Apsrtc, Rep.By Its Depot Manager, ... vs Gudivada Polamma And 3 Others
2023 Latest Caselaw 593 AP

            HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                         MACMA.No.665 OF 2012

JUDGMENT :

1. Aggrieved by the Order dated 06.07.2010 in MVOP.No.529 of 2007

passed by the Chairman, Motor Accident Claims Tribunal - Cum -

District Judge, Vizianagaram, (for short 'the Tribunal', the appellants

who arrayed as respondents 2 and 3 in MVOP.No.529 of 2007 filed

this appeal questioning the correctness of the award.

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

arrayed in MVOP.No.529 of 2007.

3. The claimant's case is that on 08.11.2006, one Gudivada Ramu

(hereinafter referred to as 'the deceased'), after completing his work

at Modavalasa, boarded an Auto to go to Vizianagaram. When the

said Auto reached Shivajipalem at about 03.25 PM, an A.P.S.R.T.C.

D.G.T. Bus bearing No. A.A.Z./511 (hereinafter referred to as 'the

offending bus') came from the opposite direction, driven by the 1 st

respondent in a rash and negligent manner at high speed and even

without blowing any horn or following the traffic rules dashed the

said Auto. As a result, the deceased died on the spot. A case was

registered in Crime Number 194 of 2006 for the offence under

Section 337, 338 and 304-A of I.P.C. by Traffic P.S., Vizianagaram,

against the offending bus driver, i.e., 1st respondent.

4. The 1st respondent, the driver of the offending bus, remained exparte.

5. Respondents 2 and 3 filed a counter, denying all the petition

MACMA.No.665 of 2012

particulars and contending that the alleged offending bus driver was

not at fault. The driver revealed that on 18.11.2006, he went with the

D.G.T. goods vehicle to purchase the material for the canteen from

the local market and proceeded towards the Zonal Work Shop. When

he reached Pradeep Nagar, he observed that an Auto bearing

No.AP31-X-7084 coming at high speed without following the rules

and overtaking another auto, suddenly came to the right side at high

speed. The 1st respondent observed the same, then swerved the bus

to the right side of the road, intending to avoid an accident, but the

Auto driver could not control the speed of the Auto and directly came

and hit the front bumper portion of the offending bus. The entire

rashness and negligence are on the part of the Auto driver but not on

the part of the offending bus driver. The Auto driver did not possess

a valid driving licence at the time of the accident. The seating

capacity of the Auto is 4 members, including the driver, but contra to

that, there were more than 8 passengers in the Auto. At the time of

the accident, two passengers in the Auto sat on both sides of the

Auto driver, which caused difficulty to the driver in driving the Auto

on a heavy traffic road. The petition is bad for the non-joinder of the

owner and insurer of the Auto. The compensation claimed is

excessive.

6. Based on the pleadings, the Tribunal formulated the relevant issues.

On behalf of claimants, PWs.1 to 4 got examined and marked Exs.A1

MACMA.No.665 of 2012

to A5 and Exs.X1 and X.2. On behalf of the respondents, RW.1 got

examined, and no documents were marked.

7. After considering the evidence adduced on behalf of both sides, the

Tribunal has found that the accident occurred due to rash and

negligent driving of the offending vehicle's driver and granted

compensation of Rs.7,68,000/- with interest at 6% per annum

against the respondents 2 and 3, making them jointly and severally

liable to pay the compensation.

8. Heard the arguments of learned counsel for the appellants and

respondent and perused the record.

9. Learned counsel for the appellants argued that the Tribunal failed to

see that the entire rash and negligent was on the part of the Auto

driver but not on the part of the offending bus driver; the driver of

the Auto who caused the accident was not possessing valid driving

licence at the time of the accident; the owner and insurer of the Auto

are necessary parties to the claim petition; the Tribunal erred in

fixing the compensation excessively; the multiplier applied by the

Tribunal is not correct one.

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

findings and observations of the learned Tribunal.

11. Now the points for determination are:

1. Whether the Tribunal is justified in holding that the accident occurred due to the negligence of the offending vehicle's driver or negligence of the Auto driver contributed to the accident?

MACMA.No.665 of 2012

2. Whether the quantum of compensation fixed by the Tribunal is just and reasonable?

POINT NO.1 :

12. The 1st petitioner was examined as PW.1. She deposed about the

manner of the accident; admittedly, she was not an eyewitness to the

accident. The claimants examined PW.2 - B.Sanyasi, to prove the

manner of the accident. PW.2's evidence shows that on 08.11.2006,

he boarded the Auto at Modavalasa village to go to Vizianagaram.

When the Auto reached Sivaji Nagar at about 03.25 PM, the

offending bus came from the opposite direction, driven by the 1 st

respondent rashly and negligently, and dashed the Auto. Though

PW.2 was cross-examined, nothing was elicited to discredit his

evidence. In the cross-examination, he deposed that he also

sustained some injuries in the accident. Ex.A1 - F.I.R. shows that

Jola Murali Krishna gave a report about the accident, and the police

registered a case against the offending bus driver. The contents of

F.I.R. corroborate the evidence of PW.2.

