Ganguri Nagaraju And Anothers vs Ganguri Krishnavaeni And 3 Others
2023 Latest Caselaw 851 AP

         HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO


                  M.A.C.M.A. No.774 OF 2014

JUDGMENT:

1. Aggrieved by the order and decree dated 27.10.2011 in

M.V.O.P.No.112 of 2009 passed by the Chairman, Motor

Accidents Claims Tribunal-cum-V Additional District Judge,

Fast Track Court, East Godavari District, Rajahmundry, (for

short "the tribunal"), the respondents 4 and 5 therein have

preferred the present appeal, questioning the award passed by

the tribunal, for not granting compensation to them.

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

arrayed in the M.V.O.P.

3. The claimant filed a petition under Section 166 of the Motor

Vehicles Act read with Rule 455 of the Motor Vehicle Rules

claiming compensation of Rs.5,00,000/- on account of the death

of Shiva Shankar (hereinafter referred to as "the deceased") in a

motor vehicle accident that occurred on 24.07.2008. The

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claimant is the wife and respondents 4 and 5 are the parents, of

the deceased.

4. The claimant's case is that on 24.07.2008 at about 10.00 a.m.,

the deceased secured a TVS victor motorcycle bearing No.AP 5

AF 6618 from his friend to go to Digamarru village, Palakollu

Mandal, to visit his elder sister's house, deceased, his mother,

and his niece, proceeded towards Digamarru village on a

motorcycle; when they reached nearby Shivanjaneya nursery,

Pottilanka village, a Ford Icon Car bearing No.AP 37 AK 7755,

(hereinafter referred to as "offending vehicle") driven by the first

respondent in a rash and negligent manner at high speed

without blowing the horn, came in the opposite direction from

Ravulapalem to Vemagiri in the wrong route and hit the

motorcycle on which the deceased, his mother and a minor girl

were travelling. As a result of the accident, all three on the

motorcycle fell on the road. The rider of the motorcycle, the

deceased herein, sustained fatal injuries and died on the spot.

5. Respondents 1 to 3, the driver, owner and insurer of the

offending vehicle, have filed their respective written statements.

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Respondents 4 and 5, parents of the deceased, have filed a

written statement.

6. Respondents 1 to 3, in their respective written statements,

contended that the deceased failed to follow the motor vehicle

rules and allowed the triple ride on a two-wheeler. As such, the

claimant is not entitled to any compensation.

7. Respondents 4 and 5 in the written statement contended that

the allegation made in the claim petition that they expressed

their wish that they do not want money to allot their share is

denied. The deceased is only their son, and they depend on the

earnings of the deceased, and the 4th respondent is unable to

earn money by rickshaw pulling. The 5th respondent is unable

to move from the bed. The 4th respondent is old aged and unable

to pull a rickshaw for their livelihood. The claimant went to her

parents' house by leaving them, she filed the claim with false

allegations.

8. Based on the pleadings, the tribunal framed relevant issues. To

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

claimant, P.W.1 got examined, marked Exs.A.1 to A.5; on behalf

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of respondents, R.Ws.1 and 2 got examined, marked Exs.B.1

and B.2. After evaluating the evidence on record, the tribunal

held that the accident occurred due to the rash and negligent

driving of the offending vehicle's driver; awarded compensation

Rs.3,15,600/- against respondents 2 and 3 with interest at 7.5%

P.A. from the date of petition till realization. However, as seen

from the order, the tribunal has not awarded compensation to

the parents of the deceased by giving certain reasons.

Respondents 4 and 5 have preferred the present appeal with a

request to award compensation in their favour.

9. Heard both the learned counsel.

10. During the hearing, learned counsel for the appellants

(respondents 4 and 5 in the M.V.O.P.) contended that the

appellants were residing along with the deceased. They were

solely dependent on the deceased and Respondent No.1. Due to

his old age, is unable to work. The tribunal failed to see that the

deceased was the only son of the appellants; they have lost their

livelihood on account of the death of the deceased, and being the

old parents; they are also entitled to compensation along with

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the first respondent (the claimant in the M.V.O.P.). It is

submitted that they had dealt with numerous problems while

bringing their son and that they performed the marriage of their

son with the claimant just one month before the accident. The

claimant who is the deceased's wife ignored the appellants who

had sacrificed their lives to bring up the deceased.

11. Learned counsel for the first respondent (the claimant in

M.V.O.P.) and respondents 2 to 4 (respondents 1 to 3 in

M.V.O.P.) have supported the findings and observations of the

tribunal.

12. Now the point for determination is whether the tribunal is

justified in not awarding the compensation to the parents of the

deceased.

