Kommarajula Sunitha And 4 Others vs A. Kumara Swamy And Another
2023 Latest Caselaw 3978 Tel

THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                   M.A.C.M.A.No.3987 OF 2012

JUDGMENT:

This M.A.C.M.A. is filed under Section 173 of the

Motor Vehicles Act, 1988 by the appellants/petitioners

aggrieved by the award and decree dated 17.12.2007 passed in

O.P.No.890 of 2005 by the Chairman, Motor Accidents Claims

Tribunal-cum-I Additional District Judge, Warangal (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 as follows:

On 17.09.2004 at about 12.00 noon one Mr.

Mahesh (hereinafter referred to as 'the deceased') was riding a

motorbike bearing No.AAO 2797 along with his friend Mr.

Lingaiah as a pillion rider, and when they were near Vishwa

Bharathi School within Parvathagiri Village limits proceeding

on the extreme left side of the road, one Jeep bearing No.AP-

20-U-3749, driven by its driver in a rash and negligent

manner, while overtaking a bullock cart without observing the

motorbike of the deceased, dashed against the motorbike. As

a result, the deceased and his friend fell and received severe

injuries. Immediately, they were shifted to M.G.M. Hospital

and the deceased died on the same day. Therefore, the

petitioners filed the O.P. seeking compensation of

Rs.7,52,000/-.

4. Before the Tribunal, the 1st respondent filed a counter

stating as follows :-

"The first respondent filed a counter admitting that he is the owner of the Jeep and the accident although with the explanation that the accident was result of the contribution by the deceased. He would bring out that the said vehicle is insured with the second respondent against such risk and as such, it is the second respondent, who is liable to compensate the petitioners, if any."

5. The 2nd respondent filed a counter denying the

averments made in the claim petition, including the manner in

which the accident occurred, the age, avocation and income of

the deceased. It is further contended that the compensation

claimed is excessive and prayed to dismiss the claim petition.

6. PW.1 was examined and marked Exs.A1 to A6 to

prove the petitioners' case. No oral evidence was adduced, but

marked Exs.B1 to B5 on behalf of the respondents.

7. After hearing both sides and considering the oral

and documentary evidence available on record, the Tribunal

dismissed the O.P. Challenging the same, the petitioners have

filed the present appeal.

8. Heard both sides and perused the record.

9. Learned counsel appearing for the petitioners

contended that the Tribunal has misconceived the very intent

of the legislature, and lost track of the fact that it is a social

welfare legislation and dismissed the claim petition. The

Tribunal has not properly appreciated the evidence available

on record and erred in dismissing the O.P. The Tribunal failed

to appreciate that the maxim "Res ipsa loquitor" is applicable

in the instant case and that the facts admitted need not be

proved, as the insured, the owner of the offending vehicle

himself, admitted that there was an accident and the post-

mortem report says that the death of the deceased is the result

of a road accident. The Tribunal ought to have awarded just

compensation, and therefore, the order passed by the Tribunal

may be set aside by granting just compensation.

10. Learned counsel for the petitioners mainly

contended that the Tribunal erroneously dismissed the O.P. In

support of his case, learned counsel for the petitioners relied

upon the judgment of this Court in SAROJANA AND OTHERS

Vs. VENKATESHWARLU AND OTHERS 1, wherein this Court

held as follows:

"According to the settled principle of law laid down by the Apex Court in National Insurance Company Ltd. Vs. Sinitha & others, 2012 (2) ALD 112 (SC) = AIR 2012 SC 797, the initial burden is on the respondents to prove that the accident did not occur due to negligent act of the driver of the Auto, but to prove the said contention, the 3 rd respondent did not examine the driver of the auto, who is the competent person to speak about the manner in which the accident occurred or any direct witness to prove the manner of accident and to attribute negligence to the driver of the jeep or the circumstances which led to the accident. Therefore, the 3rd respondent miserably failed to discharge its initial burden to prove that the accident has not occurred due to rash and negligent act of the driver of the Auto. When once

2022 (6) ALD 504 (TS)

the 3 rd respondent failed to discharge its initial burden, the claimants need not establish the occurrence of accident due to rash and negligent act of the driver of the auto. Admittedly, the auto and jeep were involved in the accident and the deceased was traveling in the auto at the time of accident. To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who were more responsible for the accident and who of the two had the last opportunity to avoid the accident. As per the evidence of P.W.2, who is said to be eyewitness to the occurrence of accident, deposed that the accident occurred while the auto driver tried to overtake a jeep, it was turned turtle. Had, the driver of the auto taken minimum care and caution in driving the auto and he did not try to overtake the jeep, the accident would not have occurred."

11. Learned counsel for the petitioners further relied

upon Rule 476(7) of the Andhra Pradesh Motor Vehicles Rules,

1989, which reads as follows :-

"(7) Basis to award the claim :- The Claims Tribunal shall proceed to award the claim on the basis of;-

(i) Registration Certificate of the Motor Vehicle involved in the accident;

(ii) Insurance Certificate or Policy relating to the insurance of the Motor Vehicle against the Third party risk;

(iii) Copy of First Information Report;

(iv) Post-mortem certificate or certificate of inquiry from the Medical Officer; and

(v) The nature of the treatment given by the Medical Officer who has examined the victim."

