Degam Sreenivas vs Sri Mokappa Ano
2021 Latest Caselaw 352 Tel

              * HON'BLE SRI JUSTICE B.N. RAO NALLA
                    + M.A.C.M.A. No.744 & 852 OF 2012
% Date 25.04.2013
M.A.C.M.A. No.744
B e t w e e n:
# Andhra Pradesh State Road Transport Corporation,
rep. by its Managing Director,
Mushirabad,
Hyderabad.

                                                             Appellant

       And

$
Gaguloth Keema and four others

                                                            Respondents

! Counsel for the Appellant : Sri K. Srinivasa Rao

^ Counsel for Respondent No.4 : Sri D.V.Chalapathi Rao ^ Counsel for Respondent No.5: : Sri T.Mahender Rao

M.A.C.M.A. No.852 OF 2012 B e t w e e n:

# HDFC ERGO General Insurance Co. Ltd., rep. by its Branch Manager, 6th floor, Leela Business Park, Andheri, Kurla Road, Andheri (East), Mumbai-400 059

Appellant And

$ Gaguloth Keema and four others

Respondents

! Counsel for the Appellant : Sri T.Mahender Rao

^ Counsel for Respondent Nos.1,2& 3 : Smt. S.A.V. Ratnam ^ Counsel for Respondent No.4 : Sri D.V.Chalapathi Rao ^ Counsel for Respondent No.5: : Sri K. Srinivasa Rao < GIST :

> HEAD NOTE :

? Cases referred :

[1] 2013 (1) ALD 644 (FB) 2 2009 ACJ 1298

HON'BLE SRI JUSTICE B.N. RAO NALLA

M.A.C.M.A. Nos.744 & 852 OF 2012

COMMON JUDGMENT:

This Court, while admitting these appeals, granted interim stay of all

further proceedings in pursuance of the order and decree dated 04.01.2012 in M.V.O.P. No.943 of 2010 on the file of the Chairman, Motor Vehicles

Accidents Claims Tribunal -cum- VII Additional District Judge (Fast Track

Court), Warangal in MACMAMP No.1700 of 2012 in MACMA No.744 of

2012 and MACMAMP No.2116 of 2012 in MACMA No.852 of 2012 respectively. To vacate the interim stay granted by this Court in MACMAMP

No. 2116 of 2012, the claimants filed MACMAMP No.4002 of 2012 and when the same is coming up for hearing, at the request of both sides, the

appeals themselves are taken up for disposal.

2. These two appeals arise out of order, as referred above, dated 04-01- 2012 in M.V.O.P. No.943 of 2010

3. MACMA No.744 of 2012 is filed by the Andhra Pradesh State Road

Transport Corporation (APSRTC), which is respondent No.3 in the M.V.O.P., contending inter alia that the APSRTC is not liable to pay the

compensation and that the owner and the insurer of the hired bus are liable to pay the compensation to the claimants in view of the full bench decision

of this Court in APSRTC, Hyderabad and another v.

[1] B.Kanakaratnabai .

4. MACMA No.852 of 2012 is filed by HDFC ERGO General Insurance Company Limited, which is respondent No.2 in the M.V.O.P., contending inter alia that since the bus was taken over by APSRTC on hire from its owner, the APSRTC has become the dejure owner or deemed owner of the

bus, and as such, the APSRTC is liable to pay the compensation to the

claimants; that the Tribunal erred in not deducting 1/3rd of the income of the

deceased towards her personal expenses and that as per the decision of [2] the Apex Court in Sarla Varma v. Delhi Transport Corporation , the appropriate multiplier for a person dying in the accident at the age of 55

years is '11' .

5. For the sake of convenience, the parties hereinafter referred to as they arrayed in the M.V.O.P.

6. The deceased - Shanthamma was working as labourer apart from

doing the work of rolling Beedies and was earning Rs.5,000/- per month. On 19.01.2010, the deceased boarded APSRTC bus (hired) bearing No. AP

36X 1643 and when the bus was stopped at Korra Thanda stage, she was getting down from it, meanwhile, the driver of the bus without watching the

same, started the bus in rash and negligent manner, resultantly, the deceased was dragged up to some distance and she fell down on the road

and sustained injuries. The deceased was shifted to Area hospital, Jangaon, and thereafter she was shifted to NIMS, Hyderabad, where she succumbed to the injuries. P.S. Jangaon registered a case in Crime No.14

of 2010 and filed charge sheet after investigation. Respondent No.1 is the owner of the hired bus, respondent No.2 is the insurer of the hired bus and

respondent No.3 is the APSRTC and they are jointly and severally liable to pay compensation of Rs.5,00,000/-.

7. Respondent No.1- owner of the hired bus was set ex parte.

8. Respondent No.2 - insurance company filed counter denying the age, avocation, monthly income of the deceased, injuries sustained by her, manner of accident, rash and negligent manner of driving of APSRTC bus by its driver, expenditure incurred for treatment earlier to her death and

entitlement of the petitioners to claim compensation. It is stated that the petitioners have to prove that the insurance policy was in force and that the driver was having valid driving licence at the time of accident. It is stated that the accident occurred due to the fault of the deceased. It is stated that the petitioners did not produce documents showing the medical

expenditure. Lastly, it is stated that the compensation claimed by the petitioners is exorbitant.

