Andhra Pradesh High Court - Amravati
United India Insurance Co Ltd., Tpt., ... vs Veluru Swarupa, Chittoor Dist 4 Others on 4 July, 2024
APHC010294812017
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3364]
THURSDAY, THE FOURTH DAY OF JULY TWO THOUSAND AND
TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2198/2017
Between:
1. UNITED INDIA INSURANCE CO LTD., REP. BY ITS DIVISIONAL
MANAGER AT SRI DEVI COMPLEX, TILAK ROAD, TIRUPATHI.
...APPELLANT/RESPONDENT-2.
AND
1. VELURU SWARUPA, W/O LATE V. BHASKAR, 29 YEARS,
2. VELURU RADHAKRISHNA, S/O LATE V. BHASKAR, 9 YEARS,
MINOR,
3. VELURU AKANKSHYA PRIYA, D/O LATE V. BHASKAR, 4
YEARS, MINOR,
4. VELURU VARALAKSHMAMMA (DIED),
RESPONDENTS 2 & 3 ARE BEING MINORS REP. BY
MOTHER/R-1.
ALL ARE R/O D.NO.3/812, NEHRU STREET, SRIKALAHASTHI,
CHITTOOR DISTRICT.
...RESPONDENTS/CLAIMANTS.
5. G. SURESH BABU NAIDU, S/O KRISHNAMA NAIDU, MAJOR,
R/O TATIPARTHY VILLAGE, POYYA, THOTTAMBEDU MANDAL,
CHITTOOR DISTRICT.
...RESPONDENT/RESPONDENT-1.
2
Counsel for the Appellant:
1. SRINIVASA RAO VUTLA
Counsel for the Respondents:
1. T C KRISHNAN
2. A CHANDRAIH NAIDU
The Court made the following:
JUDGMENT:
-
Challenge in this MACMA is to the award, dated 30.01.2016 in
M.V.O.P.No.282 of 2008, on the file of the Chairman, Motor Accident
Claims Tribunal-cum-V Additional District Judge, Tirupati ("Tribunal" for
short), whereunder the tribunal dealing with a claim for compensation of
Rs.14,00,000/- made by the petitioners on account of death of V.
Bhaskar (hereinafter will be referred to as "deceased") in a motor vehicle
accident, which was occurred on 03.02.2008 at 10-00 p.m., awarded a
sum of Rs.10,38,000/- towards compensation and apportioned the same
in favour of the first petitioner as Rs.5,38,000/- with proportionate interest
and entire costs and Rs.2,50,000/- each to the petitioner Nos.2 and 3
with proportionate interest. The fourth petitioner V. Varalakshmamma
died during the course of enquiry.
2) The appellant herein is the unsuccessful second
respondent/insurance company.
3) The parties to this MACMA will hereinafter be referred to as
described before the Tribunal for the sake of convenience.
4) The case of the petitioners, in brief, according to the
averments set out in the claim before the Tribunal, is that on 03.02.2008
at about 10-00 p.m., at housing board colony, Srikalahasti on a road
running from Tirupati to Srikalahasti while the deceased along with his
wife i.e., first petitioner proceeding on their motor cycle bearing
No.A.P.03-M-5895 in a slow manner on the side of the road, one lorry
came in their opposite direction. Due to which the deceased drove his
motor cycle by the side of the road. Then a tractor bearing No.A.P.01-T-
9133 along with trailer bearing No.A.P.27-V-2185 (hereinafter will be
referred to as "offending vehicle") driven by its driver at high speed and in
a rash and negligent manner, dashed the deceased on back side of his
motor cycle. As a result of which, the deceased and first petitioner fell
down on the road and received grievous injuries. The deceased was
immediately shifted to Dr. Ramana Reddy hospital where he took first aid
and during his shifting to Government Hospital, he was succumbed to
injuries. Basing on a report of the first petitioner, a case was registered in
Cr.No.16 of 2008 against the driver of the offending vehicle for the
offences punishable under Sections 304-A and 337 of the Indian Penal
Code and under Sections 3 and 4 r/w 181 of M.V. Act. The deceased
was hale and healthy and he was aged 33 years on the date of accident.
