Andhra Pradesh High Court - Amravati

Between vs Unknown on 6 March, 2023

    IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                M.A.C.M.A. Nos.1742 and 2898 of 2014

Between:
The United India Insurance Company Limited,
Rep. by its Divisional Manager, Srikakulam.
                                        ... Appellant / respondent No.3

And

1. Smt Patnala Devi, W/o.late P.Siva Kumar, Hindu, aged 33 years, Household duties, R/o.Srinivasa Colony, Srungavarapukota, Vizianagaram District and 5 others ...Respondents/Respondents 1 and 2/ Claim petitioners

DATE OF ORDER PRONOUNCED : 06.03.2023

SUBMITTED FOR APPROVAL:

HONOURABLE SRI JUSTICEV.GOPALA KRISHNA RAO

1. Whether Reporters of Local Newspapers may be allowed to see the order? : Yes/No

2. Whether the copy of order may be marked to Law Reporters/Journals? : Yes/No

3. Whether His Lordship wish to see the fair copy of the order? : Yes/No

__________________________ V.GOPALA KRISHNA RAO, J VGKRJ common judgment MACMA 1742 of 2014 & Page 2 of 14 MACMA 2898 of 2014 Dt:06.03.2023

* HONOURABLE SRI JUSTICE V.GOPALA KRISHNA RAO

+ M.A.C.M.A. Nos.1742 and 2898 of 2014

% 06.03.2023

M.A.C.M.A. Nos.1742 and 2898 of 2014:

Between:

The United India Insurance Company Limited, Rep. by its Divisional Manager, Srikakulam.

... Appellant / respondent No.3 And

! Counsel for Appellant : Smt A.Jayanthi

^ Counsel for Respondents : Smt B.V.Aparna Lakshmi

< Gist:

> Head Note:

? Cases referred:

2009 ACJ 1298 2007 Law Suit (SC) 43 2004(4) ALD 444

This Court made the following:

 VGKRJ                              common judgment MACMA 1742 of 2014 &
Page 3 of 14                                       MACMA 2898 of 2014
                                                    Dt:06.03.2023

THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.Nos.1742 and 2898 of 2014

COMMON JUDGEMENT:

The appellant in MACMA No.1742 of 2014 is third respondent

in MVOP No.255 of 2011on the file of the Motor Accident Claims

Tribunal-cum-I Additional District Judge, Vizianagaram and the

respondents are the claimants and other respondents in the said

case.

The appellants in MACMA No.2898 of 2014 are the claimants

in MVOP No.255 of 2011 on the file of the Motor Accident Claims

Tribunal-cum- I Additional District Judge, Vizianagaram and the

respondents are the respondents in the said case.

Both the appeals are filed against one decree and order

passed in MVOP No.255 of 2011 on the file of the Motor Accident

Claims Tribunal-cum- I Additional District Judge, Vizianagaram and

both the appeals are clubbed and common judgment is pronounced

in both the appeals.

 VGKRJ                                 common judgment MACMA 1742 of 2014 &
Page 4 of 14                                          MACMA 2898 of 2014
                                                       Dt:06.03.2023

2. Both the parties in the appeals will be referred to as they are

arrayed in claim application.

3. The claimants filed a Claim Petition under section 166 of

Motor Vehicles Act read with Section 455 of Motor Vehicles Rules

against the respondents by praying the Tribunal to award an amount

of Rs.15,00,000/- towards compensation for the death of

P.Sivakumar in a Motor Vehicle Accident occurred on 11.03.2009.

4. The case of the claimants is that on 11.03.2009 at 10.00 p.m.

the deceased/P.Sivakumar and others went to Sompuram village of

Vepada for attending village festival programmes at night on the

pulsar motor cycle, while they were returning to S.Kota village, when

reached near Kothuru junction at about 11.30 p.m., the 1st

respondent being the driver of tipper lorry bearing No.AP 31 W 5648

negligently stopped the vehicle on the State High Way road without

taking any precautionary measures, due to the negligence of the

first respondent, the deceased dashed on the rear right side of the

tipper lorry, as a result, the deceased and pillion riders fell on the

road, received grievous injuries and the deceased was died on the VGKRJ common judgment MACMA 1742 of 2014 & Page 5 of 14 MACMA 2898 of 2014 Dt:06.03.2023

way to hospital and the petitioners claimed an amount of

Rs.15,00,000/- towards compensation.

5. The respondents 1 and 2 remained exparte. Third respondent

filed counter denying the claim application and contended that the

claimants are not entitled any compensation and the third

respondent is not liable to pay any compensation to the petitioners.