9. Respondent No.3 - APSRTC filed counter denying the allegations

made in the claim petition. It is stated that APSRTC hired the bus of respondent No.1 under an agreement which was valid from 04.08.2007 to 03.08.2011. As per clause 5 (iv) of the agreement, if any claim arises due to accident under the provisions of Motor Vehicles Act, the APSRTC is not

liable to pay compensation and the owner of the hired bus is liable to pay the same. It is also stated that the driver of the hired bus was appointed by respondent No.1, and as such, he is not an employee of the APSRTC.

10. Basing on the pleadings, the relevant issues were framed as to the

rash and negligent driving of APSRTC bus (hired) bearing No.AP 36 X 1643 by its driver and as to the entitlement of the petitioners to claim compensation and the liability of the respondents to pay the same.

11. During the course of trial, on behalf of the petitioners, petitioner No.1 was examined as PW.1 besides examining eye witness to the accident as PW. 2 and Exs.A.1 to A.8 were marked. On behalf of respondent No.3 - APSRTC, Superintendent, Jangaon depot, was examined as RW.1 and

Ex.B.2 - original hire agreement was marked. On behalf of respondent No.2

- insurance company, Assistant legal manager was examined as RW.2 and Exs.B.1 - copy of insurance policy and B.3- terms and conditions of the policy were marked.

12. The Tribunal after taking into consideration the evidence and other material brought on record, partly allowed the M.V.O.P. holding that the accident occurred due to rash and negligent driving of APSRTC hired bus by its driver, wherein the deceased died of injuries; that the petitioners are

entitled to a total compensation of Rs.4,72,000/- and that respondent Nos.1 to 3 are jointly and severally liable to pay the compensation.

13. Heard the learned counsel for respondent No.3 - APSRTC, the

learned counsel for respondent No.2 - insurance company and the learned counsel for the petitioners - claimants and perused the material available on record.

14. So far as the liability of the APSRTC is concerned, this Court in B.Kanakaratnabai's case (supra 1), held that mere hiring of insured buses by the owners to the APSRTC would not in any manner limit the liability and accountability of the insurance companies, be it under the Act of 1988 or the Act of 1939, to honour passengers/third party risks covered by the insurance

policies issued by them in favour of the owners. Notwithstanding the hiring of insured buses by the owners to the APSRTC, the insurance companies shall be solely and exclusively liable for payment of the compensation arising out of such passengers/third party claims.

15. In view of the above decision, it is clear that the APSRTC is not liable to pay the compensation and that respondent No.1, who is the owner of the hired bus and respondent No.2 - insurer, are jointly and severally liable to pay the compensation.

16. So far as the entitlement of the quantum of compensation by the petitioners is concerned, though the petitioners contended that the

deceased was aged 39 at the time of accident, the police complaint, FIR, inquest report and post mortem report indicate that the age of the deceased was 55 years at the time of accident. Further, since there is no conclusive proof with regard to earning capacity of the deceased, the Tribunal considered the deceased as housewife rendering service to the family and fixed her annual income at Rs.36,000/- and applied multiplier "12" based on the age of the deceased. However, it is seen that the Tribunal without

deducting 1/3rd income of the deceased towards her personal expenses, calculated the compensation. Therefore, this Court is hereby inclined to

deduct 1/3rd of the income of the deceased towards her personal expenses

from Rs.36,000/- and, as such, the loss of service (dependency) to the family would come to Rs.24,000/- per annum. Further, as per the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation (supra

2), the appropriate multiplier is "11" for a person aged 55 years and that as

per the said decision, the petitioners are entitled to interest at 6% per annum from the date of the petition till the date of realization, but not 7.5% per annum as granted by the Tribunal.

17. Therefore, the petitioners are entitled to Rs.2,64,000/- (24,000/- x 11) towards loss of service (dependency) to the family, apart from Rs.20,000/- towards medical expenses, Rs.10,000/- towards funeral expenses and Rs.10,000/- towards loss of love and affection. Thus, in total, the petitioners are entitled to a total compensation of 3,04,000/-

(Rupees three lakhs four thousand) only, with interest at 6% per annum from the date of the petition till realization and the same is jointly and severally payable by respondent No.1 - owner of the hired bus and respondent No.2- insurer of the hired bus.

18. Accordingly, M.A.C.M.A. No.744 of 2012 filed by the APSRTC is allowed, and M.A.C.M.A. No. 852 of 2012 filed by the Insurance Company is partly allowed. There shall be no order as to costs.

___________________ B.N. RAO NALLA, J Date: 25.04.2013

Note:

L.R. copy to be marked.

B/o Stp

[1] 2013 (1) ALD 644 (FB) [2] 2009 ACJ 1298