Shaik Peran Peer vs Apsrtc, Rep.By Itsmd, ...
2023 Latest Caselaw 5200 AP

THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

               M.A.C.M.A. No. 3811 of 2012

JUDGMENT: -

1)   Aggrieved by the impugned Judgment and Decree,

dated 10.11.2006, passed in M.V.O.P. No. 737 of 2005 on

the file of the Motor Accident Claims Tribunal-cum-IV

Additional District Judge, Kurnool, whereby, the claim of

the Claimant was dismissed by the Tribunal; this instant

Appeal is preferred by the claim petitioner questioning the

legal validity of the Judgment passed by the Tribunal and

also claiming compensation 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)   Sri. Shaik Peeran Peer [the 'claim petitioner'] filed

the petition under Sections 140 and 166 of the Motor

Vehicles Act, 1988, [the 'M.V. Act'] against the respondents

claiming compensation of Rs.1,00,000/- for the injuries

sustained by him in a motor vehicle accident that occurred
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on 09.12.2001 due to rash and negligent driving of the

driver of the 1st respondent A.P.S.R.T.C. bus bearing

registration No. AP11 Z 593.


4)    Facts

germane to dispose of the Appeal in brief as

follows: -

i. On 09.12.2001, while the petitioner and his mother,

father and his two brothers along with some others

were traveling in a auto bearing registration No.AP09

V 2096 from Kodumur to Puttapasam and after the

auto crossed Vemugodu village, one A.P.S.R.T.C. bus

bearing registration No. AP11 Z 593 came in opposite

direction from Yemmiganur in a rash and negligent

manner with high speed and dashed against the auto

bearing registration No. AP09 V 2096, in which the

petitioner was travelling, resulting the petitioner

received grievous injuries on left upper arm and right

leg. The Police registered a case against the driver of

the 1st respondent/A.P.S.R.T.C. vehicle bus under the

relevant provisions of the Indian Penal Code, 1860

['I.P.C.']. The 1st respondent is the owner of

A.P.S.R.T.C. bus; the 2nd respondent is the owner-

cum-driver of auto; and the 3rd respondent is insurer

of the auto and, thus, all the respondents are jointly

and severally liable to pay compensation to the

petitioner.

5) The 2nd respondent remained ex parte. The 1st

respondent/A.P.S.R.T.C., filed counter denying the claim of

the claimant as excessive and exorbitant and pleaded that,

the seating capacity of the auto is only 10 persons

including driver, but the driver of the auto permitted 18

persons excluding driver in the auto and due to overload,

the driver of the auto unable to observe the R.T.C. bus

coming, which resulted in the accident and, as such, no

negligence can be attributed to the driver of the respondent

bus and, hence, prays to dismiss the claim against the 1st

respondent/A.P.S.R.T.C.

6) The 3rd respondent/insurance company filed counter

while denying the claim of the Claimant pleaded that the

accident occurred due to sole negligence of the driver of the

A.P.S.R.T.C. bus but not by the driver of the auto bearing

registration No. AP9 V 2096. It was further pleaded that, as

per the terms and conditions of the policy and the

premium received, only six persons are permitted to travel

in the auto besides the driver, but at the time of accident,

17 persons were traveling in the auto, as such, the 3 rd

respondent is under 'No Fault Liability" and therefore is not

liable to pay any compensation. It was further pleaded

that, if any decree is passed against the 3rd

respondent/insurance company, the 3rd

respondent/insurance company may be permitted to

recover the same from the 2nd respondent/owner and,

accordingly, prays to dismiss the petition against the

insurance company.

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 09.12.2001 at about 3.15 P.M. was due to rash and negligent driving on the part of the driver of the A.P.S.R.T.C. bus bearing No.AP11 Z 593 belonging to the first respondent or due to the negligence on the part of the driver of the auto bearing No.AP09 2096 belonging to the third respondent in which the petitioner is travelling?

2) Whether the petitioner is entitled to claim compensation, if so to what amount and from which of the respondents?

3) To what relief?

8) During the course of enquiry in the claim petition, on

behalf of the petitioner, PW1 and PW2 were examined and

Ex.A1 to Ex.A3 and Ex.X1 were marked. On behalf of the

3rd respondent, RW1 and RW2 were examined and Ex.B1

to Ex.B4 were marked.

9) At the culmination of the enquiry, based on the

material available on record, the Tribunal came to the

conclusion that the claimant failed to prove negligence on

the part of the driver of the offending vehicle and,

accordingly, dismissed the petition of the claim petitioner.

Aggrieved against the dismissal of claim petition, the

appellant/petitioner preferred the present appeal.

10) Heard learned counsels for both the parties and

perused the record.

11) Now, the point for determination is:

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

ii) Whether the appellant/claimant is entitled to the relief of compensation, as prayed for?

