Telangana High Court
Shaik Mohammed And 6 Others vs M/S. Silicon Transformers Pvt. Ltd., ... on 22 December, 2023
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.3254 OF 2012
JUDGMENT:
This MACMA is filed under Section 173 of the
Motor Vehicles Act, 1988 by the appellants/petitioners
aggrieved by the order and decree dated 08.11.2010 passed in
O.P.No.39 of 2007 by the Chairman, Motor Accidents Claims
Tribunal-cum-VI Additional District Judge (Fast Track Court),
Vikarabad, Ranga Reddy District (for short, "the Tribunal").
2. For convenience, the parties will be hereinafter
referred to as they are arrayed before the Tribunal.
3. Brief facts of the case are that the petitioners filed a
claim petition claiming compensation of Rs.5,00,000/- on
account of the death of Shaik Jhony (hereinafter referred to as
"the deceased") in a motor vehicle accident.
3(1) It is stated that on 18.09.2006 at about 3.00 p.m.,
near Bandlaguda Toddy compound, Rajendra Nagar, the
deceased was driving a Seven Seater Auto bearing No.AP-13-V-
2068, along with two injured persons who were injured at
Hydershakot turning with another vehicle due to the accident.
While shifting them on humanitarian grounds to Sadan
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Hospital, when they reached near Bandlaguda Toddy
compound, the Auto Trolley bearing No.AP-29U-0889, which
was coming in the opposite direction, driven by its driver at a
high speed in a rash and negligent manner, dashed the said
seven seater auto, due to which the auto turned turtle and the
deceased sustained fatal injuries. Immediately after the
accident, the deceased was shifted to Sadan Hospital. After
administering first aid, he was referred to Osmania General
Hospital for better treatment, and while shifting, he
succumbed to injuries. The Police Narsingi registered a case
in Crime No.232 of 2006 under Sections 304-A and 337 IPC
against the driver of the crime auto trolley. Hence, the claim
petition.
4. Respondent No.1 remained ex parte before the
Tribunal. Respondent No. 2 filed a counter denying the
averments of the petition and mainly contended that the
alleged accident did not occur due to rash and negligent
driving of the driver of Auto Trolley bearing No.AP-29U-0889,
but the petitioners managed the police and got issued FIR
against the driver of said Auto Trolley and prayed to dismiss
the petition.
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5. On behalf of the petitioners, PWs.1 and 2 were
examined and got marked Exs.A1 and A2. On behalf of
respondent No.2, RW.1 was examined and got marked Ex.B1
and B2.
6. On appreciating the material available on record,
the Tribunal dismissed the petition. Aggrieved by the same,
the present appeal is filed by the appellants/petitioners.
7. Learned counsel appearing for the petitioners inter-
alia contended that the Tribunal erred in dismissing the
petition on the ground that there was no rash and negligence
on the part of the driver of the Auto Trolley bearing No.AP-
29U-0889 without giving any cogent reasons, while the fact
remains that PW.2, an eyewitness, categorically deposed that
the accident occurred due to rash and negligence on the part
of the driver of the Auto Trolley bearing No.AP-29U-0889. He
further contended that the Tribunal ought to have seen that
FIR and the Inquest report are not the conclusive proof and
the same have to be established by way of adducing oral
evidence and that in the instant case, the petitioners have
adduced the oral evidence through PW.2 who categorically
deposed about the accident. He further contended that the
Tribunal ought to have seen that PW.1 deposed that he was an
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illiterate and had no knowledge and was not an eyewitness to
the accident. The police prepared the FIR on the oral
testimony of PW.1, and as such, the Tribunal ought not to
have given much credence to the said document since as PW.1
had categorically deposed on oath denying the contents of the
FIR.
8. Learned counsel for the petitioners further contended
that the Tribunal ought to have seen that the deceased was
carrying two injured people in his seven-seater to take them to
Sadan Hospital for treatment of the injuries sustained by them
in another accident and the circumstances were such that he
was constrained to take them in his vehicle so as to save their
lives, without even bothering for his own safety and in the
process, met with ghastly accident, whereby, he had to
sacrifice his life. The Tribunal did not consider this human
aspect and dismissed the claim petition. He further contended
that the injured persons were suffering from pain and multiple
fractures, and the question of driving the vehicle in a rash and
negligent manner with high speed did not arise. The Tribunal
ought to have fastened the liability against the driver of the
Auto Trolley bearing No.AP-29U-0889 and awarded the
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compensation against respondents No.1 and 2 jointly and
severally. Accordingly, prayed to allow the appeal.
