Telangana High Court

Sara Balamma R.R.Distand 3 vs B/Subash, Sec.Badand Anr on 22 December, 2023

      *THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO


               + M.A.C.M.A. No. 2596 OF 2011
% 22-12-2023

# Sara Balamma & others

                                       ....Appellants/petitioners

Vs.

$ B. Subash & and another
                                 .... Respondents/Respondents

! Counsel for the petitioner       : Sri Kota Subba Rao


 Counsel for the Respondent No.2: V. Sambasiva Rao


<Gist :

>Head Note:

? Cases referred:

1.    Civil Appeal No.7143 of 2022 dt.11.10.2022
2.    MACMA No.1490 of 2009 dt.23.06.2023
3.    2001(1) ALT 495 DB
4.    MANU/SC/0480/2013
                             2                                 RRN,J
                                                       MACMA No.2596 of 2011




       IN THE HIGH COURT FOR THE STATE OF TELANGANA
                        HYDERABAD
                           ****

               + M.A.C.M.A. No. 2596 OF 2011

Between:

# Sara Balamma & others

                                      ....Appellants/petitioners

Vs.

$ B. Subash & and another
                                 .... Respondents/Respondents

JUDGMENT PRONOUNCED ON: 22.12.2023



     THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO


1.     Whether Reporters of Local newspapers
       may be allowed to see the Judgments?           : Yes


2.     Whether the copies of judgment may be
       Marked to Law Reporters/Journals?              : Yes


3.     Whether His Lordship wishes to
       see the fair copy of the Judgment?             : Yes




                                  __________________________________
                                  NAMAVARAPU RAJESHWAR RAO, J
                           3                                 RRN,J
                                                     MACMA No.2596 of 2011




THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                   M.A.C.M.A.No.2596 OF 2011

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 29.06.2001 passed in O.P.No.176

of 1996 by the Chairman, Motor Accidents Claims Tribunal-

cum-Principal District Judge, Ranga Reddy District (for short,

"the Tribunal").

2. For convenience, the parties hereinafter will be 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.1,50,000/- on

account of the death of Sara Ramchander (hereinafter referred

to as "the deceased") in a motor vehicle accident.

3(1) It is stated that on 21.11.1995 around 3.30 p.m.,

near Antharam village, Peddamul Tandur road, a lorry bearing

No.AP-28-T-5643, in which the deceased was travelling with

green gram bags, fell down from the lorry due to applying

sudden brakes by the driver. Unexpected action of the driver,

the deceased sustained multiple injuries and died in Osmania 4 RRN,J

General Hospital, Hyderabad, due to those injuries. The Police

Tandur registered a case in Crime No.138 of 1995 under

Section 304-A against the driver of the crime lorry. 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 contended that the petitioners have to prove that

the accident and the death of the deceased, occurred due to

the rash and negligent driving of the driver of the said crime

lorry bearing No.AP-28T-5643. They further contended that

the petitioners have to prove that the driver of the crime lorry

was holding a valid driving license as on the date of accident.

Accordingly, prayed to dismiss the claim petition.

5. On behalf of the petitioners, PW.1 was examined and got

marked Exs.A1 and A4. No evidence was adduced on behalf of

respondent No.2.

6. On appreciating the material available on record, the

Tribunal awarded Rs.50,000/- to the petitioners under 'no

fault liability' under Section 140(2) of the Motor Vehicles Act,

1988. Aggrieved by the same, the present appeal is filed by the

appellants/petitioners.

5 RRN,J

7. A perusal of the record goes to show that the Tribunal

observed that the petitioners pleaded that when the driver

applied brakes of the lorry suddenly, the deceased fell down

from the lorry and sustained multiple injuries and later died.

In the earliest report covered by Ex.A1 also, inter alia, it is

categorically mentioned that the deceased, who was sitting on

the lorry, aged about 60 years, fell down from it and sustained

injuries because sudden brakes were applied. The first

petitioner/PW.1, who is the widow-wife of the deceased

travelled with the deceased in that lorry, and she deposed that

the deceased fell down from the lorry when the driver applied

sudden brakes. So, the Tribunal concluded that there is no

fault of the driver of the lorry because the application of

sudden brakes as and when required is an imperative and

integral part of safe driving. So, no driver can, ipso facto, be

blamed for the application of the sudden brakes. The

deceased, who sat on the lorry irresponsibly, fell down and

sustained injuries and later died. If he were to sit in the cabin

or in the body of the lorry, then he would not have fallen down

even if sudden brakes were applied. Therefore, it cannot be

said that the accident was due to any fault of the driver.