He was doing textile business under the name and style of M/s. Rudhir
Krishna Silk House and Readymade at Nehru Street, Srikalahasti since
the year 2000 which was also registered in Commercial Tax Department.
The deceased was earning Rs.10,000/- per month and contributing the
same to his family. Due to sudden death of the deceased, the petitioners
lost their income and first petitioner lost her consortium at her young age
of 29 years. The minor petitioners have lost affection of their father. The
first respondent is the owner of the offending vehicle and his driver
caused the accident due to rash and negligent driving. Therefore, both
the respondents are jointly and severally liable to pay compensation to
the petitioners. Hence, the claim.
5) The first respondent got filed a counter resisting the prayer
on the ground that the petitioners suppressed the facts and filed a false
claim. The deceased was proceeding on the motor cycle along with his
wife and their two children aged 8 years and 5 years respectively. On
03.02.2008 at 10-00 p.m., the vehicle of the first respondent had a
mechanical problem, as such, it was stationed on the left side of the road
with parking lights and by putting some stones around the wheels of the
vehicle. There was no negligence on the part of the driver of the tractor-
cum-trailer. The deceased proceeded on his motor cycle with four
persons and hit the rear side of tractor-cum-trailer due to his negligence
only. Hence, the claim is to be dismissed.
6) The second respondent got filed a counter contending in
substance that the petitioners have to prove the facts in accordance with
the pleadings made in the claim and that the first respondent had a
driving licence. The deceased had no valid driving license at the time of
accident. Hence, the claim is to be dismissed.
7) On the basis of the above pleadings, the tribunal settled the
following issues for trail:
(1) Whether the deceased Veluru Bhaskar died in the road
accident that took place due to rash and negligent driving of the
tractor bearing No.A.P.01-T-9133 and trailer bearing No.A.P.27-V-
2185 by its driver on 03.02.2008?
(2) What was the age and income of the deceased on the date of
his death?
(3) Whether the petitioners are entitled for compensation? If so, to
what amount and from whom?
(4) To what relief?
8) During the course of enquiry, on behalf of the petitioners,
P.W.1 to P.W.4 were examined and Ex.A.1 to Ex.A.7 were marked. On
behalf of the first respondent, R.W.1 to R.W.4 were examined and Ex.B.1
and Ex.B.4 were marked. On behalf of the second respondent, R.W.5
was examined and Ex.B.2 and Ex.B.3 were marked.
9) The Tribunal on hearing both sides and considering the oral
as well as documentary evidence answered the issues in favour of the
petitioners and against the contesting respondents and awarded the
compensation. Felt aggrieved of the same, the unsuccessful second
respondent filed the present MACMA.
10) Now, in deciding the present MACMA, the point for
determination is whether the award, dated 30.01.2016 in
M.V.O.P.No.282 of 2008, on the file of the Chairman, Motor Accident
Claims Tribunal-cum-V Additional District Judge, Tirupati, is sustainable
under law and facts and whether there are any grounds to interfere with
the same?
POINT:-
11) Sri Srinivasa Rao Vutla, learned counsel for the appellant
through video conference, would contend that the first respondent
examined R.W.1 to R.W.4 in support of his contention that the deceased
himself met with the accident on his own negligence by hitting the back
side of tractor-cum-trailer, though there were signal lights on when the
vehicle was parked. The tribunal with erroneous reasons disbelieved the
theory of the first respondent. The tribunal erroneously fixed the monthly
income of the deceased as Rs.6,000/- per month. What are the findings
that are made by the tribunal is against the evidence available on record,
as such, award needs interference.
