Shaik Meeravali And Another vs K. Ramesh And Another
2023 Latest Caselaw 847 AP

        HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO


                    M.A.C.M.A. No.567 OF 2013

JUDGMENT:

1. Aggrieved by the Judgment and decree dated 23.03.2007 in

M.V.O.P. No.284 of 2005 passed by the Chairman, Motor

Accidents Claims Tribunal-cum-III Additional District Judge,

Guntur (for short, "the tribunal"), whereby the tribunal

awarded an amount of Rs.50,000/- under no-fault liability,

the claimants have preferred the present appeal seeking

enhancement of compensation.

2. For convenience, the parties herein will be referred to as

arrayed in the M.V.O.P.

3. The claimants have filed a petition under Section 163-A of the

Motor Vehicles Act seeking compensation of Rs.2,00,000/- on

account of the death of their daughter Shaik Mumtaz Begum,

aged 15 years, in a motor vehicle accident that occurred on

24.08.2004. From now on, the said Shaik Mumtaz Begum

will be referred to as "the deceased''.

4. It is the case of the claimants that on 24.08.2004, the

deceased, along with her mother, were proceeding in an auto

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bearing No.AP 07 X 8383 (hereinafter referred to as "the

offending vehicle") at 7.00 PM, from Brindavan Gardens to

their house at Swarna Bharathi Nagar, Guntur Town, on the

way to Dakshinya school, the offending vehicle involved in the

accident, as a result of which the deceased sustained multiple

injuries. Immediately, she was shifted to the Government

Hospital, where she died while undergoing treatment on the

same day.

5. The first respondent, the owner of the offending vehicle, has

remained ex parte.

6. The second respondent, the insurer of the offending vehicle,

filed a written statement denying the manner of the accident,

age, and income of the deceased. It is further contended that

the offending vehicle was not in a fit condition to ply on the

road and not having a permit from RTO and its driver also not

having a valid driving licence, and also the insurance

company was not aware of the registration of the crime

against the auto.

7. Based on the pleadings, the tribunal framed relevant issues.

To substantiate the claim, during the trial, on behalf of the

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claimant, P.Ws.1 and 2 were examined and got marked

Exs.A.1 to A.5. On behalf of the respondents, R.W.1 was

examined and got marked Exs.B.1 and B.2.

8. After evaluating the evidence on record, on issue No.1, the

tribunal held that the accident not occurred due to the rash

and negligent driving of the offending vehicle's driver, but due

to the negligent driving of the tractor and trailer bearing

No.AP 7 U 1780 and 1781, and on issue No.2, the tribunal

awarded an amount of Rs.50,000/- under no-fault liability.

Hence, the appeal.

9. Heard the learned counsel appearing for both parties.

10. Learned counsel for the appellants/ claimants contended that

the tribunal's finding regarding the rash and negligent driving

of the tractor and trailer is not supported by any evidence.

The tribunal erred in disbelieving the oral testimony of

eyewitnesses who are also traveling along with the deceased

in the offending vehicle and erroneously awarded

compensation only under no-fault liability.

11. The learned counsel for the second respondent has supported

the findings and observations of the tribunal.

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12. Upon hearing the argument of both the learned counsel and

upon perusal of the material evidence on record, the points

that arise for consideration are,

I. Whether the tribunal erred in holding that the accident did not occur due to the rash and negligent driving of the offending vehicle (auto).

        II.   Whether the tribunal awarded just and
              reasonable    compensation or   require
              modification.


POINT No.I:

a. During the trial, to substantiate their claim, the first claimant

himself was examined as P.W. 1. He is the husband of the

second claimant. It is not in dispute that the deceased is their

daughter, and she was about 15 years old at the time of the

accident. According to the evidence of P.W.1, on 23.08.2004 at

about 7 pm he and his wife, the deceased, along with one old

lady were proceeding in the offending vehicle from Brindavan

Gardens to go to their house. On the way between JKC college

and Dakshinya School, the offending vehicle's driver drove it in a

rash and negligent manner and dashed the tractor, which was

coming in the opposite direction. He testified that his daughter

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earned Rs.1,500/- per month as a maid-servant in a private

home. During cross-examination, it elicits that he gave a

complaint to the police under the original of Ex. A.2. The

claimants relied on Ex.A.1, a certified copy of F.I.R. and Ex.A.2,

a certified copy of the original complaint. It is suggested to

P.W.1 in the cross-examination that the accident occurred due

to the fault of the tractor driver, but not the fault of the auto

driver. Except for making a suggestion in the cross-examination

to discredit his testimony, no evidence is put forth by the second

respondent. On the other hand, it is also suggested that the

tractor was falsely implicated in place of the auto, in collusion

with the first respondent, having known that it is covered under

Ex.B.1 insured by the second respondent.

