Royal Sundaram Alliance ... vs B Thulasi 4 Others
2023 Latest Caselaw 4122 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

         M.A.C.M.A.No.1836 of 2013 and 1402 of 2014


COMMON JUDGMENT:


     Questioning the legal validity of the award dated 01.03.2013

passed by the Chairman, Motor Accident Claims Tribunal-cum-IV

Additional District Judge, Tirupati, in M.V.O.P.No.224 of 2011

whereby the Tribunal awarded compensation of 20,88,000/- to the

petitioners and directed the 1st respondent to deposit 75% of

compensation and respondent Nos.2 & 3 to deposit 25% of

compensation before the Tribunal, the 1st respondent/APSRTC filed

M.A.C.M.A.No.1836 of 2013 while the 3rd respondent/Insurance

company filed M.A.C.M.A.No.1402 of 2014.


2.   Since both the appeals arose from out of one decree and order

passed in M.V.O.P.No.224 of 2011, they are heard together and are

being disposed of by this common judgment.
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                                                     MACMA.No.1836 of 2013&
                                                     MACMA No.1402 of 2014



3.    For the sake of convenience, both the parties in the appeals will

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


4.    The claim petitioners filed the petition under Section 163-A of

the Motor Vehicles Act, 1988 (for short 'the Act') against the

respondents claiming compensation of Rs.32,02,000/- for the death

of B. Gopi, who is husband of 1st petitioner and father of petitioner

Nos.2 and 3, in a road accident that took place on 29.04.2011.


5.    Facts

germane to dispose of the appeals may briefly be stated

as follows:

On 28.04.2011 the deceased was driving Garuda Volvo Bus

bearing registration No.AP 28Z 1436 plying from Tirupati to

Hyderabad and when the said bus reached BSNL Tower near

Thammarajupalli Village, Panyam Mandal, Kurnool District, at about

3.00 a.m. on 29.04.2011, due to fog in the early hours and reflection

of lights from the opposite coming vehicles, the driver of the bus

unable to notice a stationed lorry bearing registration No.KA39 5846,

VGKR,J MACMA.No.1836 of 2013& MACMA No.1402 of 2014

which was parked without any parking lights, signals and indications

to identify the lorry, dashed on the back side of the lorry, as a result,

the driver of the bus sustained bleeding injuries and later succumbed

to injuries while undergoing treatment in the G.G.H., Kurnool. The 1st

respondent is owner of the bus, the 2nd respondent is owner of the

lorry, the 3rd respondent is insurer of the lorry, hence, all the

respondents are jointly and severally liable to pay compensation to

the petitioner.

6. The 2nd respondent was set ex parte. Respondent Nos.1 and 3

filed counters separately by denying the manner of accident, age,

avocation and income of the deceased.

i) It is pleaded by the 1st respondent/APSRTC that there is sole

negligence on the part of the driver of the stationed lorry, since he

parked the lorry negligently on the road without taking any

precautions, there is no negligence on the part of the driver of the bus,

as such, the 1st respondent is not liable to pay any compensation.

VGKR,J MACMA.No.1836 of 2013& MACMA No.1402 of 2014

ii) The 3rd respondent/Insurance company pleaded that the

accident occurred only due to rash and negligent driving of the driver

of the bus, a complaint was lodged by one of the passengers of the

bus against the driver of the bus for his rash and negligent driving of

the bus, there is no negligence on the part of the driver of the

stationed lorry, as such, the Insurance company is not liable to pay

any compensation.

7. Based on the above pleadings, the following issues were

framed for trial by the Tribunal:

1) Whether the deceased viz., B. Gopi died due to receiving injuries in the motor vehicle accident that occurred on 29.04.2011 near BSNL towers of Thummarajupalli on NH 16, Panyam Mandal, Kurnool District, due to rash and negligent driving of the driver of lorry bearing regn.No.KA39 5846 of second respondent vehicle and APSRTC bus bearing regn.No.AP 28Z 1436 as alleged?

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

VGKR,J MACMA.No.1836 of 2013& MACMA No.1402 of 2014

3) To what relief?

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.5 and

Exs.X.1 and X.2 were marked. On behalf of the respondents, no oral

or documentary evidence was adduced.

9. At the culmination of the enquiry, based on the material on

record, the Tribunal came to the conclusion that the accident occurred

due to contributory negligence on the part of the drivers of both the

RTC bus and the stationed lorry and accordingly, allowed the petition

in part and granted a total compensation of Rs.20,88,000/- with

proportionate costs and interest at 7.5% p.a. from the date of petition

till the date of payment against respondent Nos.1 to 3 and directed

the 1st respondent to deposit 75% of compensation and respondent

Nos.2 & 3 to deposit 25% of compensation before the Tribunal.

Aggrieved thereby, the 1st respondent/APSRTC filed

VGKR,J MACMA.No.1836 of 2013& MACMA No.1402 of 2014

M.A.C.M.A.No.1836 of 2013, while the 3rd respondent/Insurance

company filed M.A.C.M.A.No.1402 of 2014.

10. Heard learned counsels for both the parties and perused the

record.

11. Now, the point for determination is:

Whether the order of the Tribunal needs any interference, if so, to what extent?

12. POINT: The claim petition was filed under Section 163-A of

the Act. As per Section 163-A of the Act, involvement of vehicle in

the accident is sufficient for granting compensation and there is no

need to prove rash and negligent driving of the driver of the offending

vehicle.

13. In order to establish their case, the petitioners relied on the

evidence of P.Ws.1 and 3. P.W.1 is none other than the wife of the

deceased and she is not an eye witness to the accident. She

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reiterated the contents of the petition in her chief-examination affidavit.

