Tribunal Awarded An Amount Of Rs.4 vs Unknown
2023 Latest Caselaw 3726 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No.277 of 2014

JUDGMENT:

Aggrieved by the order dated 29.01.2008 passed by the

Chairman, Motor Accident Claims Tribunal-cum-II Additional District

Judge, Visakhapatnam, in M.V.O.P.No.1349 of 2004, whereby the

Tribunal awarded an amount of Rs.4,00,000/- towards

compensation to the petitioners and directed respondent Nos.2 & 3

to pay 50% of the compensation amount and also directed

respondent Nos.4 & 5 to pay the remaining 50% of the

compensation amount, this instant appeal is preferred by the 5th

respondent/Insurance company.

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 the petition under Section 166 (1)

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

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Rules, 1989 claiming compensation of Rs.4,00,000/- for the death

of Bonu Atchutha Rao, who is husband of 1st petitioner and father of

petitioner Nos.2 & 3, in a motor vehicle accident that took place on

20.12.2003.

4. Facts germane to dispose of the appeal may briefly be stated

as follows:

On 20.12.2003 the deceased and his wife were proceeding

from Kotha Road to Dockyard in an auto bearing registration No.AP

31U 5951 and when the auto reached near Ayyappa Swamy

Temple Junction, the auto, being driven by its driver in a rash and

negligent manner without observing anything, dashed a lorry

bearing registration No.AP 16TU 0490 on its front left side,

resultantly, the deceased and his wife sustained grievous injuries

and the deceased succumbed to injuries on 30.12.2003 while

undergoing treatment. The driver of the lorry was also driving the

lorry in a rash and negligent manner at high speed at the time of

accident. The S.H.O., Gajuwaka Traffic P.S. registered a case in

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crime No.136 of 2003 for the offences under Sections 304-A and

338 of IPC against the driver of the auto. The 1st respondent is

driver, the 2nd respondent is owner and the 3rd respondent is insurer

of the Auto. The 4th respondent is owner and the 5th respondent is

insurer of the lorry. Therefore, all the respondents are jointly and

severally liable to pay compensation to the petitioners.

5. Respondent Nos.1 and 4 were set ex parte.

6. Respondent Nos.2, 3 and 5 filed counters separately by

denying the manner of accident, age, avocation and income of the

deceased.

It is pleaded by the 2nd respondent that the accident took place

due to rash and negligent driving of the driver of the lorry, the police

did not take necessary steps for inspection of the lorry, therefore,

the 2nd respondent prays to dismiss the petition.

VGKR,J MACMA No.277 of 2014

It is pleaded by the 3rd respondent that the accident took place

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

the lorry driver, the auto was not insured with the 3 rd respondent, the

driver of the auto was not holding valid driving licence, though the

lorry was involved in the accident, the police did not arrest the driver

of the lorry or sent any requisition to the concerned to inspect it, as

such, the 3rd respondent is not liable to pay any compensation.

It is pleaded by the 5th respondent that the police registered a

case against the driver of the auto, hence, the petition is not

maintainable and it is liable to be dismissed against the 5th

respondent.

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

following issues were settled for trial by the Tribunal:

1) Whether the accident occurred on account of the rash and negligent driving of the vehicle by its driver and whether it resulted in death to the victim?

VGKR,J MACMA No.277 of 2014

2) Whether the petitioners are entitled for compensation? If so, to what amount?

3) Which of the respondents are liable to pay compensation?

4) To what relief?

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

the petitioners, P.Ws.1 and 2 were examined and Exs.A.1 to A.7

and Ex.X.1 were marked. On behalf of the respondents, R.Ws.1 to 5

were examined and Exs.B.1 and B.2 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 due to rash and negligent driving of the drivers of

both the auto and the lorry involved in the accident and accordingly,

allowed the petition and granted an amount of Rs.4,00,000/- with

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

of deposit. The Tribunal directed respondent Nos.2 & 3 to pay 50%

of the compensation amount and also directed respondent Nos.4 &

5 to pay the remaining 50% of the compensation amount to the

VGKR,J MACMA No.277 of 2014

petitioners. Questioning the legal validity of the order of the Tribunal,

the 5threspondent/Insurance company preferred the present appeal.