6. Based on the above pleadings, the Tribunal framed the

following issues:

i. Whether the accident and death of the deceased viz., Patnala Sivakumar is due to rash and negligent driving of the vehicle (tipper) bearing No.AP 31 W 5648 by its driver?

ii. What is the correct age and income of the deceased as on the date of the accident?

iii. Whether the petitioners are entitled to any compensation and, if so at what quantum and from which of the respondents?

iv. To what relief?

7. On behalf of the petitioner, PW1 to PW3 were examined and

Ex.A1 to Ex.A3 and Ex.X1 to Ex.X3 were marked. On behalf of VGKRJ common judgment MACMA 1742 of 2014 & Page 6 of 14 MACMA 2898 of 2014 Dt:06.03.2023

respondent No.3 RW1 and RW2 were examined and Ex.B1 was

marked.

8. After considering the evidence on record, the Tribunal has

given a finding that the accident occurred due to negligent parking of

the tipper vehicle on the State High Way road without taking any

precautionary measures and the Tribunal granted an amount of

Rs.15,00,000/- to the claimants towards compensation.

9. Aggrieved by the same, both the parties, the claimants and the

3rd respondent/ Insurance Company filed the appeals.

10. Now, the points for consideration are:

1. Whether the Order passed by the Tribunal needs any interference?

2. Whether the claimants in MVOP No.255 of 2011 on the file of the Motor Accident Claims Tribunal-cum- I Additional District Judge, Vizianagaram are entitled for enhancement of claim as prayed for?

11. POINT Nos.1 and 2:-

In order to prove the claim of the petitioners, the first petitioner

was examined as PW1. She is not the eye witness to the accident.

 VGKRJ                                  common judgment MACMA 1742 of 2014 &
Page 7 of 14                                           MACMA 2898 of 2014
                                                        Dt:06.03.2023

She got examined the eye witness to the accident as PW3. PW3

deposed in his evidence that on 11.03.2009 at 10.00 p.m., himself,

the deceased and another went to Sompuram village on pulsar

motor cycle for attending village festival programme at night time.

At that time, the first respondent being the driver of tipper lorry

bearing No.AP 31 W 5648 stopped the lorry in the middle of the

State high way road without taking any precautionary measures,

due to the negligence of the first respondent, the deceased dashed

the rear right side of the tipper lorry, as a result, the deceased,

himself along with pillion rider fell down on the road and sustained

injuries. The evidence of PW3 coupled with Ex.A1 copy of First

Information Report and Ex.A3 copy of charge sheet clearly

establishes that because of the rashness and negligent parking of

the driver of the tipper lorry, the accident was occurred.

12. The evidence on record clearly goes to show that the first

respondent, driver of the tipper lorry, without taking any

precautionary measures, stopped the tipper lorry in the middle of the

State high way road and because of his negligent attitude only, the VGKRJ common judgment MACMA 1742 of 2014 & Page 8 of 14 MACMA 2898 of 2014 Dt:06.03.2023

accident was occurred and the rider of the two-wheeler received

grievous injuries and died on the way of hospital.

13. The deceased is a railway employee by the date of accident.

As per Ex.X2 attested copy of relevant pages in the Service

time of accident. The multiplier applicable to the age group of the

deceased as per Sarla Verma and another Vs. Delhi Road

Transport Corporation and others1 is '15'.

14. PW2-P.Tirumala Rao is Office Superintendent (Legal) in East

Coast Railway, Visakhapatnam, in his evidence he deposed that the

deceased used to work in their Department as Track Man Grade II

at Araku Valley and in support of the same, he filed Ex.X2 and

Ex.X3. Ex.X2 is the photostat copy of relevant pages of Service

of the deceased for the month of February, 2009. In cross

examination nothing was elicited from PW2 to discredit the

testimony of PW2. In the cross examination, the evidence of PW2 is

2009 ACJ 1298 VGKRJ common judgment MACMA 1742 of 2014 & Page 9 of 14 MACMA 2898 of 2014 Dt:06.03.2023

not disturbed the material aspects of the case. As per Ex.X2 the

gross salary of the deceased is Rs.11,365/- per month i.e.,

Rs.1,36,380/- per annum. Here the dependent family members are

4, therefore, 1/4th income shall be deducted towards personal and

living expenses of the deceased. So Rs.1,36,380/- x ¼ =

Rs.34,095/-, after deducting the same, the financial dependency that

was lost by the petitioners/ claimants, arrived at Rs.15,34,275/-.

(Rs.1,36,380/- - 34,095 = Rs.1,02,285/- x 15).

15. Learned counsel for Insurance Company relied on a decision

of Supreme Court of India (from Gauhati) (D.B) in between Oriental

Insurance Company Limited vs. Jhuma saha2 it was held that:

The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving, the question which arises for consideration is that the deceased himself being negligent, the claim petition u/s.166 of the Motor Vehicles Act, 1988 would be maintainable.

