M.S.M. Up School, Visakhapatnam vs Sri Mattaparthi Satyanarayana 3 ...
2023 Latest Caselaw 4364 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 1942 of 2012

JUDGMENT:

The appellant is 1st respondent/owner and the respondents

are claim petitioners and respondent No.2 in M.O.P.No.181 of 2009

on the file of the Motor Accident Claims Tribunal-cum-IX Additional

District Judge (Fast Track Court), Visakhapatnam. The appellant

filed the appeal questioning the legal validity of the order of the

Tribunal.

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 166 of

the Motor Vehicles Act, 1988 read with Rule 455 of the A.P.M.V.

Rules, 1989 against the respondents claiming compensation of

Rs.4,00,000/- for the death of Mattaparthi Durga Rao, who is son of

VGKR,J MACMA No.1942 of 2012

petitioner Nos.1 and 2 and brother of 3 rd petitioner, in a motor

vehicle accident that took place on 24.11.2008.

4. The brief averments in the petition filed by the petitioners are

as follows:

On 24.11.2008 the deceased was on duty as a cleaner of

1st respondent's school bus bearing registration No.AP 31X 9732,

which is going towards Pendurthi from Kothavalasa, and due to his

rash and negligent driving of the said bus, the driver of the bus lost

control over the bus and dashed a road divider opposite to Saibaba

Temple at Pendurthi, Visakhapatnam, as a result, the school bus

turned turtle and the deceased sustained grievous injuries and died

on the spot. A case in Crime No.420 of 2008 was registered against

the driver of the school bus for the offence punishable under Section

304-A of IPC. The 1st respondent is owner and the 2nd respondent

is insurer of the bus, hence, both the respondents are jointly and

severally liable to pay compensation to the petitioners.

VGKR,J MACMA No.1942 of 2012

5. Both the respondents filed counters separately by denying the

manner of accident, age, avocation and income of the deceased.

i) It is pleaded that the 1st respondent paid an amount of

Rs.80,000/- to petitioner Nos.1 and 2 towards settlement of their

claim and the said amount has to be refunded after the petitioners

received compensation from the 2nd respondent.

ii) It is pleaded by the 2nd respondent/Insurance company that

the driver of the offending vehicle was not having valid driving

licence and the claim of the petitioners is very high.

6. Based on the above pleadings of both the parties, the

following issues were settled for trial by the Tribunal:

1) Whether the deceased Durga Rao died on account of rash and negligent driving of the driver of the crime vehicle i.e., School Bus bearing No.AP 31X 9732?

2) Whether the petitioners are entitled to claim compensation, if so, what amount and from whom?

3) To what relief?

VGKR,J MACMA No.1942 of 2012

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

the petitioners, P.Ws.1 and 2 were examined and Exs.A.1 to A.10

were marked. On behalf of the respondents, R.Ws.1 to 3 were

examined and Exs.B.1 to B.3 and Exs.X.1 to X.4 were marked.

8. 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

the offending school bus and accordingly, allowed the petition in part

and granted an amount of Rs.2,09,500/- towards compensation to

petitioner Nos.1 and 2 with proportionate costs and interest at 7.5%

p.a. from the date of petition till the date of deposit against the 1st

respondent/owner and dismissed the claim petition against the 2nd

respondent/Insurance company and rejected the claim of the 3rd

petitioner. Since the 1st respondent has already paid an amount of

Rs.80,000/- to petitioner Nos.1 and 2 towards settlement of their

claim, the Tribunal directed the 1st respondent to deposit the

remaining compensation amount of Rs.1,29,500/-. Aggrieved

VGKR,J MACMA No.1942 of 2012

against the said order, the appellant/1st respondent-owner preferred

the present appeal.

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

record.

10. Now, the point for determination is:

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

11. POINT: In order to prove the rash and negligent driving of

the driver of the offending school bus, the petitioners relied on the

evidence of P.Ws.1 and 2. P.W.1 is none other than the father of

the deceased and he is not an eye witness to the accident. P.W.1

reiterated the contents of the petition in his chief examination

affidavit. P.W.2 is an eye witness to the accident. As per his

evidence, his deceased son was travelling in the offending school

bus and the accident occurred due to rash and negligent driving of

the driver of the offending school bus. Nothing was elicited from the

cross examination of P.Ws.1 and 2 by the respondents and the

VGKR,J MACMA No.1942 of 2012

contra suggestions put to them were also denied by them. The

petitioners also relied on Ex.A.1-first information report and Ex.A.5-

charge sheet which clearly support the version of P.Ws.1 and 2. On

appreciation of the entire evidence on record, the Tribunal also

came to the conclusion that the accident took place on account of

rash and negligent driving of the driver of the offending school bus.