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

record.

11. Now, the point for determination is:

Whether the order of the Tribunal needs any interference of this Court and to what extent?

12. POINT: In order to prove the rash and negligent driving of

the drivers of both the offending vehicles, the petitioners relied on

the evidence of P.W.1. P.W.1 is none other than the wife of the

deceased. As per her evidence, on 20.12.2003 her husband was

going to BHPV in the offending auto, when the auto reached

Ayyappa Temple, the accident occurred, by that time, she and her

husband were in the auto, the lorry dashed their auto and both the

vehicles were collided, and due to that she and her husband

sustained injuries. She categorically deposed in her evidence that

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the accident occurred due to rash and negligent driving of the

drivers of both the auto and the lorry.

13. Learned counsel for the appellant/Insurance company would

submit that a case in crime No.136 of 2003 was registered against

the driver of the offending auto by the S.H.O., Gajuwaka Traffic P.S.,

therefore, the Insurance company is not liable to pay any

compensation.

14. The case of the petitioners is that at the time of accident, the

driver of the auto was driving the auto in a rash and negligent

manner, at the same time, the driver of the lorry was also driving the

lorry in a rash and negligent manner at high speed and the lorry

dashed the auto. The same is supported by P.W.1, who is an eye

witness to the accident, and P.W.1 accompanied the deceased on

the date of accident. The petitioners are claiming compensation

from both the insured and insurers of the two offending vehicles.

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15. Ex.A.1-first information report goes to show that a report was

given by the Beat Constable who was claiming to be on duty near

Ayyappa Swamy Temple Junction. The said Beat Constable was

examined as R.W.3. R.W.3 deposed in his evidence that he

witnessed the accident and due to rash and negligent act of the

driver of the offending auto, the accident occurred. But in cross-

examination he stated that the accident occurred on the road which

is of 80 ft. width with a divider and when he gave a signal, the lorry

was taking its turn in the junction, and the auto driver without

observing the signal given by him, came in a rash and negligent

manner and dashed against the lorry. He also stated that after the

accident, the C.I., S.I. and some other constables came to the spot

and the police examined him, as per the dictation of the writer, he

drafted the report and presented the same in the police station at

11.20 a.m. and the lorry did not stop after the accident and he again

stated that the lorry did not pass after the accident. Moreover,

R.W.3 stated that he captured the lorry driver and took the lorry to

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the police station, but the lorry was not inspected by the

M.V.Inspector.

16. A perusal of Ex.A.1 reveals that based on the report given by

P.W.3, Ex.A.1-first information report was registered. In his report,

P.W.3 stated that on the date of accident he was on duty from

8.00 a.m. to 12.00 noon as Beat Constable near Ayyappa Swamy

Temple junction, then one lorry bearing No.AP 16TU 0490 was

coming from Gajuwaka side to go to dockyard road and when the

said lorry took its right turn and going to dockyard road, one auto

bearing No.AP 31U 5951 coming from NDA Kotha road in a rash

and negligent manner came and dashed the lorry on its back left

side and thereby, the auto driver and the person who sat beside him,

died on the spot.

17. On a conjoint reading of the evidence of R.W.3 and Ex.A.1-

first information report, the evidence of R.W.3 is not acceptable

because it is not consistency with the contents of Ex.A.1.

VGKR,J MACMA No.277 of 2014

18. As seen from Ex.A.2-M.V.I. report, no requisition was given by

the S.H.O. concerned to inspect the said lorry. The M.V.Inspector

examined only the auto and found that there were no mechanical

defects in the auto at the time of accident. No statement of the lorry

driver was recorded by the police or the lorry driver was attributed

with any allegation, though there was negligence on his part as seen

from the evidence of P.W.1. Further, the eye witness to the

occurrence is the husband of P.W.1 who survived for about 10 days

after the accident. Obviously, the police never tried to examine him

after registering the case.

19. Therefore, on considering the evidence of P.W.1, the Tribunal

came to the conclusion that the accident occurred due to rash and

negligent driving of the drivers of both the auto and the lorry and it

resulted in the death of the deceased, as such, the liability was

fastened against both the vehicles. I do not find any legal flaw or

infirmity in the said finding given by the Tribunal.

