The vs Pranay Sethi 1
2023 Latest Caselaw 3526 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No.455 of 2015
                             and
                CROSS OBJECTIONS No.2 of 2015


COMMON JUDGEMENT:


      The appellant is 3rd respondent/Insurance company and the

respondents are petitioners and respondent Nos.1, 2 & 4 in

M.V.O.P.No.1330 of 2010 on the file of the Chairman, Motor

Accident Claims Tribunal-cum-VI Additional District Judge,

Visakhapatnam, questioning the legal validity of the order of the

Tribunal. The claim petitioners filed cross objections for

enhancement of the compensation.

2. For the sake of convenience, both the parties in the appeal will

be referred to as they are arrayed in the claim petition.

3. The claim petitioners filed a petition under Section 166 of the

Motor Vehicles Act, 1988 read with Rule 455 of the A.P.M.V. Rules,

1989 claiming compensation of Rs.30,00,000/- for the death of

Veerni Veera Venkata Satya Appalaswamy, who is husband of 1st

VGKR,J MACMA No.455 of 2015 & CO No.2 of 2015

petitioner, father of 2nd petitioner and son of petitioner Nos.3 & 4, in

a motor vehicle accident that occurred on 17.06.2009.

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

as follows:

On 17.06.2009 the deceased was proceeding to Madugula on

a motor cycle bearing registration No.AP 9P 2808 and when he

reached Peda Maduvu, Gajapathi Nagaram near Chodavaram at

about 11.30 a.m., a bus bearing registration No.AP 31Y 7899 being

driven by its driver in a rash and negligent manner came in opposite

direction and dashed the motor cycle of the deceased, as a result,

the deceased sustained multiple fractures and grievous injuries and

died on the same day while undergoing treatment in the hospital.

The 1st respondent is driver, the 2nd respondent is owner, the 3rd

respondent is insurer and the 4th respondent is hirer of the offending

bus. Therefore, all the respondents are jointly and severally liable to

pay the compensation to the petitioners.

5. Respondent Nos.1 and 2 were set ex parte.

VGKR,J MACMA No.455 of 2015 & CO No.2 of 2015

6. Respondent Nos.3 and 4 filed individual counters by denying

the manner of accident, age, occupation and income of the

deceased.

It is pleaded by the 3rd respondent/Insurance company that

there was no negligence on the part of the driver of the bus and the

accident occurred only due to rash and negligent driving of the

motor cycle by the deceased, therefore, the Insurance company is

not liable to pay compensation.

It is pleaded by the 4th respondent/APSRTC that the driver of

the offending bus was not employed by the 4th respondent and

thereby, there is no master and servant relationship between the

driver of the offending bus and the 4 th respondent. It is also pleaded

that the bus was taken on hire for a limited period under a hire

agreement and as per the terms of the hire agreement, the owner of

the bus is completely responsible for any claim in case of any

accident involved by the hired bus and the 3rd respondent being

insurer of the offending bus is liable for payment of the

compensation.

VGKR,J MACMA No.455 of 2015 & CO No.2 of 2015

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

following issues were settled for trial by the Tribunal:

1) Whether Veerni Veera Venkata Satya Appalaswamy died in a motor accident that occurred on 17.06.2009 due to rash and negligent driving of RTC hired bus bearing No.AP 31Y 7899 by its driver?

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

3) To what relief?

8. During the course of enquiry in the claim petition, on behalf of

the petitioners, P.Ws.1 to 4 were examined and Exs.A.1 to A.9 were

marked. On behalf of respondent Nos.3 & 4, R.Ws.1 and 2 were

examined and Exs.B.1 to B.4 were marked.

9. At the culmination of the enquiry, based on the material

available on record, the Tribunal came to the conclusion that the

accident occurred only due to rash and negligent driving of the

driver of the offending bus and, accordingly, allowed the petition in

part granting an amount of Rs.15,20,000/- with proportionate costs

and interest @ 7.5% p.a. from the date of petition till the date of

VGKR,J MACMA No.455 of 2015 & CO No.2 of 2015

deposit against respondent Nos.3 and 4. Questioning the legal

validity of the said order, the appellant/Insurance company preferred

the present appeal, while the petitioners filed the cross objections

for enhancement of the compensation.

10. Heard learned counsels for both the parties and perused the

record.

11. Learned counsel for the appellant/Insurance company

contended that the owner of the offending bus should not be held

liable, as the bus was under hire with the 4th respondent/APSRTC at

the relevant point of time and the monthly income arrived at by the

Tribunal is on high side.

12. Learned counsel for the cross objectors/petitioners contended

that the Tribunal failed to award just compensation under various

heads claimed by the petitioners.

13. Now, the points for determination are:

1) Whether the order of the Tribunal needs any interference? and

VGKR,J MACMA No.455 of 2015 & CO No.2 of 2015

2) Whether the petitioners are entitled to enhancement of compensation as prayed for?

