Andhra Pradesh High Court - Amravati
The New India Assurance Co Ltd., ... vs Siraparapu Uma, Vizianagaram Dist 3 ... on 7 August, 2024
APHC010734152017
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3470]
(Special Original Jurisdiction)
WEDNESDAY ,THE SEVENTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO:
1379/2017
Between:
The New India Assurance Co Ltd., Srikakulam ...APPELLANT
AND
Siraparapu Uma Vizianagaram Dist 3 Others and ...RESPONDENT(S)
Others
Counsel for the Appellant:
1. AMANCHARLA SATISH BABU
Counsel for the Respondent(S):
1. P SRI RAMA MURTHY
The Court made the following:
2
HON'BLE SRI JUSTICE RAVI NATH TILHARI
AND
HON'BLE SRI JUSTICE NYAPATHY VIJAY
M.A.C.M.A.No.1379 of 2017
JUDGMENT:
(Per Hon'ble Sri Justice Nyapathy Vijay)
This Appeal is filed by the New India Assurance Company
Ltd., questioning the Order and Decree dated 08.09.2015
passed in M.O.P.No.66 of 2014 by the Motor Accident Claims
Tribunal (Special Judge for Trial of cases under S.Cs and S.Ts
(P.O.A) Act-cum-Additional District Judge, Vizianagaram.
2. For the sake of convenience, the parties are hereinafter
referred to as they were arrayed before the Tribunal.
3. The brief facts of the case are as under:
The claimants, the mother and wife of one Siripurapu
Suresh (hereinafter called as 'deceased'), had filed MOP
claiming compensation on account of the death of the deceased
for a sum of Rs.31,00,000/-. As per the claim, the deceased
was an employee in the Indian Army and was earning
Rs.20,000/- per month. On 11.06.2013, when the deceased got
down from the bus and while proceeding to Kottam for Kotamma
darshan on foot at about 2.00 p.m., an Auto bearing No. AP 35 V
3869 proceeding from the same direction from Kottam road
junction coming in a rash and negligent manner with high speed
knocked the deceased. As a result, the deceased sustained
multiple bleeding injuries and was shifted to Community Health
Centre, Srungavarapukota. Subsequently, the deceased was
referred to Naval Hospital, INHS Kalyani, Visakhapatnam. On
01.07.2013, the deceased succumbed to injuries.
4. The respondent No.1 was the driver of the auto which was
owned by respondent No.2. The respondent No.3 is the
Insurance company under valid policy by the date of accident. A
Crime No.139/2013 was registered for the offense punishable
under Section 304-A IPC against the driver of the Auto.
5. The respondent No.2-owner of the Auto filed counter
denying the accident and negligence on the part of the driver of
the auto. The respondent No.3-Insurance company filed a
written statement obviously denying every aspect of the claim.
6. In the course of examination on behalf of claimants,
P.Ws1 and 5 were examined, Exs.A.1 to A.6 were marked and
on behalf of respondents R.W.1 was examined, Ex.B.1 copy of
policy. The Ex.X.1 to X.3 were marked.
7. The Tribunal framed the following issues:
1. Whether the 1st respondent who is the
driver of offending vehicle auto bearing No. AP
35 V 3869 drove the same in a rash and
negligent manner and caused the accident?
2. Whether the petitioners are entitled to
compensation? If so, to what amount and which
respondents are liable to pay the compensation
amount?
3. To what relief?
8. After considering the oral and documentary evidence, the
Tribunal while answering Issue No.1 held that the accident occurred
due to rash and negligent driving of the driver of the Auto. While
answering Issue No.2, the Tribunal had adopted multiplier of 18 and
assessed Rs.15,000/- as the income of the deceased and
compensation was calculated by enhancing the same by 50% as the
age of the deceased was 25 years at the time of accident. The
Tribunal granted compensation of Rs.31,00,000/- with interest @ 7.5 %
per annum. Hence, the present Appeal is filed.
9. Heard Sri Amancharla Satish Babu, learned counsel for the
appellant and Sri P.Sri Rama Murthy representing Sri P.Gopala
Krishna, learned counsel for the Respondents.
10. The principal contention of the appellant is that there are no
eye witnesses to the accident and there is no proof that the insured
auto had hit the deceased on the fateful day. The counsel relied on
the judgment of the judicial Magistrate of I Class, Srungavarapukota
in C.C.No.211 of 2013 dated 06.08.2014 to contend that the driver
of the auto was exonerated by the criminal Court after taking into
consideration the evidence of P.Ws.2 and 4 herein, who were
examined as P.W.4 and P.W.2 respectively in the criminal case. No
other ground was urged by the appellant.
11. The counsel for the claimant contended that the Tribunal had
evaluated the evidence on record and had rightfully come to the
conclusion that the accident was caused by the auto driven by the
Jagadapu Avatharam. It was further contended that the evidence
before the Tribunal alone should be taken into consideration and the
evidence in the Criminal case cannot be looked into in the absence
of the same being confronted to the witnesses and marked in
evidence.
12. The issue that fall for consideration is: (a) Whether the
accident was caused on account of rash and negligent driving of the
driver of the auto bearing No.AP 35 B 3869 ?