POINT:

a. The tribunal's finding that the accident occurred due to the rash

and negligent driving of the offending vehicle is not disputed by

the respondents. Furthermore, the finding of the tribunal that

the death of the deceased occurred due to the injuries sustained

in the accident is also not disputed. It is also evident from

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Ex.A.2, a copy of the charge sheet; Ex.A.3, a copy of the inquest

report; and Ex.A.5, a copy of post-mortem examination report.

b. The finding of the tribunal that the first respondent is the

offending vehicle's driver, the second respondent is the offending

vehicle's owner and the third respondent is the offending

vehicle's insurer and as such respondents 2 and 3 are

vicariously liable to pay the compensation amount is also not

disputed by any of the parties. The quantum of compensation

fixed by the tribunal is also not disputed by the respondents.

c. It is the evidence of P.W.1 that respondents 4 and 5 are

financially sound; hence, they expressed their wish that no

compensation amount is allotted to their share. The counsel for

respondents 4 and 5 cross-examined the claimant, wherein it is

elicited that she, her husband and in-laws lived together; her

mother-in-law also received some injuries in the accident; her

mother-in-law is unable to attend any work due to her injuries

and due to old age. During the lifetime of her husband, they all

depended upon him for their livelihood. After her husband's

death (deceased herein), she went to her parent's house, as her

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in-laws have any other house property and they had no

permanent source of income for their livelihood. Her in-laws

have not given any document relinquishing their right to claim

compensation. It is further elicited in P.W.1's cross-examination

that, respondents 4 and 5 (parents of the deceased) are

depending on the earnings of the deceased, it disproves the

stand taken by the claimant in the claim petition as well as in

the chief affidavit that respondents 4 and 5 are financially sound

to meet their livelihood.

d. On the other hand, the tribunal has discussed in its order that

respondents 4 and 5 have also examined as R.Ws. 1 and 2 and

stated that they had financially sound, they need not want any

amount from this O.P. towards their share as they are not

claiming any share in the O.P. In view of the said evidence of

R.Ws.1 and 2, entire claim amount is allotted to the claimant.

The said observation is contrary to the evidence elicited in

P.W.1's cross-examination.

e. In view of the said observation, this court has gone through the

evidence of R.Ws.1 and 2. R.W.1, G.Govindamma (Respondent

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No.5 in M.V.O.P.), stated in her evidence that the deceased was

their only son, they were depending upon the earnings of the

deceased, and they lived jointly along with the deceased. In the

cross-examination, R.W.1 stated that for the last five months,

her husband did not attend to rickshaw pulling, earlier he used

to attend; she denied the suggestion that they were not

depending upon the earnings of the deceased. It is suggested to

R.W.1 in the cross-examination that still her husband is a

rickshaw puller and used to earn something and both can

independently live on the income of her husband. Coming to the

evidence of R.W.2, Ganguri Nagaraju (respondent No.4 in

M.V.O.P.), he also stated in similar lines to the evidence of

R.W.1. In the cross-examination he stated that her daughter-in-

law at present residing at her parents' house without any

avocation.

f. The evidence of R.Ws.1 and 2 shows that the finding of the

tribunal that they deposed that they are financially sound and

they need not want any money from this O.P. is totally incorrect.

A reading of the evidence of R.Ws.1 and 2 shows that they have

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not deposed like so, as observed in the tribunal. It shows

without going through the evidence of R.Ws.1 and 2, the

tribunal has given incorrect findings. If the tribunal has gone

through the counter, depositions of respondents 4 and 5, and

cross-examination of P.W. 1, such a finding could not be given.

g. Recording of such findings, without perusal of the evidence of

R.Ws.1 and 2 is unwarranted. Before giving the said finding, the

tribunal should have carefully gone through the evidence of

R.Ws.1 and 2. When the evidence of R.Ws.1 and 2 is clear and

there is no ambiguity in their evidence, it is incomprehensible

and unimaginable as to why such an incorrect finding was given

by the tribunal depriving the old parents of the deceased to get

their legitimate share in the compensation amount.

h. This court reiterates that recording such finding by the tribunal

without proper look at the evidence is highly regrettable and

objectionable. In the said facts of the case, this court finds that

the tribunal has given incorrect finding regarding the evidence of

R.Ws.1 and 2 though they have not deposed like so. They have

clearly stated in their evidence that they have no means for their

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livelihood, they were purely depending on the earnings of the

deceased and the said version of R.Ws.1 and 2 was corroborated

with the version of P.W.1's cross-examination. In the said facts

of the case, the tribunal erred in not granting compensation

amount to respondents 4 and 5. Grant of compensation will not

necessarily bar the parents to claim prospective loss and it will

be valid. A reasonable expectation of pecuniary benefit should

be entertained by the person who sues.

i. The Motor Vehicles Act is beneficial and welfare legislation. In

this case, the tribunal erred in not awarding compensation to

the parents of the deceased without reading the evidence

adduced by the claimant and the respondents 4 and 5.

j. Hence this court is inclined to award compensation of

Rs.75,000/- with interest at 7.5% P.A. to the mother of

deceased/5th respondent and Rs.50,000/- to the father of

deceased/4th respondent, out of the compensation awarded by

the tribunal. Accordingly, the point is answered.

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

a compensation of Rs.75,000/- (Rupees seventy five thousand

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only) with interest at 7.5% P.A. from the date of petition till

realization to the share of respondent No.5 and Rs.50,000/-

(Rupees fifty thousand only) to the share of respondent No.4, out

of the compensation awarded by the tribunal. The appellants/

respondents 4 and 5 are permitted to withdraw their respective

shares on filing 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