motorcycle from behind in a rash

and negligent manner. As a result of which the motorcycle rider fell

down and the wheels of the lorry ran over him. The Tribunal

discarded her evidence by observing that, her evidence does not

M.A.C.M.A. No.3140 of 2014

prove that the lorry owned by the second respondent caused the

accident. The Tribunal has also taken into consideration of her

evidence that railway track is not visible from her house and she

did not go near the deceased from the place where she was

standing in front of her house at the time of accident. She doesn't

know the name or identity of the person died till the police arrived

and she did not give report to the police. The name of PW.3 was

also not mentioned in the charge sheet. Ex.A1 copy of FIR discloses

that the case was registered on the basis of report given by one

K.Ramesh, who is relative of deceased. After analyzing the evidence

of PW.3, the Tribunal has come to a conclusion that her evidence is

not helpful to establish the involvement of the offending vehicle.

c. It is pertinent to note that despite the service of notice the

respondents 1 and 2 have not disputed the case of the petitioners

by contesting the matter with regard to the involvement of the

offending vehicle. It is not the case of the third respondent that its

staff or officials have witnessed the accident in question and basing

on their version it is disputing the case of the petitioners regarding

the involvement of the offending vehicle in the accident in question.

Though, the claimants have not examined the eye witnesses to

prove the accident in question, but they relied on Ex.A1 attested

copy of FIR and Ex.A8 attested copy of charge sheet.

M.A.C.M.A. No.3140 of 2014

d. As per Ex.A1-FIR, the accident in question occurred on 17.08.2004

at 04.00PM and the information received at the police station on

the same day at 05.00PM. The place of accident is at a distance of

15 KMs from the police station. In Ex.A1 FIR all the particulars

regarding the manner of the accident including the involvement of

the offending vehicle is referred. The offending vehicle driver name

is also mentioned in the FIR. In Ex.A8 charge sheet, it is observed

that on 17.08.2004 just a little prior to 04.00PM the deceased left

the house of LW.5 to go to Komaragiripatnam on his Bajaj Boxer

motorcycle bearing No.AP5G4743 and when he reached the

outskirts of Srungavruksham village, the accused/ first respondent

being the driver of the lorry bearing No.AP16W4757 drove the same

in a rash and negligent manner and dashed behind the deceased.

The front and rear wheels of the right side of the offending vehicle

ran over the deceased and the head of the deceased crush and the

deceased died instantaneously.

e. The respondents placed no evidence to show that the contents of

the charge sheet are incorrect. In K.Rajani and V.

M.Satyanarayana Goud and others1, this 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 incorrect, it is for the insurance company to produce some

2015 ACJ 797

M.A.C.M.A. No.3140 of 2014

evidence to show that the contents of the charge sheet are false".

f. In the case of Bheemla Devi V. Himachal Road Transport Corporation,

2009 ACJ 1725 (SC), 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 to be done by the claimants. The claimants are merely to establish their case on the touch stone of preponderance of probabilities. The standard of proof beyond reasonable doubt could not have been applied".

g. Nothing on record suggests that the Investigating Officer filed a

charge sheet against the offending vehicle's driver without

conducting a proper investigation. It is also difficult to hold that

the Police Officer fabricated a case. 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. The document

having some probative value, the genuineness of which is not in

doubt, can be looked into by the Tribunal for getting

preponderance of probable versions. The preponderance of

probabilities is the touchstone for concluding rashness and

negligence, as well as the accident's mode and manner of

happening. 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.

h. The Tribunal has not accepted the claimants case regarding the

manner of the accident it has not considered the observations

M.A.C.M.A. No.3140 of 2014

made by the Investigating Officer in the charge sheet making the

offending vehicle's driver is responsible for the accident. The charge

sheet contents also support the claimants' case regarding the

manner of the accident. The reading of the documents placed

before the Tribunal clearly shows that the accident occurred due to

rash and negligent driving of the offending vehicle's driver.

i. Thus, the 2nd respondent has not disputed the case as pleaded by

the petitioners regarding the involvement of the offending vehicle in

the accident. In a case where his vehicle is not involved in the

accident, indeed, he could have contested the matter.

