Ediga Lakshmi vs M Vijaya Kumar Another
2023 Latest Caselaw 5202 AP

THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

               M.A.C.M.A. No. 2762 of 2015

JUDGMENT: -

1)    Aggrieved by the impugned Judgment and Decree,

dated 10.02.2009, passed in M.V.O.P. No. 119 of 2007 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 Order passed by the Tribunal and also

claiming compensation of Rs.8,00,000/- on account of

death of her husband E. Narasimha [the 'deceased'] that

took place on 05.07.1998.


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)    Facts

germane to dispose of the Appeal in brief as

follows: -

i. On 05.07.1998 at about 8.30 P.M., the deceased -

E.Narasimha while crossing the road from Gadwal

road to Shakpalli road on NH7 at Yerravalli

Chowrastha, at that time, one LMV jeep bearing

registration No. APH 855 proceeding towards

Hyderabad side to Kurnool, the driver of the jeep

drove the jeep in a rash and negligent manner with

high speed and dashed against the deceased from

behind, resulting the deceased sustained grievous

injuries and died at the spot itself. The Police

registered a case against the driver of the 1st

respondent vehicle jeep under the relevant provisions

of the Indian Penal Code, 1860 ['I.P.C.']. The 1st

respondent is the owner and the 2nd respondent is

insurer of the jeep. Hence, both the respondents are

jointly and severally liable to pay compensation to the

petitioner.

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

respondent/insurance company filed counter while

denying the claim of the Claimant pleaded that the 1st

respondent driver was not having a valid driving license

and that no subsisting and valid insurance coverage was

provided to the offending vehicle jeep owned by the 1st

respondent. It was further pleaded that, if any decree is

passed against the 2nd respondent/insurance company, the

same to be restricted as per the terms and conditions of

the policy and as per the premium amount paid and permit

the 2nd respondent/insurance company to recover the

same from the 1st respondent/owner and, hence, prays to

dismiss the petition.

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

following issues were settled for trial by the Tribunal:

1) Whether the deceased E. Narasimha died in a motor accident that was occurred on 5-7-1998 at about 8.30 P.M. on account of rash and negligent driving of the driver of jeep bearing No. APH 855 which belongs to the first respondent?

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

3) To what relief?

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

behalf of the petitioner, PW1 and PW2 were examined and

Ex.A1 to Ex.A5 were marked. On behalf of the 2nd

respondent, RW1 and RW2 were examined and Ex.B1 to

Ex.B3 were marked.

7) 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.

8) Heard learned counsels for both the parties and

perused the record.

9) 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?

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

that, on 05.07.1998 at about 8.30 P.M., while the deceased

was crossing the road from Gadwal road to Shakpalli road

on NH7 at Yerravalli Chowrastha, the driver of jeep bearing

registration No. APH 855 proceeding towards Hyderabad

side to Kurnool, drove the jeep in a rash and negligent

manner with high speed and dashed against the deceased

from behind, resulting instantaneous death of the

deceased.

11) In order to prove the rash and negligent driving of the

driver of the offending vehicle, the petitioner relied on the

evidence of PW1 and PW2. No doubt PW1 is not an eye

witness to the accident. PW2 is an eye witness to the

accident. As per PW2's evidence, the accident in question

occurred due to rash and negligent driving of the driver of

the offending vehicle jeep bearing registration No. APH 855.

The Tribunal disbelieved the evidence of PW2. The date of

accident is on 05.07.1998. A report was given to the police

on the very next day morning by the Village Administrative

Officer by mentioning the same in the report that on the

night of yesterday i.e., 05.07.1998 at about 8.30 P.M., one

unknown vehicle came in a high speed and from behind

dashed against the deceased, at that time, the deceased

was crossing NH7 road, the same was informed to him by

some persons present near a hotel. The F.I.R. was

registered against the driver of the offending vehicle. Ex.A1

is the certified copy of the F.I.R. and Ex.A2 is the certified

copy of the charge-sheet filed by the police against the

driver of the offending jeep bearing registration No.APH

855, by name, G. Pandu, by the Sub-Inspector of Police,

Itikayala Police Station. Ex.A2 goes to show that the Sub-

Inspector of Police took up investigation, in this case, and

after completion of investigation laid charge-sheet against

the driver of the offending vehicle jeep by fixing the liability

on the driver of the jeep.