6 RRN,J

8. Learned counsel appearing for the petitioners inter-alia

contended that the Tribunal failed to see that the accident

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

the lorry. He further contended that the Tribunal failed to

decide the compensation and in fact, the petitioners are

entitled for the entire amount as claimed, and the Tribunal

failed to consider the FIR. Apart from that, he relied upon the

decision of the Hon'ble Apex Court in Ram Murti and others

Vs. Punjab State Electricity Board 1 wherein it was held as

under:

"7. The provisions of Section 140 which formed a part of Chapter 10 of the Motor Vehicles Act 1988 were omitted by Act 32 of 2019. Simultaneously, Chapter 11 was substituted of which Section 164 provides for payment of compensation in the case of death in the amount of Rs.5 lakhs and in the case of grievous hurt of Rs.2.5 lakhs.

8. We are inclined to give the Appellants the benefit of the beneficial provisions which have been enacted by Parliament. Hence, in modification of the order of the High Court, we direct that the Appellants shall be entitled to an amount of Rs.5 lakhs as compensation. However, if the amount of Rs.50,000/- which has been

Civil Appeal No.7143 of 2022 dt.11.10.2022 7 RRN,J

awarded by the High Court has already been paid over, the balance (or the entirety of Rs.5 lakhs if no amount has been paid) shall be paid over to the Appellants by 30 November 2022."

9. On the other hand, learned counsel for respondent No.2

submitted that the Tribunal has rightly decided the

compensation under 'no fault liability' and no interference is

required by this Court. However, he relied upon the judgment

of this Court in The New India Assurance Company

Limited, Kurnool Vs. Smt. K. Kathalamma and others 2

wherein it was held that in case of gratuitous passengers, the

Insurance Company is not liable to pay the compensation and

it is the owner alone who is liable to pay the compensation.

10. In the case on hand, nowhere it is the contention of the

respondent No.2 that the deceased was a gratuitous

passenger. They mainly contended that the petitioners have to

prove that the accident and the death of the deceased,

occurred due to the rash and negligent driving of the said

accident lorry bearing No.AP-28T-5643. They further

contended that the petitioners have to prove that the driver of

the said lorry was holding a valid driving license as on the date

MACMA No.1490 of 2009 dt.23.06.2023 8 RRN,J

of the accident. At this belated stage, the contention of the

learned counsel for the respondent No.2 that the deceased was

a gratuitous passenger cannot be accepted. Further, even

considering such an argument, there are catena of decisions

by the Hon'ble Apex Court wherein it was held that even a

gratuitous passenger is entitled for compensation and placed

the liability of the same on the Insurance Company.

11. This Court is of the considered view that in the light of

the enactment of Motor Vehicles (Amendment) Act, 2019,

wherein the provision of Section 140 of the Act was amended

and substituted by Section 164, and also in view of the

observation of the Hon'ble Apex Court in Ram Murti's case

(supra-1), the compensation in cases of 'no fault liability' is to

be fixed at Rs.5,00,000/- in cases of death, and Rs.2,50,000/-

in cases of disability occurring due to such accident.

Accordingly, the petitioners are entitled to a sum of

Rs.5,00,000/- (Rs. Five lakhs only) under the head of 'no fault

liability'. As regards the interest, the Tribunal granted interest

@12% p.a., but this Court is granting interest @ 7.5% p.a. on

the enhanced amount from the date of petition till the date of

realisation.

9 RRN,J

12. As seen from the cause title, the case against respondent

No.1 was dismissed for default on 24.06.2011. However, the

dismissal against respondent No.1/owner is of no consequence

for the determination of a just, fair and reasonable quantum of

compensation against the Insurance Company in view of the

judgment of this Court in Meka Chakra Rao Vs. Yelubandi

Babu Rao @ Reddemma. 3

13. Though the claimed amount is Rs.1,50,000/-, 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 4, 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.

14. Accordingly, the M.A.C.M.A. is allowed by enhancing the

awarded amount by the Tribunal from Rs.50,000/- to

Rs.5,00,000/-. (Rupees Five lakhs only) with interest @

7.5% p.a. on the enhanced amount 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

2001(1) ALT 495 DB

MANU/SC/0480/2013 10 RRN,J

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 (wife) :: Rs.3,50,000/-

     Petitioner No.2 (son)      :: Rs. 50,000/-

     Petitioner No.3 (son)      :: Rs. 50,000/-

Petitioner No.4 (daughter) :: Rs. 50,000/-

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.