j. This Court views that the driver of the offending vehicle is the best

person to speak about the manner of the accident or non

involvement of the offending vehicle in the accident. The Insurance

company has not taken steps to prove its contention by

summoning the offending vehicle's driver and owner. A standard

rule is for the claimant to prove the negligence. But in accident

cases, hardship is caused to the claimants as the actual cause of

the accident is not known to them but is solely within the

knowledge of the respondents who caused it. It will then be for the

respondents to establish the accident was due to some other cause

than their negligence.

k. As already observed, the respondent contends that the offending

vehicle was not involved in the accident. There is no hurdle for the

M.A.C.M.A. No.3140 of 2014

3rd respondent to examine either owner or driver of the vehicle to

establish the said fact. Though the owner of the offending

vehicle/lorry is shown as the second respondent in the claim

petition, he has not chosen to contest the matter. Had his vehicle

not been involved in the accident, indeed, he could have contested

the case. When the involvement of the vehicle is not disputed by

the owner, I don't find any reason to suspect the involvement of the

vehicle in the accident, as the respondent/insurance company has

not placed any material to create doubt about the involvement of

the offending vehicle. The Tribunal has not properly appreciated

the evidence on record. After careful reading of the evidence on

record, this Court finds that the claimants have established the

involvement of the offending vehicle. Accordingly, the point No.1 is

answered.

POINT No.2:

a. It is not in dispute that the deceased was employed in Central

Industrial Security Force. To establish the earnings of the

deceased, the claimants relied on Ex.A.6-salary certificate; Ex.A.9-

copy of salary particulars of deceased; Ex.A10 copy of

acquaintance register for the month of February, 2004 and Ex.A11

copy of particulars of employees and salaries payable to them.

Ex.A.6-Salary slip shows that the deceased was getting an amount

of Rs.7,058/- per month. Out of the said amount, it seems that the

M.A.C.M.A. No.3140 of 2014

deceased was paying Rs.500/- towards GPF Subscription and

Rs.550/- towards GPF Advance and Rs.150/- towards Festival

Advance. As such this court views that the said amounts need not

be deducted out of the salary. Ex.A6 also shows that he was

serving in Central Industrial Security Force at NPC, Kaiga. Ex.A.9

details of salary issued by Assistant Commandant, DDO, CISF Unit

shows also the same. Exs.A10 and A11 also support the

particulars shown in Ex.A6. After considering the documents

placed on record, this court considers the monthly earnings of the

deceased at Rs.7000/-. Ex.A3 postmortem certificate and contents

of petition shows that the age of the deceased as '37' years. There

is no serious dispute regarding the age. In absence of any

certificate showing the exact age of the deceased, this court is

inclined to consider Ex.A3 postmortem certificate. The age of the

deceased is established by the postmortem certificate as '37' years.

Insofar as the future prospects are concerned, the Apex Court, in

National Insurance Company Ltd. vs Pranay Sethi 2 , at

paragraph 61, held that,

(iii) While determining the income, an addition of 50% of the actual salary to the income of the deceased towards prospects, where the deceased had a permanent job and was below the age of 40, should be made. The addition should be 30% if the age of the deceased is between 40 to 50 years. If the deceased was between 50 to 60 years, the addition should be

(2017) 16 SCC 680

M.A.C.M.A. No.3140 of 2014

15%. Actual salary should be read as actual salary less tax.

(iv) If the deceased was self-employed or on a fixed salary, an additional 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary computation method. The established income means the income minus the tax component.

b. In this case, the deceased had a permanent job, and as such,

this Court views that an additional 50% of the established

income should be warranted towards future prospects. The

monthly earnings, including future prospects, arrive at

Rs.10,500/- (7,000+3,500). Following the same, the annual

earnings of the deceased, including a future prospectus, can be

assessed at Rs. 1,26,000/- (Rs.10,500 x 12).

c. Out of which, where the deceased is a married person and the

dependants are 5 in number, 1/4th of the personal and living

expenses of the deceased should be made i.e. Rs.31,500/-

(1,26,000 x ¼ ) and thereby, the contribution of the earnings of

the deceased towards the family members would arrive at an

amount of Rs.94,500/- (1,26,000-31,500). To arrive at the loss

of earnings, the appropriate multiplier '15' for the age groups of

36 to 40 as specified by the Apex Court in Sarala Verma v.

M.A.C.M.A. No.3140 of 2014

Delhi Transport Corporation3 is applied and arrived the loss of

dependency at Rs.14,17,500/- (94,500 x 15).

d. Insofar as the conventional heads is concerned, in Pranay

Sethi's case referred to supra, the Apex Court awarded a total

sum of Rs.70,000/- under conventional heads, namely, loss of

estate, loss of consortium, and funeral expenses. It was further

held that the sum should be enhanced at 10% every three years.

