Telangana High Court

Smt.Diviti Veeramma 2 Ors vs The Ap State Road Transport ... on 28 December, 2021

Bench: G Sri Devi

              HONOURABLE JUSTICE G. SRI DEVI

                    M.A.C.M.A. No.2806 of 2006

JUDGMENT:

Challenging the order and decree dated 29.04.2005 passed in

O.P.No.895 of 1999 on the file of the Motor Accident Claims

Tribunal-cum-III-Additional District and Sessions Judge,

Mahabubnagar at Gadwal (for short "the Tribunal"), the claimants

filed the present appeal.

The facts, in issue, are as under:

The appellants/claimants, who are the wife and children of

one Hanumanna (hereinafter referred to as "the deceased"), filed a

petition under Section 166 of the Motor Vehicles Act claiming

compensation of Rs.2,75,000/- for the death of the deceased in a

motor accident that occurred on 06.11.1998. It is stated that on that

day while the deceased, along with some others, boarded the lorry

at Hyderabad to go to Jadcherla and on the way the driver of the

lorry stopped the lorry at Rajapur in front of Volga Hotel and the

deceased got down from the lorry to pass urine and while he was

crossing N.H.No.7 at about 18.10 hours, one RTC bus bearing

No.AP-10-Z-831 of Picket Depot came from Jadcherla side with high

speed in a rash and negligent manner and dashed against the

deceased, as a result of which, the deceased fell down on the road,

sustained multiple injuries and died on the spot. It is stated that

prior to the accident, the deceased, who was aged about 40 years,

was hale and healthy and was earning Rs.25,000/- per annum by

doing agriculture. On account of death of the deceased, the 1st

appellant lost her husband and the appellants 2 and 3 lost their

father. Since the respondent being the owner of the crime bus is

liable to pay compensation.

Before the Tribunal, the respondent filed counter denying the

petition averments and contended that the accident did not take

place due to the negligent driving of the driver of the RTC bus, but

occurred due to gross negligence of the deceased only and,

therefore, the appellants are not entitled for any compensation. It is

also contended that the amount claimed is excessive, arbitrary and

out of all proportions and prayed to dismiss the petition.

Basing on the above pleadings, the Tribunal has framed the

following issues:-

1. Whether the accident occurred on 06.11.1998 at about 18.10 hours on N.H.7, KM Stone No.69/6, Rajapur village limits, due to rash and negligent of RTC bus bearing No.AP 10/Z/831 by it's driver, and whether it resulted in the death of Hanumanna?

2. Whether the petitioners are entitled for compensation? If so, to what amount?

3. To what relief?

On behalf of the claimants, P.Ws.1 and 2 were examined and

got marked Exs.A1 to A6. On behalf of the respondent, R.W.1 was

examined and got marked Ex.B1-xerox copy of judgment in

C.C.No.217 of 1999.

After considering the oral and documentary evidence on

record, the Tribunal came to the conclusion that the claimants failed

to prove that the death of the deceased was caused due to the rash

and negligent driving of the RTC bus bearing No. AP 10 Z 831.

Challenging the same, the present appeal is filed.

Heard the learned Counsel for the appellants/claimants and

learned Counsel for the respondent and perused the record.

The point that arises for consideration in this appeal is

whether the claimants have proved the involvement of the RTC bus

bearing No.AP 10 Z 831 in the accident and, if so, what is the just

and reasonable compensation to which the claimants are entitled to?

A perusal of the material on record would show that basing

on the complaint lodged by one Veeranna, who was examined as

P.W.2 before the Tribunal, a case in Crime No.127 of 1998 of

Balanagar Police Station, Mahaboobnagar has been registered

against R.W.1 for the offence punishable under Section 304-A of

I.P.C. The contents of the F.I.R., which was marked as Ex.A1,

would show that an unknown Semi Luxury APSRTC Bus has

dashed against the deceased and as a result of which the deceased

died on the spot. The contents of charge sheet, which was marked

as Ex.A4, would show that on 08.11.1999, the Sub Inspector of Police,

Balanagar Police Station, has examined and recorded the statement

of one Vadla Venkataiah, who was traveling in the bus and an eye

witness to the accident, under Section 161 Cr.P.C. and collected the

bus ticket from him and identified the crime vehicle bearing No. AP

10 Z 831. No objection was raised by the respondent at the time of

marking the said F.I.R. and charge sheet. P.W.2/complainant has

deposed before the Tribunal narrating the manner in which the

accident occurred and as to how the deceased died. It is no doubt

true that P.W.2, who was examined as P.W.1 in the Criminal Case,

did not support his own version and hence the learned Magistrate

acquitted the driver of the Bus/accused in the absence of any other

evidence to connect him with the accident. Further, the evidence of

the aforesaid person, who was shown as an eyewitness to the

accident, was given up by the prosecution before the criminal Court.

