Apsrtc, Rep By Its Md Cum Vc, ... vs Dudekula Dastagiramma, Kurnool ...
2023 Latest Caselaw 1252 AP

BVLNC,J                                  MACMA 559 OF 2016 & I.A.No.2 OF 2016
Page 1 of 12                       (X-OBJECTIONS 24136 OF 2016) Dt: 03.03.2023




       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

        M.A.C.M.A.No.559 OF 2016 & I.A.No.2 OF 2016
              (X-OBJECTIONS 24136 OF 2016)

                     COMMON JUDGMENT:


           The appeal in MACMA No.559/2016 is preferred by the

respondent/APSRTC, challenging the order dated 03.02.2015 passed

in M.V.O.P.No.349/2012 on the file of Motor Accidents Claims

Tribunal-cum-III Addl.District Judge, Kurnool at Nandyal, wherein the

Tribunal partly allowing the petition, awarded a compensation of

Rs.4,02,000/- with interest @ 7.5% p.a. from the date of petition, till

the date of realisation, for the death of Dudekula Pedda Hussaini, in a

motor vehicle accident.

2. The cross objections in I.A.No.2/2016 in MACMA 559/2016 is

preferred by the claimants/petitioners, challenging the same order and

sought for enhancement of the compensation amount.

3. For the sake of convenience, the parties are arrayed as parties

before the Tribunal.

4. As seen from the record, the claim petition was filed U/s.166 of

the Motor Vehicles Act, 1988 (for brevity "the Act") claiming

compensation of Rs.6,00,000/- on account of the death of Dudekula BVLNC,J MACMA 559 OF 2016 & I.A.No.2 OF 2016 Page 2 of 12 (X-OBJECTIONS 24136 OF 2016) Dt: 03.03.2023

Pedda Hussaini, in a motor vehicle accident that occurred on

13.08.2012.

5. The facts would show that on 13.08.2012 the deceased

Dudekula Pedda Hussaini was boarding APSRTC Bus bearing No.AP

11Z 325 near State Bank of India, Owk village, the driver of the bus,

moved the bus in negligent manner, as a result, the deceased fell down

from the bus, and then rear tyres of the bus passed on his both legs,

he sustained severe bleeding injuries. Immediately he was shifted to

Government Hospital, Banaganapalle, and later shifted to Government

Hospital, Kurnool, for better treatment. He died undergoing treatment

on 13.09.2012. The Station House Officer, Owk Police Station

registered case in Cr.No.73/2012 for the offence punishable U/s.304-A

of Indian Penal Code against the driver of RTC Bus. The deceased was

aged 48 years, hale and healthy at the time of accident, used to work

as Polish Stone Cuter and earning Rs.300/- per day. Due to the

sudden demise of the deceased, the petitioners lost support, love and

affection and became destitutes.

6. Before the Tribunal, the respondent/APSRTC filed counter

resisting, while traversing the material averments with regard to proof

of age, avocation, monthly earnings of the deceased, manner of

accident, rash and negligence on the part of the driver of the offending BVLNC,J MACMA 559 OF 2016 & I.A.No.2 OF 2016 Page 3 of 12 (X-OBJECTIONS 24136 OF 2016) Dt: 03.03.2023

vehicle, liability to pay compensation; It contended that there is no

rash and negligence on the part of driver of the respondent, and that

the deceased himself was negligent, and fell down from the running

bus.

7. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

1. Whether the accident took place on account of rash and negligent driving of driver of APSRTC bus bearing No.AP 11Z 325?

2. Whether the petitioners are entitled for any compensation, and, if so to what amount?

3. To what relief?

8. To substantiate their claim, the claimants examined the 2nd

petitioner as P.W-1 and got marked Exs.A-1 to A-5. No oral or

documentary evidence was adduced on behalf of the respondent.

9. The Tribunal, taking into consideration the evidence of P.W-1,

coupled with Exs.A-1 to A-5, held that the accident took place due to

the rash and negligent driving of the driver of APSRTC Bus bearing

No.AP 11Z 325, and further, taking into consideration the evidence of

P.W-1, corroborated by Exs.A-1 to A-5, awarded a compensation of BVLNC,J MACMA 559 OF 2016 & I.A.No.2 OF 2016 Page 4 of 12 (X-OBJECTIONS 24136 OF 2016) Dt: 03.03.2023

Rs.4,02,000/- with interest @ 7.5% p.a. from the date of petition, till

the date of deposit, against the respondent.

10. The contention of the appellant/APSRTC in the appeal is that

the accident occurred due to negligence of the deceased, as he tried to

board the running bus, but the Tribunal erroneously held that the

accident occurred due to negligence of the driver of the APSRTC Bus

bearing No.AP 11Z 325. The other contention of the appellant/APSRTC

is that the Tribunal awarded excessive compensation.

11. The claimants filed Cross-Objections in I.A.No.2/2016, and

further contended that the accident occurred due to rash and

negligent driving of the driver of the APSRTC Bus bearing No.AP 11Z

325, as he moved the bus while the deceased was boarding the bus.