It was held thus in Paragraph 61:

"(viii) Reasonable figures under conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Res.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

e. In Magma General Ins. Co. Ltd., v. Nanu Ram 4, at paragraph

8, the Apex Court held that:

"(8.6)...the Motor Vehicles Act is beneficial and welfare legislation. The Court is duty-bound and entitled to award 'just compensation, irrespective of whether any plea on that behalf was raised by the claimant.

(8.7) A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (S.C.), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is the loss of consortium.

In legal parlance, 'consortium' is a compendious term which encompasses 'spousal consortium', parental consortium', and filial consortium.

2009 ACJ 1298

2018 ACJ 2782

M.A.C.M.A. No.3140 of 2014

The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse (Rajesh v. Rajbir Singh 2013 ACJ 1403 (S.C.).

The parental consortium is granted to the child upon the premature death of a parent, for loss of 'parental aid, protection, affection, society, discipline, guidance and training.

The filial consortium is the right of the parents to compensate in the case of the accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit."

f. The Judgment in Pranay Sethi's case was rendered in the year

2017. Therefore, the claimants are entitled to a 10%

enhancement of conventional heads.

g. In all, the claimants, wife and children, and the respondents 4

and 5, parents of the deceased, are entitled to the compensation

as detailed below:

Towards loss of dependency Rs.14,17,500/-

        Towards funeral expenses            Rs.     16,500/-
        Towards loss of estate              Rs.     16,500/-
        Towards spousal consortium          Rs.     44,000/-
        Towards parental consortium         Rs.     88,000/-
        Towards filial consortium           Rs.     20,000/-
                                            ---------------------
             Total:                         Rs. 16,02,500/-
                                            ---------------------

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h. After considering the material on record, this Court holds that

the claimants are entitled to an amount of Rs. 16,02,500/- with

interest at 7.5% per annum. Given the discussion above in the

appeal, this court warrants interference with the impugned order

and allowed the claim petition. Accordingly, this point is

answered.

20. In the result, the appeal is allowed in part with costs setting

aside the order dated 28.01.2014 in M.V.O.P. No.972 of 2004

passed by the Chairman, Motor Accidents Claims Tribunal -

cum- II Additional District Judge, Amalapuram and awarding

compensation of Rs.16,02,500/- (Rupees Sixteen Lakhs Two

Thousand Five Hundred Only) with interest at 7.5% per annum

from the date of claim petition till realization against respondent

Nos.1 to 3. Out of which, the 1st petitioner, wife of the deceased,

is entitled to Rs.9,27,500/- (Rupees Nine Lakhs Twenty Seven

Thousand Five Hundred Only) with accrued interest and costs,

petitioners 2 and 3, children of the deceased, are entitled to an

amount of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand

Only) each with accrued interest and the respondent No.4, father

of the deceased, entitled to Rs.75,000/- (Rupees Seventy Five

Thousand Only) with accrued interest and respondent No.5,

mother of the deceased, is entitled to Rs.1,00,000/- (Rupees One

M.A.C.M.A. No.3140 of 2014

Lakh only) with accrued interest.

21. The respondents 1 to 3 are directed to deposit the compensation

within two months from the date of receipt of a copy of the order.

On such deposit, respondents 4 and 5 i.e., parents of the

deceased are entitled to withdraw their respective shares by filing

an appropriate application before the tribunal.

22. After attaining the majority, the petitioners 2 and 3 i.e., children

of deceased are entitled to 50% of their respective shares with

accrued interest by filing petition before the Tribunal. The

remaining amount shall be kept in fixed deposit in any

Nationalized Bank for a period of two years.

23. The 1st petitioner i.e., wife of deceased is entitled to withdraw 50%

of her share with accrued interest by filing application before the

Tribunal. The remaining compensation shall be kept in fixed

deposit in any Nationalized Bank for a period of two years.

24. The Advocate's fee is fixed at Rs.15,000/- (Rupees Fifteen

Thousand Only).

25. Miscellaneous petitions pending, if any, in this appeal shall

stand closed.

__________________________________ JUSTICE T. MALLIKARJUNA RAO Date: 23.02.2023 KGM