Andhra Pradesh High Court - Amravati

M.R.Mohan Kumar vs Andhra Pradesh State Road ... on 30 October, 2023

THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

                M.A.C.M.A. No. 673 of 2023

JUDGMENT: -

1)   Aggrieved by the impugned Decree and Award, dated

25.07.2013, passed in M.V.O.P. No. 413 of 2010 on the file

of the Chairman, Motor Accidents Claims Tribunal-cum-IV

Additional District Judge, Tirupati, whereby, the claim of

Rs.1,64,500/- was awarded to the Claimants towards

compensation, this Appeal is preferred by the Claimants

claiming remaining balance compensation amount, as

prayed in the claim application.


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 the petition under Section

163-A of the Motor Vehicles Act, 1988 [the 'M.V. Act'],

against   the   respondents   claiming   compensation    of

Rs.5,00,000/- for the death of one M. Goutham [the

'deceased'], in a motor vehicle accident that took place on

14.01.2009.
                                2


4)    Facts

germane to dispose of the Appeal in brief as

follows: -

i. On 14.01.2009 at about 5.00 P.M. while the deceased

was proceeding as a pillion rider on a motorcycle

bearing registration No.AP03 AC 5439 along with

another pillion rider driven by one Chaitanya and

when the motorcycle reached near bus stop of

Diguvamedawada, the driver of the 1st

respondent/A.P.S.R.T.C. hire bus drove the bus in a

rash and negligent manner with high speed, without

blowing horn, came from behind and dashed against

the motorcycle, upon which the deceased fell down,

and the R.T.C. hire bus ran over the head of the

deceased, resulting instantaneous death of the

deceased. A case in Crime No. 1 of 2009 was

registered by the Station House Officer, S.R. Puram

Police Station, against the driver of the offending

vehicle A.P.S.R.T.C. hire bus and subsequent to

completion of investigation, laid charge-sheet.

5) The 1st respondent filed counter and inter alia

pleaded that, the offending vehicle A.P.S.R.T.C. bus is a

hire bus and in view of an agreement entered in between

the 2nd respondent/owner and the 1st respondent/

A.P.S.R.T.C., the compensation has to be paid jointly by 2nd

respondent/owner and 3rd respondent/insurance

company/insurer and prays to dismiss the claim against

the 1st respondent.

6) The 2nd respondent/owner filed counter while

denying the material averments mentioned in the claim

application pleaded that the 1st respondent/A.P.S.R.T.C.

hired the offending vehicle bus of the 2nd respondent,

which was insured with the 3rd respondent/insurance

company and, as such, the insurer of the hired offending

vehicle is responsible to pay the claim arise under the

provisions of the M.V. Act and pleads to dismiss the

petition against him.

7) The 3rd respondent/insurance company filed counter

denying the material averments mentioned in the claim

application and pleaded inter alia that the insurance

company is not liable to pay any compensation in view of

the fact that at the time of accident, three persons were

proceeding on the motorcycle against the capacity of '2'

persons, which is in violation of Motor Vehicle Rules and

prays to dismiss the petition.

8) Based on the above pleadings of both the parties, the

following issues were settled for trial by the Tribunal:

i) Whether the deceased viz., M. Gowtham died due to receiving injuries in the motor vehicle accident that occurred on 14.1.2009 due to rash and negligent driving of the driver of A.P.S.R.T.C. hired bus bearing R. No. AP03 W 6849 of the respondent's vehicle hired with first respondent duly insured with the third respondent as alleged?

ii) Whether the petitioners being L.Rs. are entitled for the compensation amount? If so, what is the quantum of compensation amount and against whom?

iii) To what relief?

9) During the course of enquiry, on behalf of the

petitioners, PW1 to PW3 were examined and Ex.A1 to

Ex.A6 were marked. On behalf of the respondents, RW1

and RW2 were examined and Ex.B1 and Ex.B2 are

marked.

10) 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 driver of offending R.T.C. hire bus

and accordingly, allowed the claim petition in part against

all the respondents and awarded an amount of

Rs.1,64,500/- with interest at 7.5% per annum from the

date of petition till the date of realization. Aggrieved against

the order passed by the Tribunal, the

appellants/petitioners preferred the present appeal for

claiming remaining balance of compensation amount.

11) Heard learned counsels for both the parties and

perused the record.

12) Now, the point for determination is:

Whether the order of the Tribunal needs any interference of this Court? If so, to what extent?