b. The claimant also examined P.W.2, inmate of the auto. According

to his evidence, on the date of the accident, at about 7 pm she

and the deceased, as well as her mother boarded the offending

vehicle at Brindavan gardens to go to their locality. On the way

to Dakshinya school, the offending vehicle's driver drove it at

high speed in a rash and negligent manner and dashed the

tractor which was going ahead. The evidence of P.W.1 is

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supported by the evidence of P.W.2 regarding the manner of the

accident. It is elicited in the cross-examination of P.W.2 that the

tractor was coming in the opposite direction when the offending

vehicle dashed it; but by mistake, in the chief examination, she

stated that the auto dashed the tractor, which was going ahead,

and she gave evidence in the criminal case, which is filed against

the offending vehicle's driver.

c. On behalf of the second respondent, the legal assistant at the

National Insurance Company, Guntur, was examined as R.W.1.

In his evidence, he also stated that the complaint given by P.W.1,

who is the deceased's father by name Shaik Meera Vali, to the

police, Guntur Taluk police station registered a case under

section 304-A IPC against the tractor's driver and filed a charge

sheet against him under Section 304-A of IPC and Section 196

and 194 of the M.V. Act. So it is proved that the accident

occurred due to the rash and negligent driving of the tractor, but

not due to the negligence of the offending vehicle (auto).

d. Given the evidence of R.W.1, this court has carefully gone

through the complaint and the charge sheet relied on by the

claimants. The claimants relied on Ex.A.1, F.I.R., which was

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lodged by the first claimant, the deceased's father, who claimed

to have been travelling along with his daughter at the time of the

accident. As per the contents of Ex.A.1, F.I.R., the accident

occurred on 23.08.2004 at 7.00 p.m., and the complaint was

given on 24.08.2004 at 10.00 a.m. alleging that while he and his

wife and the deceased and another person Valiam Bi residing in

their colony, were travelling in the auto at about 7.00 p.m., on

23.08.2004, a tractor bearing No.AP 7 U 1780 came in the

opposite direction rashly and negligently and hit the auto on its

right side. P.W.1 has not explained why he has lodged such a

report with false contents. After investigation also, the police

filed a charge sheet alleging that on 23.08.2004 at about 7.00

PM while L.Ws.1, 2 and 4 and the deceased were going home in

an auto bearing No.AP 7 X 8383 being driven by L.W.3 when

they reached Dakshinya school, the tractor and trailer bearing

No.AP 7 U 1780 and 1781 in a rash and negligent manner while

coming from summerpet side and hit the right rear portion of the

auto bearing No.AP 7 X 8383 resulting which the deceased, who

was travelling by sitting on the right rear seat of the auto falling

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down on the road and the tractor and trailer running over the

right hand of the deceased.

e. The claimants relied on Ex.A.1, F.I.R and Ex.A.3, charge sheet in

support of their case to prove the manner of the accident. While

dealing with similar circumstances in Oriental Insurance Co.,

Ltd., Vs. Premlatha Shukla and others 1 the Apex Court, in

paragraph 14, observed that

"14. Once a part of the contents of the documents admitted in evidence, the party bringing the same on record cannot be permitted to turn around and contend that the rest of contents thereof had not been proved."

f. The first claimant lodged a complaint against the first

respondent alleging that the accident occurred due to the

negligence of the tractor's driver, whereas in the claim petition,

they have changed their version and attributed that the accident

occurred due to the negligence of the auto driver. It is clear from

the record that the claimants have not filed the claim petition

against the tractor' driver, owner and insurer of the tractor and

2007 (4) A.L.D. 85 S.C.

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they have not offered the reason for not filing the claim petition

against the insurer of the tractor.

g. As seen from the record, it is the specific case of the claimants

that the deceased sustained multiple injuries while proceeding in

the offending vehicle along with her parents, the claimants

herein. The said case of the claimants is also not disputed by the

insurer of the offending vehicle. The tribunal has given a finding

that the accident occurred because of the rash and negligent

driving of the tractor's driver by hitting the auto in which the

claimants and some others were travelling. The tribunal has

also observed that the death of the deceased occurred while the

offending vehicle (auto) bearing No.AP 07 X 8383 was plying on

the road. Against the said finding of the tribunal, the insurer

has not preferred any appeal. The said finding given by the

tribunal has attained finality. Thus it is established that the

accident occurred due to the injuries sustained in the accident.

