Kajjam Akhilandeswari Another vs M. Yugundhar Reddy Another
2023 Latest Caselaw 2662 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    M.A.C.M.A.No. 789 of 2013

JUDGEMENT:

The appellants are claim petitioners and the respondents are

respondents in M.V.O.P.No.569 of 2010 on the file of the Motor

Accident Claims Tribunal-cum-Principal District Judge, Guntur.

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

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

3. The claim petitioners filed a claim petition under Sections 140,

141 and 163-A of the Motor Vehicles Act, 1988 against the

respondents praying the Tribunal to award an amount of

Rs.11,00,000/- towards compensation for the death of Kajjam

Venkateswarlu in a motor vehicle accident that occurred on

05.08.2006.

4. The brief averments of the claim petition are as follows:

VGKR,J MACMA No.789 of 2013

On 05.08.2006 at about 6.00 p.m. while the deceased

Venkateswarlu was riding his scooter bearing registration No.AP 7B

1209 from Anumula to Halia, a lorry bearing registration No.AP 27V

4554 being driven by its driver in a rash and negligent manner at

high speed without following traffic rules, came and hit the scooter

from backside, as a result, the deceased sustained severe head

injury and multiple injuries and while undergoing treatment,

succumbed to injuries on 12.09.2006. The 1st respondent is owner

and the 2nd respondent is insurer of the offending vehicle. Hence,

both the respondents are jointly and severally liable to pay

compensation to the petitioners.

5. The 1st respondent was set ex parte.

6. The 2nd respondent filed a written statement by denying the

manner of accident. It is contended that there was no negligence on

the part of the driver of the lorry at the time of accident and the

offending vehicle was not insured with the 2nd respondent/Insurance

company and the driver of the offending vehicle was not holding

valid and effective driving licence at the time of accident.

VGKR,J MACMA No.789 of 2013

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

following issues for trial:

1. Whether the accident occurred due to the use of the motor vehicle bearing No.AP 37V 4554, if so, Kajjam Venkateswarlu received injuries in the said accident and died due to those injuries?

2. Whether the petitioners are entitled for compensation?

and

3. Whether the respondents are liable to pay compensation, if any the petitioners are entitled?

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

the petitioners, P.Ws.1 to 3 were examined and Exs.A.1 to A.6 and

Ex.X.1 were marked. On behalf of the 2nd respondent, no oral or

documentary evidence was adduced.

9. At the culmination of the enquiry, after considering the

evidence on record and on appreciation of the same, the Tribunal

allowed the petition in part and awarded a sum of Rs.1,42,000/-

towards compensation to the claim petitioners. Being aggrieved by

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the impugned award, the claim petitioners filed the appeal for

enhancement of compensation.

10. Heard learned counsels for both the parties.

11. The grounds urged by the appellants/claim petitioners are that

the Tribunal erred in fixing the monthly income of the deceased as

Rs.3,000/- instead of assessing his own income basing on the

evidence and failed to consider Ex.A.6-a bunch of medical bills.

12. Now, the points for determination are:

1) Whether the claim petitioners are entitled enhancement of compensation as prayed for? and

2) Whether the order passed by the Tribunal needs any interference?

13. POINT Nos.1 and 2 : on considering the evidence of P.W.2

and on considering Ex.A.1-certified copy of first information report

and Ex.A.2-certified copy of charge sheet, the Tribunal gave a

finding that the accident occurred due to rash and negligent driving

of the driver of the lorry only and the lorry driver drove the lorry in a

VGKR,J MACMA No.789 of 2013

rash and negligent manner and hit the scooter of the deceased and

due to the said accident, the petitioner sustained severe injuries.

The petition was filed under Section 163-A of the Motor Vehicles Act,

1988. No appeal was filed by the respondents against the said

finding. Therefore, there is no need to interfere with the said finding

given by the Tribunal.

14. As per the contents of the petition, the deceased was aged

about 70 years as on the date of accident. But, the petitioners failed

to produce any documentary proof in support of the age of the

deceased. However, as per Ex.A.3-certified copy of post-mortem

report and Ex.A.4-certified copy of inquest report, the Tribunal took

the age of the deceased as 80 years. Since the accident occurred

in the year 2006 and on considering the age of the deceased, the

learned Tribunal fixed the monthly earnings of the deceased at

Rs.3,000/- and the annual income is arrived at Rs.36,000/-. After

deducting 1/3rd towards personal expenses of the deceased in view

of Section 163-A of the Motor Vehicles Act, the annual contribution

to the family is arrived at Rs.24,000/- (Rs.36,000/- - Rs.12,000/-).

