S Nagalaxmi, Warangal Dist Anr vs Banoth Mallu, Warangal Dist Anr
2022 Latest Caselaw 6408 Tel

         HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                    M.A.C.M.A. No.2006 of 2016

JUDGMENT:

Being dissatisfied with the order and decree passed by the

Chairman, Motor Vehicle Accident Claims Tribunal-cum-II Additional

District Judge, Warangal, in M.V.O.P.No.369 of 2014 dated

27.04.2016, the claimants have filed the present appeal.

2. For the sake of convenience, the parties have been referred to as

arrayed before the Tribunal.

3. According to the petitioners, on 27.02.2014 in the night the

deceased Sandu Ravi left his house to go to Sri Veerabhadra Swamy

Temple, Kuravi in auto bearing No. AP 20 Y 8859 and that on

28.02.2014 at 1-00 hour when the auto reached the outskirts of

Purshothamayagudem village, another auto bearing No. AP 36 TB

1713 being driven by its driver came in rash and negligent manner at

high speed and dashed the auto in which the deceased was travelling.

As a result, the deceased sustained fatal injuries and died on the spot

and another person viz., G.Uday Kumar sustained injuries. According

to the petitioners, the deceased was aged 22 years, and earning

Rs.6,000/- per month by doing agriculture. Thus, the petitioners are

claiming compensation of Rs.6,00,000/- under various heads.

4. Respondent No.1 remained ex parte; Respondent No.2 filed

counter disputing the manner in which the accident occurred, age,

avocation and income of the deceased. It is further contended that the

claim is excessive.

5. In view of the above pleadings, the Tribunal raised the following

issues:

1) Whether the accident occurred on 28.02.2014 at about 01-11 hour at the outskirts of Purushothamayagudem village, Maripeda Mandal, Warangal District due to rash and negligent driving of driver of auto trolley bearing registration No. AP 36 TB 1713?

      2)    Whether the petitioners are entitled for
           compensation as claimed for, to what amount and
           from whom?

      3) To what relief?

6. In order to prove the issues, on behalf of the petitioners, PWs.1

and 2 were examined and got marked Exs.A-1 to A-6. On behalf of

respondent No.2, no witnesses were examined and no documents were

marked.

7. After full trial, the Tribunal has dismissed the petition on the

ground that the eyewitness was not examined.

8. Heard the learned counsel for the appellants-claimants and the

learned Standing Counsel for the respondent No.2-Insurance Company.

Perused the material available on record.

9. The learned counsel for the appellants-claimants has submitted

that although the claimants established the fact that the death of the

deceased-Sandu Ravi was caused in a motor accident, the Tribunal

dismissed the petition.

10. The learned Standing Counsel appearing on behalf of respondent

No.2-Insurance Company sought to sustain the impugned award of the

Tribunal contending that the Tribunal after appreciating the evidence

on record, has dismissed the petition, as the claimants failed to examine

any eyewitness before the trial Court and the same needs no

interference by this Court.

11. With regard to the manner of accident, PW-1 who is mother of

the deceased reiterated the petition averments. However, she is not an

eyewitness to the accident. Therefore, in support of their case,

petitioners have examined the Investigation officer in the criminal case

as PW-2. PW-2 clearly stated in his evidence that the accident

occurred due to rash and negligent driving by the driver of crime auto

by name Banothu Mallu and that there was no negligence on the part of

the driver of auto in which the deceased was travelling. PW-2 further

stated that he examined eyewitness and after thorough investigation

filed charge sheet against the auto driver/respondent No.1. The

Tribunal held that the evidence of Investigating Officer is not relevant

to prove rash and negligent driving by the driver of offending vehicle.

12. Here, it is pertinent to state that the Apex Court in Anita Sharma

and others vs. The New India Assurance Company Limited and

another in Civil Appeal Nos. 4010-4011 of 2020, held as follows:

"The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true."