9. The learned counsel for respondent no.2 contended that
when the claimant prefers a claim under the Workmen's
Compensation Act, the extent of the liability of the insurance
company would be restricted to such extent. In support of his
contention, he relied upon a judgment of the Hon'ble Supreme
Court in National Insurance Company vs Prembai Patel 1,
which reads as follows:
"16. The High Court, in the impugned judgment,
had held that if the legal representatives of the
deceased employee approach Motor Accidents
Claims Tribunal for payment of compensation to
them by moving a petition under Section 166 of the
Act, the liability of the insurance company is not
limited to the extent provided under the
Workmen's Compensation Act and on its basis
directed the appellant insurance company to pay
the entire amount of compensation to claimants.
As shown above, the insurance policy taken by the
owner contained a clause that it was a policy for
'Act liability' only. This being the nature of the
policy, the liability of appellant would be restricted
to that arising under 'Workmen's Compensation
2005 ACJ 1323
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Act. The judgment of the High Court, therefore,
needs to be modified accordingly."
He further contended that the aspect of the deceased
contributing to his own death also has to be looked into by this
Court. In this regard, he relied upon a judgment of this Court
in United India Insurance vs A Sarada and Others 2, in which
it was held:
"9. The Tribunal, basing on the evidence available
on record, directed the respondent Nos.1 and 3, on
the other hand, to pay compensation amount
equally, i.e., 50 per cent of the compensation has
to be paid by the respondent Nos. 1 and 2 before
the Tribunal and the remaining 50 per cent has to
be paid by the respondent no. 3 before the
Tribunal. Admittedly, the finding of the Tribunal is
that the accident was caused due to the
negligence of the drivers of both the vehicles. The
jeep bearing no. CNK 7777 was insured with the
appellant. Deceased Chandrasekhara Reddy was
the owner of the jeep. When there is finding of the
Tribunal that there was contributory negligence on
the part of the driver-cum-owner of the jeep, who is
none other than the deceased, question of
payment of compensation to the legal
representatives of the deceased by the insurer of
the jeep does not arise."
2008 ACJ 1753
7 RRN,J
He further contended that the claim petition was filed under
Section 166 of the Motor Vehicles Act, and the proof of
rashness and negligence is a sine qua non for maintaining an
application under Section 166. In this regard, he referred to
the case of Surender Kumar Arora and Another vs Manoj
Bisla and Others 3, which reads as follows:
"9. Admittedly, the petition filed by the claimants
was under Section 166 of the Act and not under
Section 163-A of the Act. This is not in dispute.
Therefore, it was the entire responsibility of the
parents of the deceased to have established that
respondent no. 1 drew the vehicle in a rash and
negligent manner which resulted in the fatal
accident. Maybe, in order to help respondent No.1,
the claimants had not taken up that plea before
the Tribunal. Therefore, the High Court was
justified in sustaining the judgment and order
passed by the Tribunal. We make it clear that if for
any reason, the claimants had filed the petition
under Section 163-A of the Act, then the dicta of
this Court in the case of Kaushanuma Begum
(Smt.) & Ors would have come to the assistance of
the claimants."
10. With regard to the contention of the learned counsel for
respondent No.2 that the petitioners have made a claim under
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the Workmen's Compensation Act. It is a mere imputation,
and no material proof was adduced in support of such an
allegation. Further, PW.1, who is the father of the deceased
and petitioner No.1, when cross-examined, denied the
suggestion that he had filed a claim under the Workmen's
Compensation Act, and that he has filed the petition under the
M.V. Act for obtaining double benefit. In the absence of any
contra evidence, this Court is not inclined to consider the
contention of the learned counsel for respondent
No.2/Insurance Company that the claim under the Motor
Vehicles Act is not maintainable. This Court is also of the
considered view that in the present case, the Tribunal has
erred by not taking into consideration the categorical
deposition of PW.2, who is an eyewitness to the accident.