It is also evident by Ex.A.3-charge sheet, Ex.A.4-inquest report

and Ex.A.5-postmortem examination report. The tribunal

granted Rs.50,000/- under no-fault liability under Section 140

of the M.V. Act. The tribunal's finding is that the first

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respondent is the owner of the auto and the second respondent

is the insurer of the offending vehicle and it is also established

by Ex.B.1- insurance policy. Thus, it is clear from the record

that the offending vehicle was insured with the second

respondent and the insurance policy was in subsistence at the

time of the accident. As seen from Ex.B.1, policy, a premium

amount of Rs.555/- was collected towards liability to three

passengers. Admittedly, the deceased was travelling in the auto

as a passenger at the time of the accident. The material on

record shows that the accident occurred due to the negligence of

the tractor and trailer, but not due to the negligence of the auto

driver. It is the contention of the insurance company that the

accident did not occur due to the negligence of the auto driver, it

cannot be saddled with the liability to pay compensation

amount, and the same is accepted by the tribunal. The finding

given by the tribunal is under challenge.

h. While dealing with the plea of negligence on the part of the victim

i.e. plea of contributory negligence in a claim under Section 163-

A, in Shivaji and another v. Divisional Manager, United India

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Insurance Company Limited and others2, the Apex Court held

at paragraph 4, that

"4. The issue which arises before us is no longer res integra and is covered by a recent judgment of the three Judges of this court in United India Insurance Co. Ltd. v. Sunil Kumar [(2019) 12 SCC 398], wherein it was held that to permit a defence of negligence of the claimant by the insurer and/ or to understand Section 163-A of the Act as contemplating such a situation, would be inconsistent with the legislative object behind introduction of this provision, which is "final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability were taking an unduly long time". The Court observed that if an insurer was permitted to raise a defence of negligence under Section 163-A of the Act, it would "bring a proceeding under Section 163-A of the Act on a par with the proceeding under Section 166 of the Act which would not only be self contradictory but also defeat the very legislative intention". Consequently, it was held that in a proceeding under Section 163-A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation."

i. It is settled law in a claim under Section 163-A of the M.V. Act, it

is not necessary for the claimant to establish any act of

negligence on the part of the offending vehicle's driver. It is not

necessary to plead that the death had occurred owing to any

(2009) 12 SCC 395

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wrongful act or neglect or default of the owner of the offending

vehicle.

j. Sub-section (1) of Section 163-A contains a non-obstante clause

in terms whereof, notwithstanding anything contained in this Act

or in any other law for the time being in force or instrument

having the force of law, the owner of the motor vehicle or the

authorized insurer shall be liable to pay in the case of death or

permanent disablement due to accident arising out of the use of

motor vehicle, compensation, as indicated in the second

schedule, to the legal heirs or the victim, as the case may be.

k. Thus, it is clear that the claimant need not plead or prove the

aspect of negligence in a claim under Section 163-A of the M.V.

Act. When the claimant need not plead or prove the aspect of

negligence, the issue of negligence would not arise while

considering the claim under Section 163-A of the M.V. Act.

l. In Shahazadi Bee and Others v. The Managing Director,

APSRTC and another3, the Apex Court came to the conclusion

that since the claim was made under Section 163-A of the Motor

Vehicles Act, 1988, the claimants need not plead and prove the

(2004) ACJ 1773

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negligence of any other person and it is sufficient if it is proved

that the vehicle is involved in the accident.

m. Following the principles of law laid down by the Apex Court, this

court views that in a petition filed under section 163-A of the

M.V. Act, wherein the cause of the accident is not at all the

question to be decided and mere involvement of the vehicle is

sufficient to entitle a person claiming compensation to seek the

same. When two vehicles are involved in an accident and the

passenger or driver of one vehicle makes an application invoking

Section 163-A of the M.V. Act, against the driver, owner and

insurer of the other vehicle, no issue relatable to the negligence

at the hands of the driver of another vehicle would arise for

decision. Therefore, it would be necessary to quote the scheme

under Section 163-A, and the proof of negligence is irrelevant.