12) Sri T.C. Krishnan, learned counsel for the respondent Nos.1
to 3, would contend that though R.W.1 to R.W.4 were examined in
support of the claim of the first respondent, but their evidence cannot
stands to the test of scrutiny. The tribunal with valid reasons fixed up the
responsibility against the driver of the offending vehicle. Though the
claim of the petitioners was that the deceased was earning Rs.10,000/-
per month by running business, but the tribunal considered the income
as Rs.6,000/- per month for which the petitioners would not have any
grievance. With the above contentions, he would submit that the appeal
is to be dismissed.
13) Learned counsel for the fifth respondent would contend that
the fifth respondent is only a formal party, as such, there is no arguments
would be advanced.
14) Firstly, this Court would like to deal with the evidence
available on record is sufficient to say that the accident occurred was due
to rash and negligent act of the driver of the offending vehicle.
15) P.W.1 was no other than the direct witness to the
occurrence, who was the pillion rider on the motor cycle being driven by
her husband (deceased). She put forth the facts in tune with the
pleadings. Through her examination Ex.A.1 to Ex.A.7 were marked.
Ex.A.1 was certified copy of FIR in Cr.No.16 of 2008. Ex.A.2 was
certified copy of charge sheet in C.C.No.82 of 2008 on the file of Addl.
Judicial First Class Magistrate, Srikalahasti. Ex.A.3 was certified copy of
post-mortem report. Ex.A.4 was certified copy of inquest report. Ex.A.5
was certified copy of MVI report. Ex.A.6 was certified copy of Form
No.54. Ex.A.7 was Section 161 Cr.P.C. statement of B. Ravi.
16) P.W.2 was examined by the petitioners to prove the income
of the deceased. Further there remained the evidence of P.W.3 who
spoke of the incident in tune with the evidence of P.W.1. P.W.4 was the
investigating officer, who investigated the case and filed charge sheet
and he supported the case of the petitioners.
17) On the other hand, the first respondent examined himself as
R.W.1 and he put forth the facts in tune with the counter. According to
R.W.1, it was the deceased who hit the tractor-cum-trailer in its back side
by driving the motor bike in a rash and negligent manner. He further
examined R.W.2, the so-called witness to the occurrence. Further R.W.3
was also examined, who had undertaken certain repairs to the stationed
tractor-cum-trailer. R.W.4 was no other the father of R.W.1.
18) At the outset, this Court would like to make it clear that
insofar as the rash and negligent act alleged against the driver of the
offending vehicle is concerned, an FIR was registered under Section
304-A of IPC against him and further the police after investigation filed
charge sheet alleging rash and negligent act against the driver of the
offending vehicle.
19) It is to be noted that the evidence of R.W.1 in cross
examination cannot stands to the test of scrutiny. According to him, the
tractor was stationed by the side of road and it was hit by the deceased
by coming on a motor bike. At one hand he admitted that his father was
shown as driver of the vehicle in the criminal case which was ended in
acquittal. For obvious reasons, R.W.1 was not able to clarify as to who
was the driver of the offending vehicle. Though he examined R.W.2, the
so-called witness to the occurrence, but according to his cross
examination he was not a witness to the occurrence. Similar is the
situation in respect of the evidence of R.W.3, the so-called mechanic,
who was attending the so-called repairs on the offending vehicle that he
did not witness the occurrence. Therefore, the evidence of R.W.2 and
R.W.3 is not at all useful.
20) Turning to the evidence of R.W.4, the father of the first
respondent i.e., R.W.1, though it was alleged that he was accused in the
criminal case, but the fact remained is that the criminal case was ended
with acquittal by giving benefit of doubt. It is well settled that the
judgment in criminal case is not binding on the Motor Accident Claims
Tribunal.