13. A perusal of Ex.A1 shows that the accident occurred on 08.11.2006

at 15.25 hours, and the information was received at the police

station on the same day at 17.30 hours. There is a specific recital in

Ex.A1 attributing that the accident occurred due to negligent driving

of the driver of the R.T.C. bus. In support of his case, the 1 st

respondent was examined as RW.1 though he remained ex parte in

MACMA.No.665 of 2012

O.P. proceedings; he has not filed the counter, explaining his stand

regarding the manner of the accident. Thus the evidence of RW.1 is

without any basis of the pleadings. He has not explained why he had

not filed the counter disputing the manner of the accident as pleaded

in the claim petition. The evidence of RW.1 shows that he did not

report to the police against the auto driver attributing that the

accident occurred due to his negligence. Except for the self-serving

testimony of RW.1 without supporting the pleadings, no other

evidence was let in support of the respondent's case. Ex.A3-M.V.I

report shows that the accident did not occur due to a mechanical

defect of the vehicle.

14. A perusal of the contents of the Ex.A4-charge sheet shows that police

also found fault with the offending bus driver. As per Ex.A4, the 1 st

respondent negligently drove the offending bus, tried to take a

Rickshaw and dashed against the Auto.

15. The normal rule is for the claimants to prove the negligence. But in

accident cases, hardship is caused to the claimants as the true 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

respondents to establish the accident was due to some other cause

than his negligence.

16. No reliable evidence is placed by the respondents to show that the

contents of the charge sheet are incorrect. In the case of K.Rajani

MACMA.No.665 of 2012

and others, V. M.SatyanarayanaGoud and others1, the Hon'ble

High Court is pleased to observe 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".

17. In the case of Bheemla Devi V. 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 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".

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

charge sheet against the offending bus driver without conducting a

proper investigation. It is also difficult to hold that the Police Officer

fabricated a case against the 1st respondent.

19. 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. As such, it

is by now well settled that even F.I.R. or Police Papers, when made

2015 ACJ 797

2009 ACJ 1725 (S.C.)

MACMA.No.665 of 2012

part of a claim petition, can be looked into for giving a finding in

respect of the happening of the accident. The preponderance of

probabilities is the touchstone for concluding rashness and

negligence, as well as the mode and manner of happening.

20. The reading of the documents placed before the Tribunal clearly

shows that the accident occurred due to the rash and negligent

driving of the offending bus driver. When it contends that the

accident happened due to an Auto driver's negligence, 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

claimants' case regarding the manner of the accident and also

accepted the observations made by the Investigating Officer in the

charge sheet making the offending bus driver responsible for the

accident. As already observed, the contents of the charge sheet also

support the case of claimants regarding the manner of the accident.

No material was placed by the appellants to show that the accident

occurred due to the rash and negligent driving of the auto driver, as

contended. Upon carefully reading the material on record, this court

believes that the Tribunal has correctly appreciated the evidence on

record.

21. There is nothing on record to show that the auto driver contributed

to the accident, so the non-impleadment of the insurer and owner of

the Auto does not affect the claim of the claimants. Nothing suggests

MACMA.No.665 of 2012

that the accident occurred due to carrying more passengers in the

Auto than the limit prescribed.

22. Upon careful reading of the material on record, this court views that

the Tribunal has perfectly appreciated the evidence on record and

findings of the Tribunal that the accident occurred due to negligence

on the part of the offending bus driver holds good.

POINT No.2 :

23. The Tribunal has given a finding regarding the age of the deceased

was 37 years, based on the evidence of PW.4, who is working as

Junior Assistant in the office of Commandant 5th A.P.S.P.,

Vizianagaram and Ex.X1-copy of service roll. The said finding of the

Tribunal is not disputed by the other side.

24. It is not in dispute that the deceased worked as a Constable in the

Prohibition and Excise Department, Vizianagaram and his net pay of

Rs.6,775/- per month as per Ex.A5-Salary certificate. But the

Tribunal rounded it off to Rs.6,000/-. After deducting 1/3rd of the

earnings towards the personal expenses of the deceased, the annual

contribution of the deceased worked out to be Rs.48,000/-. The

claimants are the parents and sisters of the deceased. In the facts of

the case, it is submitted that the Tribunal ought to have deducted

half of the deceased's earnings, which comes to Rs.36,000/-. The

multiplier applicable for the age group of 36-40 years is '15' as per

MACMA.No.665 of 2012

Sarla Verma and others Vs. Delhi Transport Corporation3. The

Tribunal has not awarded a future prospectus.

25. In National Insurance Company Limited Vs. Pranay Sethi4,

wherein it is held that, 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 years, 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 and 60 years old, the addition should be 15%. Given

the same, the claimant's monthly earnings, including a future

prospectus, can be assessed at Rs.36,000/- + 50% of Rs.36,000/- =

Rs.54,000/-. Therefore, the loss of earnings would arrive at an

amount of Rs.8,10,000/- (Rs.54,000/- x 15). But the Tribunal has

awarded an amount of Rs.7,68,000/-. The claimants have not

preferred to appeal, questioning the quantum of compensation

awarded by the Tribunal. In the facts of the case, at any stretch of

the imagination, it cannot be said that the Tribunal awarded

excessive compensation as contended by the appellants.

26. In view of the aforementioned discussion, I do not find any substance

in the appeal to interfere with the impugned Order in the present

appeal.

27. Accordingly, the appeal is devoid of merits and is hereby dismissed

2009 ACJ 1298

2017 ACJ 270

MACMA.No.665 of 2012

without costs, and the Order passed by the Tribunal dated

06.07.2010 in M.V.O.P. No.529 of 2007 is hereby confirmed.

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

__________________________________ JUSTICE T.MALLIKARJUNA RAO Date :03.02.2023 SAK

MACMA.No.665 of 2012

HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

MACMA.No.665 of 2012 Date: 03.02.2023

SAK