13. The Apex Court in "Sunita and others vs. Rajasthan State Road Transport

Corporation and another" held as follows:

"Similarly, the issue of non-examination of the pillion rider, Rajulal Khateek, would not be fatal to the case of the appellants. The approach in examining the evidence in accident claim cases is not to find fault with non examination of some "best" eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. This court, in Dulcina Fernandes (supra), faced a similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and the respondent was acquitted in the criminal case concerning the accident. This Court, however, took the view that the material on record was prima facie sufficient to establish that the respondent was negligent. In the present case, therefore, the Tribunal was right in accepting the claim of the appellants even without the deposition of the pillion rider, Rajulal Khateek, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident."

14. As per the principles laid down in the above decisions, even

without examination of the eyewitness, the other evidence on record

was good enough to prima facie establish the manner in which the

accident had occurred. Thus, the trial Court erred in holding that the

rash and negligent driving by the driver of offending vehicle is not

proved. Therefore, in view of the above discussion, it is clearly

established through the evidence of PW-2 coupled with the

documentary evidence available on record that the accident occurred

due to the rash and negligent driving of the driver of auto trolley which

resulted the death of the deceased Sandu Ravi.

15. With regard to the quantum of compensation, according to the

petitioners, the deceased was doing agriculture and earning Rs.6,000/-

per month. However, since the petitioners did not produce any oral or

documentary evidence to prove the income of the deceased and the

accident occurred in the year 2014, the income of the deceased can be

taken at Rs.4,500/- per month. Further, in light of the principles laid

down by the Apex Court in National Insurance Company Limited Vs.

Pranay Sethi and others1, the claimants are entitled to future prospects

@ 40% of his income, since the deceased was aged 23 years. Then it

comes to Rs.6,300/- (4,500 + 1,800 = 6,300/-). From this, half of the

actual income is to be deducted towards personal expenses of the

deceased following Sarla Verma v. Delhi Transport Corporation2 as

the deceased was a bachelor. After deducting half of the amount

towards his personal and living expenses, the contribution of the

deceased to the family would be Rs.3,150/- per month. Since the

deceased was 23 years by the time of the accident, the appropriate

multiplier is '18' as per the decision reported in Sarla Verma v. Delhi

Transport Corporation (supra). Adopting multiplier '18', the total loss

of dependency would be Rs.3150/- x 12 x 18 = Rs.6,80,400/-. In

2017 ACJ 2700

2009 ACJ 1298 (SC)

addition thereto, the claimants are also entitled to Rs.33,000/- under the

conventional heads as per Pranay Sethi's (supra). Further the

petitioner Nos.1 and 2 are also entitled to filial consortium at

Rs.40,000/- each as per the Magma General Insurance Company

Limited vs. Nanu Ram Alias Chuhru Ram3. Thus, in all the

claimants are entitled to Rs.7,93,400/-.

16. With regard to the liability, as stated above, the accident

occurred due to the rash and negligent driving of the driver of the auto

trolley. Though the copy of insurance policy is not filed by either of

the parties, no rebuttal evidence was produced by the respondent No.2-

Insurance Company and as such, respondent Nos.1 and 2 are jointly

and severally liable to pay compensation.

17. In the result, the M.A.C.M.A. is allowed by granting

compensation amount of Rs.7,93,400/- to the petitioners with costs and

interest at 7.5% p.a. from the date of petition till the date of realization,

to be payable by the respondent Nos.1 and 2 jointly and severally. The

amount shall be deposited within a period of one month from the date

of receipt of a copy of this order. The claimants shall pay deficit Court

2018 Law Suit (SC) 904

fee on the enhanced compensation, since the initial claim was for

Rs.6,00,000/-. On such payment of court fee only, the claimants are

entitled to withdraw the amount. Both the claimants are entitled in

equal shares. There shall be no order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

_______________________ M.G.PRIYADARSINI,J

05.12.2022 pgp