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

of Rs.4,00,000/- to the petitioners towards compensation. As per

Ex.A.7-pay slip of the deceased filed by the petitioners, the

deceased is an employee in BHPV. In fact, nobody was examined

to prove the salary of the deceased. In Ex.A.7-pay slip, the net

amount is shown as Rs.4,251/- and total deductions are shown as

Rs.5,582.95 ps., but, the same is not proved by the petitioners. On

appreciation of the entire evidence on record, the Tribunal arrived

the monthly income of the deceased at Rs.3,000/- i.e., Rs.36,000/-

p.a. The dependents on the deceased are three in number. After

deducting 1/3rd from out of annual income towards personal

expenses of the deceased, the annual contribution to the family

members of the deceased was arrived at Rs.24,000/- (Rs.36,000/- -

Rs.12,000/-). The deceased was aged about 54 years at the time of

his death and the relevant multiplier applicable to the age group of

the deceased is '11' as per II Schedule to Section 163-A of the

M.V.Act. By adopting the multiplier '11' for computation of loss of

dependency, the Tribunal arrived the loss of dependency at

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Rs.2,64,000/- (Rs.24,000/- x multiplier '11'). On considering Ex.A.6-

bunch of medical bills, the Tribunal awarded an amount of

Rs.1,30,000/- towards medical expenses. The Tribunal also

awarded Rs.2,000/- towards funeral expenses of the deceased,

Rs.5,000/- towards loss of consortium and Rs.2,500/- towards loss

of estate. By giving cogent reasons, the Tribunal came to the

conclusion that the petitioners are entitled to a total compensation of

Rs.4,03,500/-. Since the petitioners sought for compensation of

Rs.4,00,000/- only, the Tribunal awarded the said amount of

Rs.4,00,000/- towards compensation to the petitioners.

21. As stated supra, the accident in question occurred due to rash

and negligent driving of the drivers of both the auto and the lorry. It

was held by the Tribunal that the auto was insured with the 3 rd

respondent by the 2nd respondent under Ex.A.5/Ex.B.2-policy and

the policy was in force and the lorry of the 4 th respondent was

insured with the 5th respondent under Ex.A.4-policy and the policy

was also in force. It was also held by the Tribunal in its order that

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there are no violations in Exs.A.5/Ex.B.2 and Ex.A.4, the liability was

fastened on respondent Nos.2 & 3 and respondent Nos.4 & 5, and

the Tribunal directed respondent Nos.2 & 3 to deposit 50% of the

amount of compensation and also directed respondent Nos.4 & 5 to

deposit the remaining 50% of the compensation amount before the

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

by the Tribunal.

22. Learned counsel for the appellant/Insurance company relied

on a decision of the Hon'ble Supreme Court in Nishan Singh Vs.

Oriental Insurance Company Limited (Civil Appeal No.10145 of

2016 dated 27.04.2018). But, the material on record in the present

case shows that the accident in question occurred due to rash and

negligent driving of the drivers of both the auto and the lorry, and

after the accident, the lorry driver fled away with the lorry without

stopping the lorry. The facts and circumstances in the cited decision

are different to that of the case on hand, therefore, the decision

VGKR,J MACMA No.277 of 2014

relied on by the learned counsel for the appellant is not applicable to

the facts of the case on hand.

23. For the foregoing discussion, this Court is of the view that the

impugned order is perfectly sustainable under law and it warrants no

interference and the appeal is devoid of merits, therefore, it is liable

to be dismissed.

24. Accordingly, the appeal is dismissed while confirming the

decree and order dated 29.01.2008 passed by the Chairman, Motor

Accident Claims Tribunal-cum-II Additional District Judge,

Visakhapatnam, in M.V.O.P.No.1349 of 2004. No order as to costs.

As a sequel, miscellaneous petitions, if any, pending in the

appeals shall stand closed.

_______________________________ V.GOPALA KRISHNA RAO,J th 26 July, 2023 cbs

VGKR,J MACMA No.277 of 2014

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.277 of 2014

26th July, 2023 cbs