21) It is to be noted that if really there was an incident on the
part of the deceased hitting the tractor-cum-trailer behind its back, either
the first respondent-owner or R.W.4, the father of offending vehicle, who
was alleged to be the driver, would not have kept quiet. In a motor
accident claims case, the tribunal has to adjudicate the rash and
negligent act basing on the preponderance of the probabilities. The
tribunal rightly appreciated the evidence in this regard and rightly held
that the accident occurred was due to rash and negligent driving made by
the driver of the offending vehicle. The evidence of R.W.5, the
Administrative Officer of the second respondent-insurance company, had
nothing to do with the rash and negligent act alleged against the driver of
the offending vehicle. It is altogether different aspect that the tribunal
found favour with the contention of the insurance company that the driver
of the offending vehicle did not have a valid driving licence and directed
the second respondent to deposit the amount and authorized him to
effect pay and recovery from the first respondent.
22) Turning to the quantum of compensation, admittedly it was a
case where the petitioners pleaded that the deceased was earning
Rs.10,000/- per month by running business under the name and style of
M/s.Rudhir Krishna Silk House and Readymade. It is a case where the
petitioners did not file any proof the tribunal recorded findings that the
deceased was not at all a coolie and he was ably bodied person. Having
regard to the above, the tribunal considered the income of the deceased
as Rs.6,000/- per month thereby Rs.72,000/- per annum which is
reasonable. Considering the fact that the dependents are three in
number, the tribunal deducted 1/3rd of the income and applied the
multiplier "16" considering the age of the deceased and arrived at
multiplicand as Rs.7,68,000/-. The multiplicand of Rs.7,68,000/- is
reasonable in the circumstances. However, the fact remained is that the
tribunal awarded Rs.1,00,000/- towards loss of consortium to the first
petitioner; Rs.50,000/- towards loss of estate; Rs.20,000/- towards
funeral expenses and further awarded a lump sum amount of
Rs.1,00,000/- to the petitioner Nos.2 and 3 on the ground that they have
loss of love and affection from their father.
23) It is to be noticed that the conventional heads of
compensation under consortium to the first petitioner, funeral expenses
and loss of estate is Rs.70,000/- in view of the decision in National
Insurance Company Limited vs. Pranay Sethi and others1. Further the
Hon'ble Supreme Court in Janabai WD/O Dinakarrao Ghorpade and
others vs. ICICI Lambord Insurance Company Limited 2 held that the
minor children are entitled parental consortium of Rs.40,000/- each.
Considering the same, the conventional heads of compensation should
be Rs.40,000/- as consortium to the first petitioner and further
Rs.40,000/- each to the petitioner Nos.2 and 3 as parental consortium.
Apart from this, they are entitled to Rs.15,000/- towards funeral expenses
and Rs.15,000/- towards loss of estate. So, the conventional heads of
compensation and loss of parental consortium should be
Rs.1,50,000/- as against the awarded amount of Rs.2,70,000/-.
24) Having regard to the above, the compensation is to be
computed as follows:
2017(16) SCC 680
(2022) 10 Supreme Court Cases 512
(a) Loss of dependency : Rs.7,68,000-00
(b) Consortium to the first petitioner : Rs. 40,000-00
(c) Funeral expenses and loss of estate : Rs. 30,000-00]
(d) Parental consortium to the petitioners
2 and 3 (Rs.40,000/- x 2) : Rs. 80,000-00
So, it would amounts to Rs.9,18,000/-. Hence, the award of the
tribunal needs interference to the above extent.
25) In the result, the MACMA is allowed in part with
proportionate costs reducing the compensation from that of
Rs.10,38,000/- to Rs.9,18,000/- with interest at 7.5% per annum from the
date of petition till the date of deposit and apportioning the same as
Rs.5,00,000/- to the first petitioner and Rs.2,09,000/- each to the
petitioner Nos.2 and 3. The appellant shall deposit the rest of
compensation within a period of one month from this date. On such
deposit, the first petitioner is permitted to withdraw the entire amount with
proportionate interest and entire costs and the compensation awarded to
the minor petitioner Nos.2 and 3 shall be kept in Fixed Deposit till they
attain majority.
Consequently, miscellaneous applications pending, if any, shall
stand closed.
___________________________
JUSTICE A.V. RAVINDRA BABU
Dt.04.07.2024.
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
Date: 04.07.2024
PGR