Consequently, contributory negligence is also irrelevant. This

court views that an examination of section 163A of the M.V. Act

indicates that what is required to be made good is the factum of

death or injuries of permanent disability in nature having

occurred to a person due to the use of the motor vehicle on the

road involved in the accident and irrespective of who has

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contributed or who was negligent for the cause of the accident,

owner and the insurer of the vehicle being made liable to pay

compensation as per the structured formula as indicated in the

second schedule of the M.V. Act.

n. In view of the foregoing discussion, this court views that the

tribunal erred in not fixing the liability on the insurer of the

offending vehicle (auto) as the material on record establishes

that the accident occurred while the deceased was travelling in

the offending vehicle (auto) along with her parents (claimants)

and some others and the claimants are able to establish that the

accident occurred while the auto was being used by the deceased

and others. Accordingly, the point is answered.

POINT No.II

a. As regards the quantum of compensation, the tribunal awarded

only an amount of Rs.50,000/- under no-fault liability. In a

claim petition under section 163-A of the M.V. Act, the

compensation should be computed in a structured formula

basis, and hence the compensation awarded by the tribunal

warrants interference.

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b. It is the case of the claimants that the deceased was 15 years old

at the time of the accident, working as a servant maid and used

to earn Rs.1,500/-. But no documentary evidence is filed to

prove the age, avocation and earnings of the deceased. The

claimants relied on the post-mortem examination report-Ex.A.5

and inquest report-Ex.A.4 to show the claimant's age. The said

documents show that the deceased was 15 years old at the time

of the accident. As there is no documentary evidence put forth,

this court is inclined to consider the notional income as

Rs.15,000/-per annum.

c. At this juncture, it is relevant to refer to the observations made

by the Apex Court in Rajendra Singh & Ors. vs National

Insurance Co.Ltd. & Ors4. As seen from the judgment, in the

said case, tribunal assessed the notional income of the minor

child. However, the tribunal deducted 50% for personal

expenditure with a multiplier of 15. Without disturbing the said

finding, The Hon'ble Apex Court observed, in paragraph 13, that

the income of the minor child is incapable of precise fixation and

observed further that they find no reason to interfere with the

assessed notional income of the second deceased. Considering

2020 ACJ 2211

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the grant of the future prospectus for the deceased child aged

about ten years, in R.K.Malik and others vs Kiran Paul5, the

Hon'ble Apex Court held, in paragraph 31, as follows:

"31. A forceful submission has been made by the learned Counsels appearing for the claimants-appellants that both the Tribunal and the High Court failed to consider the claims of the appellants concerning the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below. On perusal of the evidence on record, we find merit in such submission that the Courts below have overlooked that aspect of the matter while granting compensation. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, it must also grant compensation with regard to the prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation."

d. In National Insurance Company Limited v. Pranay Sethi and

others6 it was observed that where the deceased was a bachelor

and the claimants are the parents; the deduction follows a

different principle. In regard to a bachelor's, normally, 50% is

deducted as personal and living expenses because it is assumed

that a bachelor would tend to spend more on himself. Further

2009 ACJ 1924

(2017) 16 SCC 680

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observed that taking into consideration the cumulative factors,

namely, the passage of time, the changing society, escalation of

price, the change in the price index, the human attitude to follow

a particular pattern of life, etc., an addition of 40% of the

established income of the deceased towards future prospects.

e. By following the principles laid down by the Hon'ble Apex Court,

this Court considers that 50% of the income is to be deducted

towards personal expenses and 40% of the income to be added

towards future prospectus. On deduction of 50% of the annual

income towards personal expenses of the deceased, an amount

of Rs.7,500/- can be considered, and 40% of the annual income

under the future prospects arrived at Rs.3,000/-(7,500 x 40%),

in total, this Court considered the annual income at Rs.10,500/-

(Rs.7,500/- +3,000/-), applied the multiplier '15', which is

provided in the second schedule of M.V. Act, for the persons up

to 15 years to assess the loss of dependency, and it would come

to Rs.1,57,500/- (10,500/- x 15). The claimants are also entitled

to an amount of Rs.2,000/- under the head funeral expenses. In

all, the claimants are entitled to an amount of Rs.1,59,500/-

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(1,57,500 +2,000). Out of which, the claimants are entitled to an

equal share. Accordingly, the point is answered.

13. In the result, the appeal is allowed in part without costs,

awarding the compensation of Rs.1,59,500/- with interest at

7.5% per annum from the date of petition till realisation to the

claimants against the respondents 1 and 2. Respondents are

directed to deposit the compensation within two months from

the date of receipt of a copy of this order. On such a deposit,

the claimants are entitled to withdraw their respective shares on

filing an appropriate application before the tribunal.

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

stand closed.

___________________________ T.MALLIKARJUNA RAO, J Dt.14.02.2023 BV