In cross-examination, she stated that due to negligence of the lorry

driver, who stationed the lorry on the main road without signals, the

accident took place and there was no fault with her husband and she

denied the suggestions put to her by the learned counsels for the

respondents that the accident took place out of negligence of her

husband and there is no fault with the driver of the lorry.

14. P.W.3, who is the co-driver of the offending bus at the time of

accident, in his evidence deposed that on the date of accident, due to

fog in the early hours and reflection of lights from the opposite coming

vehicles, the driver of the bus unable to notice the stationed lorry,

which was parked without any parking lights, signals and indication to

identify the lorry, dashed on the back side of the lorry, due to which,

the driver of the bus sustained severe bleeding injuries and later died

on the same day while undergoing treatment in the G.G.H., Kurnool.

In cross examination, he stated that the accident occurred only due

to negligence of the driver of the lorry as he parked the lorry without

VGKR,J MACMA.No.1836 of 2013& MACMA No.1402 of 2014

taking any precautions and he also denied the contra suggestions put

to him by the learned counsels for the respondents.

15. Except cross-examining P.Ws.1 and 3, no oral or documentary

evidence was adduced by the respondents. Moreover, the

respondents did not choose to examine at least the driver of the

stationed lorry as he is the best person to speak about the manner of

accident and to establish their case that he parked the lorry by taking

all precautions and there is no negligence on his part.

16. Ex.A.1-certified copy of first information goes to show that a

case was registered against the driver of the bus. Ex.A.5-certified

copy of final report reveals that the driver of the bus drove the same

in a rash and negligent manner and hit behind the stationed lorry.

Ex.A.2-certified copy of inquest report and Ex.A.3-certified copy of

post mortem report of the deceased go to show that the deceased

died in the accident in question. Ex.A.4-certified copy of M.V.I. report

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reveals that the accident was not due to any mechanical defects of

the bus.

17. On considering the entire material on record, it is clear that the

lorry was wrongly parked on the road without putting on parking lights,

signals, indicators, etc. and without taking proper care and the driver

of the RTC bus came in a rash and negligent manner and dashed

against the stationed lorry. In view of the same, this Court finds that

the accident occurred due to contributory negligence on the part of

the drivers of the RTC bus and the stationed lorry and by the use of

the said vehicles the accident took place in which the deceased

sustained severe bleeding injuries and later succumbed to injuries.

On appreciation of the material on record, the Tribunal also came to

the same conclusion. There is no legal flaw or infirmity in the said

finding given by the Tribunal.

18. Coming to the award of compensation, on considering Ex.X.1-

salary certificate of the deceased and Ex.A.2-inquest report and

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Ex.A.3-post mortem report, the Tribunal arrived the net monthly

income of the deceased at Rs. Rs.15,000/- i.e., Rs.1,80,000/- per

annum and also came to the conclusion that the deceased was aged

below 50 years. Since the deceased was a permanent employee in

the 1st respondent corporation, the Tribunal rightly added 30% of

salary towards future prospects and arrived the annual income of the

deceased at Rs.2,34,000/- (Rs.1,80,000/- + Rs.54,000/-). After

deducting 1/3rd from out of annual income towards personal expenses

of the deceased and by applying the multiplier '13' to the age group

of the deceased, the Tribunal arrived the loss of dependency of family

members of the deceased at Rs.20,28,000/- (Rs.1,56,000/-

(Rs.2,34,000/- - Rs.78,000/-) x multiplier '13'). In addition to that, the

Tribunal granted Rs.5,000/- towards funeral expenses of the

deceased, Rs.15,000/- towards loss of estate, Rs.15,000/- towards

loss of love and affection, and Rs.25,000/- towards loss of consortium

to the 1st petitioner. By giving cogent reasons, the Tribunal came to

the conclusion that the petitioners are entitled to a total compensation

VGKR,J MACMA.No.1836 of 2013& MACMA No.1402 of 2014

of Rs.20,88,000/-. No appeal or cross-objections is filed by the

petitioners for enhancement of the compensation. Therefore, there is

no need to interfere with the said finding given by the Tribunal in

awarding the quantum of compensation.

19. Coming to the liability, as stated supra, the accident occurred

due to contributory negligence on the part of both the drivers of the

RTC bus and the lorry. The Tribunal, by giving cogent reasons, fixed

75% negligence on the part of the driver of the bus belonging to the

1st respondent/APSRTC and directed the 1st respondent to pay 75%

of compensation with interest at 7.5% p.a. from out of Rs.20,88,000/-

and 25% negligence on the part of the driver of the stationed lorry

belonging to the 2nd respondent and directed the respondent Nos.2

and 3 i.e., insured and insurer of the lorry to pay the remaining 25%

of compensation i.e., Rs.5,22,000/- with interest at 7.5% p.a. thereon .

There is no legal flaw or infirmity in the said finding given by the

Tribunal.

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20. For the foregoing discussion, I do not find any illegality or

irregularity in the impugned order of the Tribunal and it is perfectly

sustainable under law and the appeal is devoid of merits, therefore, it

is liable to be dismissed.

21. Accordingly, both the appeals are dismissed, while confirming

the decree and order dated 01.03.2013 passed by the Chairman,

Motor Accident Claims Tribunal-cum-IV Additional District Judge,

Tirupati, in M.V.O.P.No.224 of 2011. No order as to costs.

Miscellaneous petitions, if any, pending in the appeals shall

stand closed.

______________________________ V.GOPALA KRISHNA RAO,J 8th September, 2023 cbs

VGKR,J MACMA.No.1836 of 2013& MACMA No.1402 of 2014

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.1836 of 2013 and 1402 of 2014

8th September, 2023 cbs