PW.2 had deposed that he had witnessed the accident at a
distance of about 50 feet, and denied that the deceased's auto
dashed into the auto trolley coming from the opposite
direction. The deposition of PW.2 remains unshaken. The
Tribunal in its judgment, while observing that the deposition of
PW.1 is self-serving, has surprisingly excluded the deposition
of PW.2. In this regard, it is pertinent to mention that the
Hon'ble Apex Court in the case of Sunita and Others. Vs.
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Rajasthan State Road Transport Corporation and Another 4
has elaborately dealt with the question of the standard of proof
in such cases. It has unequivocally held that the nature of
evidence in a motor accident claim case should be based on
preponderance of probability, and the same cannot be equated
to a criminal case where the strict standard of proof beyond all
reasonable doubt is necessary. It observed:
"28. Clearly, the evidence given by Bhagchand
withstood the respondents' scrutiny and the
respondents were unable to shake his evidence. In
turn, the High Court has failed to take note of the
absence of cross examination of this witness by
the respondents, leave alone the Tribunal's finding
on the same, and instead, deliberated on the
reliability of Bhagchand's (A.D.2) evidence from
the viewpoint of him not being named in the list of
eye witnesses in the criminal proceedings, without
even mentioning as to why such absence from the
list is fatal to the case of the appellants. This
approach of the High Court is mystifying,
especially in light of this Court's observation [as
set out in Parmeshwari (supra) and reiterated in
Mangla Ram (supra)] that the strict principles of
proof in a criminal case will not be applicable in a
claim for compensation under the Act and further,
that the standard to be followed in such claims is
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one of preponderance of probability rather than
one of proof beyond reasonable doubt. There is
nothing in the Act to preclude citing of a witness in
motor accident claim who has not been named in
the list of witnesses in the criminal case. What is
essential is that the opposite party should get a
fair opportunity to cross examine the concerned
witness. Once that is done, it will not be open to
them to complain about any prejudice caused to
them. If there was any doubt to be cast on the
veracity of the witness, the same should have
come out in cross examination, for which
opportunity was granted to the respondents by the
Tribunal."
11. In the present case, there is an uncontested witness in
the form of PW.2 who has narrated the occurrence and the
nature of the accident, having observed the same. The test of
standard of proof shall remain that of preponderance of the
probability, in light of the observations of the Apex Court in
Sunita (4th supra). This Court finds no reason to disregard the
testimony of PW.2, having withstood the test of such proof.
The Learned counsel for the petitioner also relied upon the
judgment of the Hon'ble Allahabad High Court in Ramo Devi
and others Vs. ICICI Lombard General Insurance Company
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Ltd., and others 5, which dealt with the question of
contributory negligence on the part of the deceased. It
observed as follows:
"21. In fact whether the deceased was also
negligent has also to be decided and that he took
turn towards right side from middle of the road
without ensuring that any vehicle is not coming
from behind because if this precaution would have
been taken by the deceased, then also the
accident could have been avoided. But it is seen
that neither the driver of the motorcycle nor the
deceased took any precaution due to which the
accident could have been avoided. Both are co-
authors of the accident. Hence, we hold that driver
of the motorcycle and the deceased were both
negligent in driving in their respective vehicles,
hence, we hold the negligence of the driver of
motorcycle and the deceased to the tune of 50%
each."
12. In the present case, it might be possible that the
deceased was, in all probabilities, driving the auto at a high
speed with the noble intent of saving two lives. However, given
the circumstances, it is clear that the deceased had lost
control of the Auto, which in turn contributed to the
2023 ACJ 294
12 RRN,J
unfortunate accident. As such, there was contributory
negligence on the part of both the drivers. This court is of the
considered view that negligence can be attributed to the
deceased @ 25% as he was a victim of his circumstances, and
he had the sole intention of saving two lives.