12) POINT Nos. (i) & (ii): The case of the claimant is

that, on 09.12.2001, himself and his mother, father and

his two brothers along with some others were traveling in a

auto bearing registration No.AP09 V 2096 from Kodumur

to Puttapasam and after the auto crossed Vemugodu

village, one A.P.S.R.T.C. bus bearing registration No. AP11

Z 593 came in opposite direction from Yemmiganur side in

high speed in a rash and negligent manner and dashed

against the auto bearing registration No. AP09 V 2096,

resulting the petitioner fell down and received grievous

injuries on left upper arm and right leg.

13) In order to prove the case of the claimant, the

petitioner relied on the evidence of PW1 and PW2. PW1 is

aged about 16 years at the time of accident. As per his

evidence, on the date of accident, himself, his parents

along with two others boarded an auto bearing registration

No.AP09 V 2096 and after crossing Vemugodu village, one

A.P.S.R.T.C. bus bearing registration No. AP11 Z 593

driven by its driver in a rash and negligent manner and

dashed the auto, due to that the petitioner and others fell

down and he sustained injuries and one Harijana

Nagamma died in the said accident.

14) In order to prove the injuries, the petitioner relied on

the evidence of PW2 - the doctor, who treated PW1 and so

also relied on Ex.A1 - certified copy of F.I.R., Ex.A2 -

certified copy of original O.P. chit and Ex.A3 - certified

copy of bunch of medical bills. The material on record also

reveals that by the time of accident, the auto was

overloaded with several passengers and seating capacity of

the auto is '10' persons including the driver, but at the

time of accident '18' persons excluding the driver were

travelling in the said auto and the negligence of the driver

of the auto for overloading the vehicle cannot be ruled out.

Therefore, on considering the entire material on record,

because of the rash and negligent driving of the driver of

the A.P.S.R.T.C. bus and so also the negligence on the part

of the auto in overloading the auto, the accident in

question occurred and, therefore, the negligence of the

driver of the R.T.C. is arrived at 75% and negligence of the

driver of the auto is arrived at 25%.

15) Learned Counsel for both the parties represented

that, in the same accident several others were injured and

one Harijana Nagamma died. The learned Standing

Counsel for the 3rd respondent/Insurance Company would

submit that, their liability is only for six cases as per Ex.B1

policy and Insurance Company paid the apportionment of

20% in six cases as per the orders of composite High Court

dated 24.06.2010 in C.M.A.Nos.915 of 2004 and batch. I

have perused the copy of order of composite High Court

placed on record. In the said order, the composite High

Court held that "the liability of appellant/Insurance

Company is in respect of six cases only as per policy and in

other cases, the owner of the auto is liable to pay the

compensation of liability fixed on the Insurance Company,

because the Insurance Company is not liable in view of the

condition of the policy". The owner of the auto is a party in

the above appeals before the composite High Court. For the

foregoing reasons, insurance Company is not liable to pay

the compensation of 25% fixed by this Court; but the 2nd

respondent/owner of the auto in claim application is liable

to pay the said 25% of the compensation fixed by this

Court.

16) Coming to the compensation, the material on record

reveals that the petitioner sustained grievous injuries in

the said accident. In order to prove the same, the petitioner

relied on the evidence of PW2 - the doctor who treated the

petitioner, but wound certificate is not at all filed by the

petitioner. On considering the entire material on record,

since the petitioner sustained grievous injury, I am of the

considered view that it is desirable to award an amount of

Rs.20,000/- for 'grievous injuries' sustained by the

petitioner. On considering Ex.A3 - bunch of medical bills,

an amount of Rs.1,334/- is awarded towards 'medical

expenses' and an amount of Rs.5,000/- is awarded

towards 'transport charges and attendant charges' and so

also nutrition of food. In total, the claimant is entitled to

total compensation of Rs.26,334/- towards total

compensation.

17) As stated supra, since the negligence on the part of

the driver of the R.T.C. bus is arrived to an extent of 75%,

the 1st respondent/A.P.S.R.T.C. is liable to play 75% of

Rs.26,334/- i.e. Rs.19,750/- and the remaining balance

amount of Rs.6,584/- is to be paid by the 2nd

respondent/owner of the auto to the claim petitioner.

18) In the result, the appeal is partly allowed setting

aside the Award of the Tribunal, dated 10.11.2006, passed

in M.V.O.P. No. 737 of 2005. Consequently, the claim

application in M.V.O.P. No. 737 of 2005 on the file of the

Motor Accident Claims Tribunal-cum-IV Additional District

Judge, Kurnool, is partly allowed by granting compensation

of Rs.26,334/- to the claimant towards total compensation

with interest @ 6% per annum from the date of petition till

the date of realization. The 1st respondent is directed to

deposit the compensation of Rs.19,750/- and 2nd

respondent is directed to deposit Rs.6,584/-, as stated

supra, with interest at 6% per annum before the Tribunal,

as ordered by this court, within two months from the date

of this judgment. On such deposit, the claimant is entitled

to withdraw the entire compensation amount with costs

and interest therein. No order as to costs.

19) As a sequel, miscellaneous petitions, if any, pending

in the Appeal shall stand closed.

_____________________________ V.GOPALA KRISHNA RAO, J Date: 30.10.2023 sm

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 3811 of 2012

.10.2023

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