The other contention of the claimants is that the Tribunal did not

award just compensation.

12. In the light of the above rival contentions, the points that would

arise for consideration in the appeal filed by the APSRTC and cross-

objections filed by the claimants are as under:

1. Whether the accident was not occurred due to rash or negligence of the driver of the APSRTC Bus bearing No.AP 11Z 325?

 BVLNC,J                                MACMA 559 OF 2016 & I.A.No.2 OF 2016
Page 5 of 12                     (X-OBJECTIONS 24136 OF 2016) Dt: 03.03.2023

2. Whether the Tribunal did not award just compensation?

3. To what relief?

13. POINT No.1:

The case of the claimants is that on 03.08.2012 at about 05.30

p.m. the deceased and his son (2nd petitioner/P.W-1) were waiting for

bus to go to their village Mukkamalla of Kurnool District. The crime

vehicle i.e., APSRTC Bus bearing No.AP 11Z 325 came to the bus stop.

P.W-1 boarded the bus. While the deceased was boarding the bus,

driver of the bus suddenly moved the bus in a rash and negligent

manner, as a result, the deceased fell down, and the rear tyres of the

bus were passed on his both legs. The deceased sustained crush

injuries over both legs. Soon after the accident, he was shifted to the

Government Hospital, Banaganapalle village, after first aid he was

shifted to Government Hospital, Kurnool. He died on 13.09.2012 while

undergoing treatment. Owk Police registered FIR IN Cr.No.73/2012 for

the offence punishable U/s.304-A of Indian Penal Code. They

investigated the case, and laid police report (charge sheet) against the

driver of the APSRTC Bus for the offence punishable U/s.304-A of

Indian Penal Code.

 BVLNC,J                                 MACMA 559 OF 2016 & I.A.No.2 OF 2016
Page 6 of 12                      (X-OBJECTIONS 24136 OF 2016) Dt: 03.03.2023

14. The contention of the APSRTC is that the deceased tried to board

the running bus, and therefore, he fell down and sustained injuries.

15. The claimants in order to establish their case, examined the

2nd petitioner i.e., son of the deceased, as P.W-1. He deposed the above

version of the claimants. The APSRTC cross-examined him suggesting

that the deceased tried to board the bus, when bus is running. It was

denied by P.W-1 as not true. Nothing was elicited in the cross-

examination of P.W-1 in support of the case of APSRTC. No contra

evidence was adduced by the APSRTC. It did not choose to examine its

driver or conductor to speak about the way in which the incident

occurred. Admittedly, police registered FIR for the offence punishable

U/s.304-A of Indian Penal Code. They conducted investigation about

the incident. They laid police report (charge sheet). The claimants filed

copy of FIR under Ex.A-1. They also filed copy of police report (charge

sheet) under Ex.A-5. Police opined that the accident occurred due to

rash and negligence driving of the driver of the APSRTC Bus bearing

No.AP 11Z 325. So, the opinion of the police is corroborating the

evidence of P.W-1. No reason was assigned by the APSRTC for non-

examination of its conductor or driver, giving opportunity to the

claimants to cross-examine them for eliciting the truth about the

incident. Therefore, adverse inference shall be drawn against the BVLNC,J MACMA 559 OF 2016 & I.A.No.2 OF 2016 Page 7 of 12 (X-OBJECTIONS 24136 OF 2016) Dt: 03.03.2023

APSRTC that the case pleaded by it is not true and correct. Hence, it

can be held that the accident was occurred due to rash and negligent

driving of the driver of the APSRTC Bus bearing No.AP 11Z 325.

Accordingly, this point is answered.

16. POINT No.2:

It is the case of the claimants that the deceased was working as

a Polish Stone Cutter and earning Rs.300/- per day. Admittedly,

except the self-serving testimony of P.W-1, no other evidence was

produced by the claimants. The deceased was living in village. The

Tribunal on considering the facts and circumstances, notionally fixed

his income at Rs.100/- per day. In that view of the matter, this Court

do not find any ground to interfere with the finding of the Tribunal on

that aspect.

17. In Ex.A-2 post mortem certificate, the age of the deceased was

mentioned as 45 years. The claimants in their application at page

No.2, in the particulars provided under Rule 445 of A.P.M.V.Rules, at

Column No.3, mentioned the age of the deceased as 48 years. In the

inquest report, the age of the deceased is mentioned as 48 years. The

Tribunal considering all these facts, fixed the age of the deceased as 47

years. In that view of the matter, there are no grounds to interfere with BVLNC,J MACMA 559 OF 2016 & I.A.No.2 OF 2016 Page 8 of 12 (X-OBJECTIONS 24136 OF 2016) Dt: 03.03.2023

the finding of the Tribunal regarding the age of the deceased at the

time of death.

18. Therefore, the monthly income of the deceased is Rs.100 x 30 =

Rs.3,000/-. The annual income of the deceased is Rs.3,000 x 12 =

Rs.36,000/-. There are three dependents in the case, therefore, 1/3 rd

of the income of the deceased shall be deducted towards personal

expenses of the deceased. Therefore, the annual income of the

deceased is Rs.36,000 - 12,000 = Rs.24,000/-.