VGKR,J MACMA No.789 of 2013

As stated above, the age of the deceased is 80 years. Therefore,

the multiplier applicable to the age group of the deceased is "5". So,

the loss of dependency is arrived at Rs.1,20,000/- (Rs.24,000/- x 5).

The Tribunal also awarded Rs.2,000/- towards transportation and

funeral expenses and Rs.5,000/- towards loss of consortium to the

1st petitioner. The 1st petitioner is wife and the 2nd petitioner is major

son of the deceased. The Tribunal rightly held that the 1st petitioner

is dependent on the deceased and the 2nd petitioner, who is aged 38

years by the date of claim petition, is not dependent on the

deceased by applying the principle laid down by the composite High

Court of Andhra Pradesh at Hyderabad in Dilip Kumar Moses Vs.

V.J.Cyrice reported in 2002 (6) ALD 127 and Oriental Insurance

Company Limited, Guntur Vs. P.Sathyavathamma reported in

2010 (3) ALD 222. Therefore, there is no need to interfere with the

said findings recorded by the learned Tribunal.

15. The Tribunal further awarded a sum of Rs.15,000/- towards

medical expenses. It is mainly contended by the claim petitioners

that the Tribunal failed to consider the evidence on record with

VGKR,J MACMA No.789 of 2013

regard to medical bills. Learned counsel for the claim petitioners

relied on the decisions of the Hon'ble Apex Court in U.P.State Road

Transport Corporation Vs. Trilok Chandra1 and ICICI Lombard

General Insurance Company Limited Vs. Sunil Kumar2. But, in

the instant case, no doubt, the medical bills were marked as Ex.A.6.

But for the reasons best known to the claim petitioners, they did not

choose to examine the doctor who issued Ex.A.6-bunch of medical

bills. They also did not confront Ex.A.6-medical bills through P.W.3

who was examined as a witness before the Tribunal. No doubt,

P.W.3 is not the concerned doctor. At least, the petitioners ought to

have taken care to confront Ex.A.6-medical bills through P.W.3.

That was not done by the claim petitioners. On a perusal of Ex.A.6-

medical bills, this Court opines that the amount of Rs.15,000/-

awarded towards medical expenses is very low. Therefore, the said

amount is enhanced to Rs.50,000/-. In total, the claim petitioners

(1996) 4 SCC 362

2015 SCC Online P&H 9490

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are entitled compensation of Rs.1,77,000/- (Rs.1,42,000/- +

Rs.35,000/-).

16. It is the case of the petitioners that the offending vehicle of the

1st respondent was insured with the 2nd respondent/Insurance

company and by the date of the accident, the policy was subsisting.

Though the 2nd respondent contended that the lorry was not insured

with it and the driver of the offending vehicle was not holding valid

driving licence, the 2nd respondent failed to establish the same. The

Tribunal rightly held that the 1st respondent being the insured and

the 2nd respondent being the insurer of the offending vehicle, are

jointly and severally liable to pay compensation, as the policy was

subsisting as on the date of accident. Therefore, the said finding

recorded by the Tribunal warrants no interference by this Court.

17. For the foregoing reasons, the appeal is partly allowed

enhancing the compensation from Rs.1,42,000/- to Rs.1,77,000/-

and the 1st petitioner is entitled enhanced compensation of

Rs.35,000/- with interest at 7.5% p.a. from the date of petition till the

VGKR,J MACMA No.789 of 2013

date of payment by both the respondents. Both the respondents are

directed to deposit the enhanced compensation of Rs.35,000/- with

interest at 7.5% p.a. before the Tribunal within two months from the

date of the judgment. On such deposit, the 1st petitioner is entitled

to withdraw the said amount along with interest. No order as to

costs.

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

appeals shall stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J st 1 May, 2023 cbs

VGKR,J MACMA No.789 of 2013

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 789 of 2013

1st May, 2023 cbs