Hence, there is no dispute with regard to the involvement of the said

offending vehicle in the accident. The police investigated the matter

and found that the said RTC bus was responsible for the accident

and filed charge sheet to that effect.

While dealing with the similar issue, in G. Jayalaxmi v. Syed

Anwar Hussain Quadri1 a Division Bench of this Court held as

under:-

"As noted above, the fact that the accused was acquitted in a criminal case is not by itself sufficient to absolve the insurance company of their liability. It is thus, held that the evidence recorded in a criminal Court and the findings arrived at therein should not be

LAWS (APH) 2012 8 89

used in claim petitions more so when the contents of the evidence of the witnesses in criminal case were not put to him when he was examined as an eye witness before the Tribunal in claim-petition."

In Bimla Devi v. Himachal Road Transport Corporation2 the

Apex Court observed as under:-

"(15). .... 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."

In view of the above discussion, I hold that the claimants, by

examining P.Ws.1 and 2 and marking Exs.A1 and A4, proved that

the RTC bus was involved in the accident.

With regard to the quantum of compensation, learned

Counsel for the appellants would submit that though the appellants

produced the evidence to show that the deceased was earning

Rs.25,000/- per annum by doing agriculture, the Tribunal

erroneously fixed the income of the deceased at Rs.1500/- per

month, which is very low. He further submitted that the appellants

are also entitled to addition of 25% on the income of the deceased

2009 ACJ 1725

towards future prospects as per the ratio laid down by the Hon'ble

Supreme Court in National Insurance Co. Ltd. Vs. Pranay Sethi3.

The Motor Vehicles Act is beneficial and welfare legislation.

The Court is duty-bound and entitled to award "just compensation",

irrespective of whether any plea in that behalf was raised by the

claimants. So far as income of the deceased is concerned, the

Tribunal has taken the monthly income of the deceased as Rs.1,500/-

although the claimants had claimed an amount of Rs.25,000/- per

annum. Since no documentary evidence has been placed on record

to substantiate the claim of Rs.25,000/- per annum, the Tribunal has

not accepted the same.

So far as the future prospects are concerned, this point has

already been considered by the Apex Court in Pranay Sethi (Supra),

and it has been held that the benefit of future prospects cannot be

denied to a self-employed person. The Apex Court has further held

that where the deceased was below the age of 40 years, an addition

of 40% of the established income; where the deceased was between

40 to 50 years, an addition of 25% of the established income; and

where the deceased was between 50 to 60 years, an addition of 10%,

should be granted towards future prospects.

After considering the evidence available on record, the

Tribunal held that the deceased was aged about 40 years at the time

2017(6) ALD 170 (SC)

of the accident. In view of the judgment of the Apex Court in Sarla

Verma v. Delhi Transport Corporation4 the suitable multiplier

would be '15'. If the income of the deceased at Rs.1,500/- per month

as fixed by the Tribunal is taken and if 25% of the income is added to

the actual income of the deceased towards future prospects, the total

income of the deceased would be Rs.1,875/- per month. After

deducting 1/3rd amount towards his personal and living expenses,

the contribution of the deceased would be Rs.1250/- per month and

Rs.15,000/- per annum. By applying multiplier '15', the total loss of

dependency would be Rs.15,000/- x 15 = Rs.2,25,000/-. As per the

judgment of the Apex Court in Pranay Sethi (supra), the appellants

are entitled only Rs.70,000/- under the conventional heads. Thus, in

total, the appellants are entitled to Rs.2,95,000/- (Rs.2,25,000/-

towards loss of dependency and Rs.70,000/- under conventional

heads).

In Laxman @ Laxman Mourya Vs. Divisional Manager,

Oriental Insurance Company Limited and another5, the Apex Court

while referring to Nagappa Vs. Gurudayal Singh6 held as under:

"It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is

2009 ACJ 1298 (SC)

(2011) 10 SCC 756

2003 ACJ 12 (SC)

entitled to award higher compensation to the victim of an accident."

In view of the Judgments of the Apex Court referred to above,

the claimants are entitled to get more amount than what has been

claimed. Further the Motor Vehicles Act being a beneficial piece of

legislation, where the interest of the claimants is a paramount

consideration, the Courts should always endeavour to extend the

benefit to the claimants to a just and reasonable extent.

In the result, the appeal is allowed and the appellants/

claimants are entitled to compensation of Rs.2,95,000/- with interest

@ 7.5% per annum from the date of petition till the date of

realisation. The respondent is directed to deposit the said amount

within three months from the date of receipt of a copy of this order.

Out of the said amount, the claimant No.1 is entitled to Rs.1,95,000/-