19. As per judgment of the Hon'ble Apex Court in Sarla Verma and

another Vs. Delhi Road Transport Corporation and others1, the

multiplier to be applied is '13' for the persons in the age group of 46 to

50 years. Therefore, the loss of dependency would be

Rs.24,000 x 13 = Rs.3,12,000/-.

20. In view of the judgment of the Hon'ble Apex Court in the case of

National Insurance Company Limited Vs. Pranay Sethi2, the

claimants are entitled to Rs.15,000/- towards funeral expenses,

Rs.15,000/- towards loss of estate and Rs.40,000/- towards spouse

consortium to the 1st claimant, and the total would be Rs.70,000/-.

    2009 ACJ 1298

    (2017) 16 SCC 680
 BVLNC,J                                  MACMA 559 OF 2016 & I.A.No.2 OF 2016
Page 9 of 12                       (X-OBJECTIONS 24136 OF 2016) Dt: 03.03.2023

21. As per judgment of Hon'ble Apex Court in the case of Magma

General Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram

and others3, the claimants No.2 and 3 are entitled to a sum of

Rs.40,000/- each towards parental consortium. Therefore, the total

amount entitled by the claimants in all is Rs.3,12,000 + 70,000 +

80,000 = Rs.4,62,000/- towards just compensation, instead of

Rs.4,02,000/- awarded by the Tribunal.

22. The claimants made a claim towards medical and transport

expenses @ Rs.60,000/- and Rs.10,000/- respectively. But they did

not place any evidence before the Tribunal to prove the expenditure

incurred by them for the said claims. In that view of the matter, the

Tribunal did not award any amount. Therefore, there are no grounds

to interfere with the findings of the Tribunal on that aspect.

23. The Tribunal awarded interest at 7.5% p.a. from the date of

petition, till the date of realisation. This Court do not find any ground

to interfere with the rate of interest awarded by the Tribunal at 7.5%

p.a., from the date of petition, till the date of realisation, in view of the

2018 ACJ 2782 BVLNC,J MACMA 559 OF 2016 & I.A.No.2 OF 2016 Page 10 of 12 (X-OBJECTIONS 24136 OF 2016) Dt: 03.03.2023

Hon'ble Apex Court judgement in National Insurance Company

Limited Vs. Mannat Johal4. Accordingly, this point is answered.

24. POINT No.3: To what relief?

In the light of findings on points No.1 and 2, this Court is of the

considered opinion that it is a fit case to partly allow the cross-

objections filed by the claimants, by modifying the order and decree

passed by the Tribunal as under:

25. In the result, I.A.No.2/2016 (Cross-Objections 24136/2016)

filed by the claimants is partly allowed, by modifying the order dated

03.02.2015 passed in M.V.O.P.No.349/2012 on the file of Motor

Accidents Claims Tribunal-cum-III Addl. District Judge, Kurnool at

Nandyal, holding that the appellants/claimants are entitled to a

compensation of Rs.4,62,000/- (Rupees Four Lakhs and Sixty Two

Thousand only) with interest @ 7.5% p.a. from the date of petition till

the date of deposit, instead of Rs.4,02,000/-, awarded by the Tribunal.

There shall be no order as to costs.

26. Consequently, the appeal in MACMA No.559/2016 filed by the

respondent/APSRTC is dismissed. There shall be no order as to costs.

    2019 ACJ 1849 (SC)
 BVLNC,J                               MACMA 559 OF 2016 & I.A.No.2 OF 2016
Page 11 of 12                    (X-OBJECTIONS 24136 OF 2016) Dt: 03.03.2023

27. The respondent/APSRTC, is directed to deposit the entire

compensation amount of Rs.4,62,000/- (Rupees Four Lakhs and Sixty

Two Thousand only) with interest @ 7.5% p.a. from the date of petition,

till the date of deposit, as awarded in I.A.No.2/2016, along with

accrued interest thereon, within one month from the date of judgment.

In the event of the respondent/APSRTC already deposited some

amount, the said amount has to be excluded, and the balance amount

shall be deposited within one month from the date of judgment.

28. On such deposit, the claimants No.2 and 3 are permitted to

withdraw a sum of Rs.1,00,000/- (Rupees One Lakh only) each, along

with the accrued interest thereon. The 1st claimant, being the wife of

the deceased is permitted to withdraw a sum of Rs.2,62,000/- (Rupees

Two Lakhs and Sixty Two Thousand only) along with the accrued

interest thereon.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

                                     _________________________________
                                     B.V.L.N.CHAKRAVARTHI, J
03.03.2023

psk
 BVLNC,J                            MACMA 559 OF 2016 & I.A.No.2 OF 2016
Page 12 of 12                 (X-OBJECTIONS 24136 OF 2016) Dt: 03.03.2023




       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




        M.A.C.M.A.No.559 OF 2016 & I.A.No.2 OF 2016

                (X-OBJECTIONS 24136 OF 2016)




                        3rd March, 2023

psk