13. With regard to the quantum of compensation, the
petitioners pleaded in the petition that the deceased was aged
about 25 years and was driver. The respondents have not
disputed with regard to the age and occupation of the
deceased. Hence, this Court is considering the age of the
deceased as 25 years and his occupation as a driver. The
Hon'ble Supreme Court in Kala Devi vs. Bhagwan Das
Chauhan 6 the monthly income of a driver was considered
as Rs.9,000/- (Rupees Nine Thousand Only) which would
mean that the annual income is Rs.1,08,000/-(Rupees
One Lakh Eight Thousand Only). The relevant portion of
the decision stated supra is as follows:
"9. ... Therefore, the courts below have failed to take
judicial notice of the same and the fact that the post of
a driver is a skilled job. Thus, considering the facts
and circumstances of the case, we take the gross
2014 ACJ 2875.
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monthly income of the deceased at Rs. 9,000/- p.m i.e
Rs.1,08,000/- p.a."
Accordingly, this Court assessed the income of the deceased at
Rs.9,000/- per month.
14. The annual income of the deceased would come to
Rs.1,08,000/- (Rs.9,000/- x 12). To this, future prospects of
40% i.e. Rs.43,200/- is to be added as per the decision of the
Hon'ble Supreme Court in National Insurance Company Ltd.
Vs. Pranay Sethi 7 as the deceased was aged 25 years. Since
the deceased was a bachelor, a deduction of 50% of the of the
deceased's income towards personal expenses, which the
deceased might have spent for himself, is proper. The
appropriate multiplier as per the decision of Sarla Verma Vs.
Delhi Transport Corporation 8 is "18". Thus, the total loss of
dependency would come to Rs.13,60,800/- (Rs.1,08,000/- +
40% Minus 50% x 18).
15. The petitioners are entitled to compensation under
conventional heads as per the decision of the Hon'ble Apex
Court in Pranay Sethi (7th supra) and Magma Insurance
(2017) 16 SCC 680.
(2009) 6 SCC 121.
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Company Ltd. Vs. Nanu Ram @ Chuhru Ram 9.
Petitioners No.1 and 2, being the parents of the deceased, are
entitled to Rs.40,000/- each i.e. Rs.80,000/- towards loss of
filial consortium, and petitioners are also entitled to
Rs.16,500/- (Rs.15,000/- + 10%) towards funeral expenses
and Rs.16,500/- (Rs.15,000/- + 10%) towards loss of estate.
16. In all, the petitioners/appellants are entitled to
Rs.14,73,800/- (Rs.13,60,800/- + 80,000 + 16,500/- +
16,500/-) towards compensation. Since, this Court has
assessed the negligence of the deceased @ 25%, the same has
to be deducted i.e. Rs.3,68,450/- towards the negligence of the
deceased. Hence, the petitioners are entitled to
Rs.11,05,350/-. Though the claimed amount is Rs.5,00,000/-
, invoking the principle of just compensation, and in view of
the law laid down by the Hon'ble Supreme Court in Rajesh vs.
Rajbir Singh 10, and in a catena of decisions, this Court is
empowered to grant compensation beyond the claimed
amount. However, the petitioners/appellants shall pay the
deficit Court fee on the enhanced compensation.
92018 Law Suit (SC) 904
MANU/SC/0480/2013
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17. The M.A.C.M.A. is allowed by setting aside order and
decree dated 08.11.2010 passed in O.P.No.39 of 2007 by the
Tribunal. Accordingly, the petitioners are awarded
compensation of Rs.11,05,350/-. (Rupees Eleven lakh, five
thousand, three hundred and fifty only) with interest @7.5
% p.a. from the date of petition till the date of realisation.
Respondents are directed to deposit the said amount with
costs and interest within two months from the date of receipt
of a copy of this judgment. On such deposit, the petitioners
are permitted to withdraw the same in the following manner:
Petitioner No.1 :: Rs.2,76,337/-
Petitioner No.2 :: Rs.4,14,506/-
Petitioners No. 3 to 7 :: Rs.82,901/- each
The petitioners are directed to pay the deficit Court fee
within two months from the date of receipt of a copy of this
judgment. There shall be no order as to costs.
Miscellaneous petitions, if any pending, shall stand
closed.
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
22nd day of December, 2023
BDR