12) I have perused the evidence of PW2. PW2 is an eye

witness to the accident. The learned Counsel for the

Insurance Company pleaded that, PW2 admitted in his

evidence in cross-examination that he cannot say the exact

time of the accident and he cannot say exact date of

accident. Here the date of accident is 05.07.1998. PW2

gave evidence after 10 years of the accident. Therefore, it is

not possible to any human being to speak exactly what was

happened at about 10 years ago.

13) Another contention taken by the learned Counsel for

the respondent/insurance company is that the claim

application is filed after nine years of the accident by the

claimant. The law is well settled that there is no prescribed

limitation under the Motor Vehicle Act for filing a claim

petition before the Tribunal. Therefore, I am of the

considering view that there is no force in the contention

taken by the learned Counsel for the 2nd

respondent/insurance company. Though, PW2 was cross-

examined by the learned Counsel for the 2nd respondent

before the Tribunal, nothing was elicited from PW2 to

discredit the testimony of PW2. Though, the investigating

office was also summoned as a witness by the insurance

company and he was examined as RW2, nothing was

elicited from RW2 to disprove the accident.

14) RW2 - Sub-Inspector of Police, clearly stated in his

evidence that after completion of investigation, a charge-

sheet was laid against the driver of the offending vehicle

jeep bearing registration No. APH 855 by fixing the liability

on the driver of the offending vehicle. Therefore, on

considering the entire material on record, I am of the

considered view that the claimant proved that the accident

in question occurred due to rash and negligent driving of

the offending vehicle jeep in which her husband died in a

motor vehicle accident at the spot itself.

15) The 2nd respondent/insurance company examined its

Administrative Officer as RW1. As per the own admission of

RW1 in the cross-examination, the offending vehicle is

insured with the 2nd respondent/insurance company and

the policy is in force. The evidence of RW1 clearly goes to

show that the offending vehicle is insured with the 2nd

respondent/insurance company and the policy is in force.

It is not the contention of insurance company that the

driver of the offending vehicle jeep is not having driving

license, at the time of accident, and that there are any

violations to the policy.

16) The claim of the claimant is that, the deceased used

to earn Rs.36,000/- per annum by working as driver at

P.J.P. Camp, Assistant Engineer Office ar Revulapalli, but,

in order to prove the same, no evidence is adduced by the

claimant. Therefore, on considering the entire evidence on

record, since the accident occurred in the year 1998 and in

those days an agricultural coolie can easily earn between

Rs.50/- to Rs.100/- per day, the monthly income of the

deceased was arrived at Rs.1,800/- per month [Rs.60/- per

day] and annual income as Rs.21,600/- per annum

[Rs.1,800/- x 12]. Since, the petitioner/wife is the only

dependent on the deceased, therefore, as per the decision

of Sarla Varma Vs. Delhi Transport Corporation1, 1/3rd

amount has to be deducted towards personal expenses of

the deceased. If 1/3rd is deducted from out of Rs.21,600/-,

an amount of Rs.14,400/- is available to the dependent

[Rs.21,600/- - Rs.7,200/-]. Ex.A3 - inquest certificate and

2009 (4) SCJ 91

Ex.A4 post-mortem certificate clearly goes to show the age

of the deceased was '35' years and the relevant multiplier

applicable to the age group of the deceased is "16".

Therefore, Rs.2,30,400/- [Rs.14,400/- x 16] is awarded

towards 'loss of dependency'. An amount of Rs.5,000/- is

awarded towards 'loss of consortium' to the claimant; an

amount of Rs.5,000/- is awarded towards 'loss of estate'.

In total, a sum of Rs.2,40,400/- is awarded towards

compensation to the claimant.

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

aside the Award of the Tribunal, dated 10.02.2009, passed

in M.V.O.P. No. 119 of 2007. Consequently, the claim

application in M.V.O.P. No. 119 of 2007 on the file of the

Motor Accident Claims Tribunal-cum-IV Additional District

Judge, Kurnool, is partly allowed by granting compensation

of Rs.2,40,400/- to the claimant towards total

compensation with interest @ 6% per annum from the date

of petition till the date of realization. The 1st and 2nd

respondents are directed to deposit the compensation of

Rs.2,40,400/- 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.

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

in the Appeal shall stand closed.

_____________________________ V.GOPALA KRISHNA RAO, J Date: .10.2023 sm

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 2762 of 2015

.10.2023

sm