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

the Tribunal.

12. Coming to the compensation, though it is the case of the

petitioners that the deceased was working as cleaner in the

offending school bus belonging to the 1st respondent and drawing

salary of Rs.4,500/- per month, they did not file any documentary

evidence to prove their case. However, by giving cogent reasons,

the Tribunal fixed the monthly income of the deceased as Rs.3,000/-

i.e., Rs.36,000/- per annum. Since the deceased is not married, the

Tribunal took the age of the 2nd petitioner, who is aged 38 years as

mentioned in the petition, being mother of the deceased and by

applying the multiplier '16' applicable to the age group of the mother

VGKR,J MACMA No.1942 of 2012

of the deceased/2nd petitioner, the Tribunal granted an amount of

Rs.5,76,000/- (Rs.36,000/- x multiplier '16') under the head of loss of

earning capacity. Since the petitioners claimed Rs.1,50,000/- only

in the claim petition under the head of loss earning capacity, the

Tribunal restricted the claim of the petitioners to Rs.1,50,000/-. In

addition to that, the Tribunal granted an amount of Rs.50,000/-

towards loss of love and affection, Rs.2,500/- towards loss of estate,

Rs.3,000/- towards loss of earnings, Rs.1,000/- towards transport to

the hospital, Rs.1,000/- towards damage to clothes and articles and

Rs.2,000/- towards funeral expenses of the deceased. By giving

cogent reasons, the Tribunal came to the conclusion that the

petitioners are entitled to a total compensation of Rs.2,09,500/-.

The compensation amount of Rs.2,09,500/- awarded by the Tribunal,

in my opinion, is just and reasonable. No appeal or cross-objections

is filed by the petitioners for enhancement of the compensation.

Therefore, there is no legal flaw or infirmity in the said finding given

by the Tribunal in awarding the quantum of compensation.

VGKR,J MACMA No.1942 of 2012

13. Coming to the liability, the evidence of R.Ws.2 and 3 and

Ex.B.1-policy clearly goes to show that the sitting capacity of the

offending school bus is 17 and the policy covers the liability of 16

passengers + one employee i.e., the driver of the bus and no extra

premium was paid or collected for the cleaner of the bus. Moreover,

there is no recital in Ex.B.1 policy that the policy covers 16

passengers including the cleaner of the bus. On considering the

evidence of R.Ws.2 and 3 coupled with Ex.B.1 policy and by

applying the decision of this Court in New India Assurance

Company Vs. Shanta reported in 2009 (1) An.W.R. 641 and also

the decision of the High Court of Kerala in Rajan Vs. Parvathi

reported in 2010 (2) An.W.R. 251, the Tribunal held in its order that

the 2nd respondent/Insurance company is not liable to pay the

compensation to the petitioners and the 1st respondent being the

owner of the offending school bus is liable to pay the compensation.

The Tribunal also held in its order that since P.W.1 admitted in his

cross-examination that they received Rs.80,000/- from the 1st

respondent by way of cheques, the said amount has to be deducted

VGKR,J MACMA No.1942 of 2012

from the total compensation payable to the petitioners. There is no

legal flaw or infirmity in the said findings given by the Tribunal.

14. In view of the foregoing reasons, this Court finds that there are

no merits in the appeal and the appeal is devoid of merits, therefore,

it is liable to be dismissed.

15. Accordingly, the appeal is dismissed, while confirming the

decree and order dated 10.03.2011 passed by the Chairman, Motor

Accident Claims Tribunal-cum-IX Additional District Judge (Fast

Track Court), Visakhapatnam, in M.O.P.No.181 of 2009. No order

as to costs.

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

appeals shall stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 20 September, 2023 cbs

VGKR,J MACMA No.1942 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 1942 of 2012

20th September, 2023 cbs