13) POINT: The claim application is filed under Section

163 of M.V. Act. Therefore, there is no need for the

petitioners to prove the rash and negligent driving of the

driver of the offending vehicle. The petitioners have to

prove that the accident was occurred from out of the use of

offending vehicle. By giving cogent reasons, the Tribunal

arrived at a conclusion that the accident, in question,

occurred due to use of offending vehicle driven by its

driver. The respondents have not challenged the said

finding. Therefore, I do not find any illegality in the said

finding given by the Tribunal.

14) Coming to the compensation, the case of the

claimants is that, the deceased was the son of the 1st and

2nd claimants and brother of the 3rd claimant, as on the

date of accident, the deceased was aged about '17' years.

The deceased was a student and also working in Hemadri

Poultries, Diguvamedawada, as coolie in the morning and

evening hours on parttime basis during working days and

fulltime during holidays and he used to earn Rs.100/- and

Rs.250/- per day, respectively and contributing the same

to the family. Therefore, on considering the entire facts and

circumstances of the case, the monthly income of the

deceased was arrived at Rs.2,500/- per month and his

annual income is arrived at Rs.30,000/-. Since, the

deceased was bachelor, 50% of the income has to be

deducted towards personal expenses of the deceased. If the

50% is deducted, an amount of Rs.15,000/- is available to

the dependents. As stated supra, the deceased was aged

about '17' years as on the date of accident. So, the relevant

multiplier applicable to the age group of the deceased is

"16". Since, the claim application is filed under Section

163(A) of the M.V. Act, the loss of dependency is arrived at

Rs.2,40,000/- (Rs.15,000/- x 16). In addition to the above,

the Tribunal awarded an amount of Rs.2,000/- towards

'funeral expenses' of the deceased and an amount of

Rs.2,500/- was awarded towards 'loss of estate'. In total,

the claimants are entitled to an amount of Rs. 2,44,500/-.

Consequently, the claim of an amount of Rs.1,64,500/-

awarded by Tribunal is enhanced to Rs.2,44,500/-. On

appreciation of the entire evidence on record, the Tribunal

fastened the liability on all the respondents. No appeal or

cross-objections are filed by the respondents against the

said finding.

15) Learned Standing Counsel for the

A.P.S.R.T.C./appellant argued that, the offending vehicle

bus is hire bus, in view of the hire agreement vide Ex.B1,

the R.T.C. is not liable to pay the compensation and the

offending hire bus is insured with the 3rd

respondent/insurance company under Ex.B2-policy and

the same is in force. Therefore, on considering Ex.B1 and

Ex.B2, I find there is force in the contention taken by the

learned Counsel for the A.P. State Road Transport

Corporation.

16) The learned Standing Counsel for the A.P. State Road

Transport Corporation also placed reliance on the

judgment rendered in U.P. State Road Transport

Corporation Vs. Rajendri Devi & Ors.1 wherein in

paragraph No. 6 the Hon'ble Apex Court held as follows:

"6. The law laid down in Kulsum's case (supra) squarely applies to the facts of the present case. Also, the argument based on Clause 10, which states as follows:

"CLAUSE 10: The second party (Bus owner) shall have full liability for any fault, negligence, accident, or other illegal acts of the driver and liability for payment of any compensation or other dues whatsoever in this regard shall be that of the owner of the bus or Insurance Company under the Acts. In no case, the First party (Petitioner Corporation) shall have any liability for fault, negligence, accident, or other illegal acts of the driver. In case any payment is made by the First Party in compliance of any order of any Court, etc., the First Party shall be authorized to recover the same." is only between the Corporation

(2020) ACJ 1899

and the bus owner and does not bind anybody who is not privy to the aforesaid agreement, least of all, the victim.

7. In this view of the matter, the appeal is allowed and the sum awarded by the MACT will now be payable only by the Insurance Company with interest at the stated rate, within a period of three months from today."

17) Therefore, the proposition laid down in the aforesaid

decision squarely applicable to the present facts of the

case. Therefore, the 3rd respondent being an insurer of the

2nd respondent offending vehicle is having liability to pay

the enhanced compensation of Rs. 80,000/- with interest

as awarded by the Tribunal to the claimants. In view of the

Apex Court judgment as stated supra, the respondent

Nos.2 and 3 are jointly liable to pay the total compensation

to the claimants. The 3rd respondent being the insurer has

to indemnify the insured.

18) In the result, the appeal is partly allowed. The claim

of Rs.1,64,500/- awarded by Tribunal is enhanced to