13. Before analyzing the facts of the case, it is to be noted that
the standard of proof required to be adduced in a case for
compensation under Motor Vehicles Act is more on a touchstone of
preponderance of probability and proof beyond doubt is not required
to be established. This is the view taken by the Hon'ble Supreme
Court in Bimla Devi and Others V. Himachal Road Transport
Corporation and Others1. In the said case, the facts are similar
and the respondents had denied the very occurance of the accident.
While considering those aspects, the Hon'ble Supreme Court in
para 15 of the judgment observed as under:
15. In a situation of this nature, the Tribunal has rightly
taken a holistic view of the matter. It was necessary to be
borne in mind that strict proof of an accident caused by a
particular bus in a particular manner may not be possible
to be done by the claimants. The claimants were merely
to establish their case on the touchstone of
preponderance of probability. The standard of proof
beyond reasonable doubt could not have been
applied. For the said purpose, the High Court should have
taken into consideration the respective stories set forth by
both the parties.
2009 13 SCC 530
14. A similar view was taken in Mangla Ram v. Oriental
Insurance Company Limited and others2 and in Sunita and
others v. Rajasthan State Road Transport Corporation and
others3.
15. Now, in this appeal, this Court is called upon only to examine
the standard of proof on probability rather than absolute evidence.
P.W.2-Gedela Vijaya Babu in his deposition had stated that he had
noticed the auto dashing the deceased while going in a rash and
negligent manner. He deposed that the deceased was immediately
shifted to Srungavarapukota Hospital with the help of P.W.4 i.e.
Thannavarapu Nagarjuna. However, P.W.2 in the cross-
examination admitted that he is not sure as to which auto dashed
the deceased. Similar is the evidence of P.W.4. The post-mortem
report (Ex.A.2) of the deceased speaks about external injuries and
fractures to the right thigh. The nature of injuries indicate that the
deceased suffered those injuries in an accident. The evidence of
P.W.2, P.W.4 and post-mortem report (Ex.A.2) may not establish
the accident having been caused by the offending auto in this case,
(2018) 5 SCC 656
(2020) 13 SCC 486
but would certainly establish the occurrence of the accident on the
fateful day.
16. Further, the deceased was a signalman in the Army and there is
no reason for the family members of the deceased to make up a
case of accident for the purpose of compensation.
17. Coming to the evidence of P.W.5-A.Santosh Kumar, the then
S.I. of Police, Srungavarapukota Police Station, deposed that FIR
(Ex.A.1) was registered on 16.06.2013 under section 338 I.P.C.,
and the section of law was subsequently altered in view of the
fatality of the deceased to section 304-A I.P.C., on 01.07.2013.
P.W.5 had stated that the wife of the deceased i.e. P.W.1 had given
the complaint. On investigation, P.W.5 had stated that the accident
was caused by the offending auto driven by driver-Jagarapu
Avataram. The inclusion of the offending auto and the driver was
pursuant to an investigation done by P.W.5 and there is no
allegation of collusion between P.W.5 and the claimants.
18. In fact, Respondent Nos.1 and 2 i.e driver and owner of the
offending auto had filed their counter denying their liability and had
contested the case through their counsel. The RW.1 i.e
Administrative Officer of Insurance company though had deposed
alleging collusion between the claimants and respondent Nos.1 and
2, admitted that they did not give any complaint to the superior
police officers with regard to false implication and collusion. Further,
the RW.1 in his cross-examination deposed that they had appointed
an investigator with regard to accident, but the report of the
investigator was not filed into Court. No reason is given as to why
this report was withheld by the insurance company. In that
scenario, the Court can draw adverse inference that the report was
not filed into Court intentionally as there might be a finding in the
report contrary to the stand taken by the insurance company. (See:
Smt. Laxmibai vs. Karnataka State Road Transport, (2001) 5 SCC 59).
19. The other contention that the deceased did not name in the
auto, even though he survived for nearly three weeks after the
accident does not warrant any merit. A victim, due to trauma of the
accident, cannot be expected to remember the auto number and
driver. The immediate attention of the family members and passers
by would be to attend to the victim as done in this case.
20. This being a case of hit and run, it would be difficult to
establish the proof beyond reasonable doubt and in that context the
acquittal of the respondent No.1 i.e. driver of the offending auto in
the criminal case is of little consequence. As narrated above, the
standard of proof in both the cases is completely different.
21. The narration of accident by PW.2 and PW.4, along with post-
mortem report (Ex A.2), FIR (Ex.A.1), Charge sheet (Ex. A.2),
evidence of PW.5 and non-filing of the investigator report, claim by
Army man's family, makes the finding of the Tribunal that the
accident was caused by the offending auto driven by respondent
No.1 believable. The conclusion of the Tribunal, therefore, cannot
be said to be improbable and perverse.
22. Therefore, this Court does not find any reason to interfere with
the award passed by the Tribunal and the appeal, being bereft of
merits, is rejected. No order as to costs. As a sequel, the
miscellaneous petitions if any shall stand closed.
______________________
RAVI NATH TILHARI, J
___________________
NYAPATHY VIJAY, J
Date: 07.08.2024
KLP