14. POINTS 1 & 2: In order to prove the rash and negligent

driving of the driver of the APSRTC hired bus, the petitioners relied

on the evidence of P.Ws.1 to 4. P.Ws.1 to 3 are not eye witnesses

to the accident. P.W.4 claimed to be the witness to the accident. He

deposed in his evidence that on 17.06.2009 he was coming from

Anakapalle to Chodavaram at about 11.30 a.m. and when he

reached Gajapathinagaram Junction, there is a deep curve and the

road is very narrow with trees on either side and the same is a

single road and at that time, the APSRTC hired bus came from

Chodavaram to Anakapalle at a speed of 70 to 80 kms. and dashed

the motor cycle of the deceased, who is coming from Anakapalle to

Chodavaram, as a result, the deceased fell down and his skull was

broken. He further deposed that the accident occurred due to rash

and negligent driving of the driver of the offending bus. In his cross-

examination, he denied the suggestion put to him that due to rash

and negligent riding of the motor cycle by the deceased the said

accident occurred and there is no fault on the part of the driver of

VGKR,J MACMA No.455 of 2015 & CO No.2 of 2015

the offending bus. The petitioners also relied on Ex.A.1-attested

copy of first information report, Ex.A.2-attested copy of post-mortem

certificate and Ex.A.3-attested copy of M.V.I. Report. Ex.A.1 goes to

show that a case was registered against the driver of the offending

bus. Ex.A.2 goes to show that the deceased died due to shock and

hemorrhage with head injury. Ex.A.3 discloses that the accident did

not occur due to any mechanical defects of the offending bus. The

evidence of P.W.4 coupled with Exs.A.1, A.2 and A.3 clearly proves

about the rash and negligent driving of the driver of the APSRTC

hired bus resulting in the accident. The Tribunal, on appreciating

the evidence on record, also came to the same conclusion. There is

no legal flaw or infirmity in the said finding given by the Tribunal.

15. Coming to the compensation, the Tribunal awarded an amount

of Rs.15,20,000/- towards compensation to the petitioners. The

case of the petitioners is that the 1st petitioner is wife, the 2nd

petitioner is minor son, and petitioner Nos.3 and 4 are parents of the

deceased, the deceased was aged about 32 years at the time of

accident and he worked as an Assistant Typist-cum-Computer

Operator in Chartered Constructions at Khammam and was drawing

VGKR,J MACMA No.455 of 2015 & CO No.2 of 2015

salary of Rs.15,000/- p.m. As per Ex.A.2-post mortem report and

Ex.A.9-inquest report, the deceased was aged about 35 years. But,

as per the material on record reveals that the deceased was aged

40 years 11 months and 16 days i.e., the deceased was aged 40

years by the date of accident. In order to prove the income of the

deceased, the petitioners relied on Ex.A.7-salary certificate of the

deceased issued by the Chartered Constructions, Khammam. But,

the petitioners failed to examine the person, who issued Ex.A.7-

salary certificate, as a witness. By giving cogent reasons, the

Tribunal arrived the monthly income of the deceased at Rs.10,000/-.

16. Since the authenticity of Ex.A.7-salary certificate is not proved

by the petitioners by examining the person, who issued that

certificate, as a witness before the Tribunal and since the

occupation of the deceased was Assistant Typist-cum-Computer

Operator, I am of the considered view that it is desirable to arrive the

monthly income of the deceased at Rs.9,000/- i.e., Rs.1,08,000/- per

annum. As per the decision of the Hon'ble Apex Court in

VGKR,J MACMA No.455 of 2015 & CO No.2 of 2015

National Insurance Company Limited Vs. Pranay Sethi 1 , 25%

from out of annual income has to be added towards future prospects,

since the deceased was aged 40 years at the time of accident and

accordingly, the annual income of the deceased is arrived at

Rs.1,35,000/- (Rs.1,08,000/- + Rs.27,000/-). The dependents on

the deceased are four in number. So, 1/4th from out of the annual

income has to be deducted towards personal expenses of the

deceased. Having deducted as such, the annual contribution to the

family members of the deceased is arrived at Rs.1,01,250/-

(Rs.1,35,000/- - Rs.33,750/-). As stated supra, the deceased was

aged 40 years and the relevant multiplier applicable to the age

group of the deceased is "15", as per the judgment of the Hon'ble

Supreme Court in Sarla Varma Vs. Delhi Transport Corporation2

and the loss of dependency is arrived at Rs.15,18,750/-

(Rs.1,01,250/- x multiplier '15'). In addition to that, an amount of

Rs.30,000/- is awarded towards loss of estate, Rs.30,000/- is

awarded towards loss of consortium to the 1st petitioner and

2017 (16) SCC 680

2009 (4) SCJ 91

VGKR,J MACMA No.455 of 2015 & CO No.2 of 2015

Rs.10,000/- is awarded towards funeral expenses of the deceased.

In total, the petitioners are entitled to a sum of Rs.15,88,750/-

towards compensation.

17. It is not in dispute by both sides that the offending bus was

owned by the 2nd respondent and insured with the 3rd

respondent/Insurance company under Ex.B.1-copy of insurance

policy and the policy was also in force as on the date of the accident,

the offending bus was given on hire to the 4 th respondent/APSRTC,

and the driver of the offending bus was having valid driving licence

at the time of accident. The Tribunal rightly fixed the liability on the

3rd respondent/Insurance company. Therefore, there is no need to

interfere with the said finding given by the Tribunal.

18. For the foregoing reasons, the appeal filed by the

appellant/Insurance company is dismissed. The cross objections

filed by the cross objectors/petitioners are allowed in part by

enhancing the compensation of Rs.15,20,000/- awarded by the

Tribunal to Rs.15,88,750/-. The petitioners are entitled to the

enhanced compensation of Rs.68,750/-, with interest at 7.5% p.a.

VGKR,J MACMA No.455 of 2015 & CO No.2 of 2015

thereon from the date of petition till the date of deposit as awarded

by the Tribunal. The 3rd respondent/Insurance Company is directed

to deposit the enhanced compensation of Rs.68,750/- along with

interest before the Tribunal within two (2) months from the date of

this judgment. On such deposit, the 1st petitioner, who is wife of the

deceased, is entitled to withdraw the said amount along with

accrued interest thereon. The order of the Tribunal in all other

respects shall remain intact. No order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

______________________________ V.GOPALA KRISHNA RAO,J th 18 July, 2023 cbs

VGKR,J MACMA No.455 of 2015 & CO No.2 of 2015

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.455 of 2015 and CROSS OBJECTIONS No.2 of 2015

18th July, 2023 cbs