Here in the present case, the evidence of PW3 coupled with Ex.A1

and Ex.A3 clearly goes to show that due to negligent attitude of the

2007 Law Suit (SC) 43 VGKRJ common judgment MACMA 1742 of 2014 & Page 10 of 14 MACMA 2898 of 2014 Dt:06.03.2023

driver of the tipper lorry only the accident was occurred and the

accident was not occurred due to own fault of the deceased.

16. It was argued by the learned counsel for Insurance Company

that there was a contributory negligence on the part of the deceased

and relied on a decision reported in United India Insurance

Company Limited Vs. K.Anjaiah3. In that decision it was held

"it is admitted that there was triple riding on the scooter. Under those circumstances, even in the absence of independent evidence adduced by the Insurance Company that the accident had occurred due to triple riding, it can be reasonable presumed that the rider of the scooter was discomforted by reasons of allowing two pillion riders and thus contributed in causing the accident. Had he been riding the scooter with one pillion rider, probably he would have averted the accident by swerving the scooter to the extreme left side, but could not do so probably, his hands and legs movement was limited due to the congestion. In such view of the matter, the culpability in causing the accident is fixed at 75% on the part of the driver of the accident lorry and 25% on the part of the rider of the scooter".

Here in the present case as per the evidence on record and as

per the documentary evidence produced by the claimants, the

deceased was riding the two-wheeler with two pillion riders. The

2004(4) ALD 444 VGKRJ common judgment MACMA 1742 of 2014 & Page 11 of 14 MACMA 2898 of 2014 Dt:06.03.2023

two-wheeler vehicles are meant only for two persons i.e., rider and

pillion rider. More than two persons travelling in a motor cycle or

any other two-wheeler, undoubtedly such action of the

rider/deceased would become not legal. When rider is riding two-

wheeler with two pillion riders, normally because of restricted

movements of his legs, he cannot have to complete control over the

brake. The movements of his hands also so restricted. When that

be so, definitely the rider of the two-wheeler cannot have full control

over the vehicle. Here in the present case because of the death of

the deceased, the first petitioner lost her husband at the age of 33

only, second and third petitioners lost their father at the age of 13

and 11 years respectively, fourth petitioner/ mother of the deceased

and dependent upon the deceased son, lost her son at the age of 57

years. As per Ex.A1 and Ex.A3 coupled with the evidence of PW3,

the accident was purely occurred due to negligent parking of the

driver of the tipper lorry in State high way in the middle of the road.

Charge sheet was also filed against the driver of the tipper lorry in a

criminal case before the Magistrate Court.

 VGKRJ                                common judgment MACMA 1742 of 2014 &
Page 12 of 14                                         MACMA 2898 of 2014
                                                      Dt:06.03.2023

17. Considering the above circumstances, it is just and necessary

to deduct 10% of amount from out of Rs.15,34,275/- in violation of

Section 128 of Act. Thus the claimants are entitled a sum of

Rs.15,34,275.00 - 10% = Rs.13,80,848/- and an amount of

Rs.40,000/- is awarded to the first petitioner towards loss of

consortium, an amount of Rs.15,000/- is awarded towards funeral

expenses of the deceased and an amount of Rs.15,000/- is awarded

towards loss of estate. In total, an amount of Rs.14,50,848/- is

awarded towards the total compensation to the claimants. The first

petitioner, wife of the deceased is entitled an amount of

Rs.7,50,848/-, the second and third petitioners, who are children of

the deceased are entitled an amount of Rs.2,75,000/- each, the

fourth petitioner being the mother of the deceased is entitled for

Rs.1,50,000/-. The first petitioner is entitled to withdraw her entire

share amount along with total interest and costs on Rs.14,50,848/-.

Fourth petitioner is also entitled to withdraw her entire share. The

share of minors i.e., petitioners 2 and 3 shall be deposited in any

nationalized bank till they attain the age of majority. After attaining VGKRJ common judgment MACMA 1742 of 2014 & Page 13 of 14 MACMA 2898 of 2014 Dt:06.03.2023

the majority, the petitioners 2 and 3 are entitled to withdraw their

respective share amount with interest thereon.

18. In the result, MACMA No.1742 of 2014, filed by the Insurance

company, is partly allowed and the MACMA No.2898 of 2014, filed

by the claimants, is dismissed and the impugned award in MVOP

No.255 of 2011 on the file of the Motor Accident Claims Tribunal-

cum- I Additional District Judge, Vizianagaram, is modified to the

extent as stated above. There shall be no order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall stand closed.

________________________________ V.GOPALA KRISHNA RAO,J Dated: 06.03.2023.

sj


Note: L.R copy to be marked
 VGKRJ                             common judgment MACMA 1742 of 2014 &
Page 14 of 14                                      MACMA 2898 of 2014
                                                   Dt:06.03.2023

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.Nos.1742 and 2898 of 2014

06.03.2023