12. Learned counsel appearing for the petitioners also

relied upon the judgment of the Hon'ble Apex Court in

NATIONAL INSURANCE COMPANY LIMITED Vs. RATTANI

AND OTHERS 2, wherein the Hon'ble Apex Court held as

follows :-

"13. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.

2009 ACJ 925

As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose.

14. An admission made in the pleadings, as is well-known, is admissible in evidence proprio vigore. We, thus, are of the opinion that the Tribunal as also the High Court committed a serious error in opining that the insurance company was liable."

13. Per contra, learned counsel appearing for the 2nd

respondent submits that the Tribunal, after considering the

oral and documentary evidence, had rightly dismissed the O.P.

Therefore, there are no reasons to interfere with the order

passed by the Tribunal.

14. In the instant case, PW.1 is not a direct witness to

the occurrence. A perusal of Exs.A1 to A5 would go to show

that the complaint was lodged on 18.09.2004 though the

accident had occurred on 17.09.2004 at about 12.00 noon. It

would disclose that after the accident the deceased and the

pillion rider Mr.Lingaiah were shifted to M.G.M. Hospital and

on enquiry, the said Lingaiah disclosed the vehicle number of

the 1st respondent and the manner in which the accident took

place.

15. The Tribunal assessed the compensation at

Rs.3,85,340/- with costs and interest @ 7.5% per annum and

dismissed the O.P. by observing as follows :-

"15. Assuming that such an admission can be taken as evidence in cases of this nature, then also what is stated by the first respondent in his counter, is that the deceased himself contributed to the accident. He is not clear as to the nature of the contribution, but then when the first respondent makes a qualified statement in his counter, it becomes the duty of the petitioners to bring out that the accident was due to the negligent driving by the driver of the deceased, particularly when the petitioners claim the income of the deceased as Rs. 5000/- which works out to Rs. 60,000/- p.a., and as such it is the provisions of Section 166 M.V. Act and not 163-A M.V. Act which shall apply to the facts of the case.

16. I am not able to understand as to why Mr. Lingiah is not examined at the trial though he is an eye-witness to the incident and an injured in the incident and it is he who gave out the vehicle number of the first respondent and the manner in which the accident took place. As far as the FIR is concerned, it is totally hearsay and there is

no other document bringing out the involvement of the vehicle of the first respondent and the manner in which the accident took place. It appears to me, in the absence of the evidence of the said Mr. Lingaiah, and the first respondent or his driver, that the first respondent is admitting about the accident, although with a qualification, to help the petitioners for reasons known to him alone.

Under the above circumstances, I am of the considered view that basing on the material on record, it cannot be said that the accident involved the vehicle of the first respondent driven by its driver negligently."

.... The petitioners are entitled to a total compensation of Rs.3,85,340/- with costs and interest on the awarded sum @ 7.5% per annum from the date of petition till realization from 1st and 2nd respondents jointly and severally in case it is ultimately held that the petitioners are entitled to compensation.

...... I answer second and third issues holding that the petitioners would not be entitled to any compensation from any of the respondents and the petition is therefore liable to be dismissed although without costs."

16. In the present case, the eyewitness to the accident

was not examined by the petitioners. The burden lies on the

petitioners to prove the negligence, but it is not done in the

present case. In those circumstances, the Tribunal held that

the petitioners had not proved the negligence of the driver of

the offending vehicle and assessed the compensation at

Rs.3,85,340/- and accordingly dismissed the O.P. The

accident occurred on 17.09.2004, and the complaint was

lodged on 18.09.2004, and there is a mere delay of 24 hours.

There are catena of decisions that delay in filing the FIR is not

a valid ground to deny the compensation. Merely because

there is a delay of one day in lodging a complaint and merely

because the eye witness was not examined, it cannot be said

that the vehicle in question was not involved in the accident,

more particularly when Exs.A1 to A3 disclosed the involvement

of crime vehicle in the accident. Moreover, no contra evidence

is adduced by the Insurance Company to establish that the

vehicle was not involved in the accident. Apart from that, the

delay is not fatal if the proper explanation is offered for such

delay. In view of the above judgments of the Hon'ble Apex

Court with regard to the delay in registration of FIR and the

statement of the 1st respondent in his counter indicating the

involvement of the vehicle in question, this Court is of the

opinion that the accident occurred due to the rash and

negligent driving of the driver of the offending vehicle.

17. With regard to the quantum of compensation, the

petitioners stated that the deceased was earning Rs.5,000/-

per month as a plumber and he was aged about 28 years. To

prove the same, the petitioners have filed Ex.A5-Certificate

issued by Krishna Enterprises. The Tribunal fixed the monthly

income of the deceased at Rs.3,000/- per month, which is very

meager. As the petitioners have filed Ex.A-5, this Court is

inclined to fix the monthly income of the deceased at

Rs.5,000/-. Apart from the same, the petitioners are entitled

to an addition of 40% towards future prospects, as per the

decision of the Hon'ble Supreme Court in Pranay Sethi

(supra). Therefore, the monthly income of the deceased comes

to Rs.7,000/- (Rs.5,000/- + Rs.2,000/-). The Tribunal

deducted 1/3rd towards personal expenses of the deceased. As

the dependants are four in number, 1/4th has to be deduced

towards personal expenses of the deceased instead of 1/3rd.

After deducting 1/4th towards the personal and living

expenses, the monthly contribution of the deceased to the

family comes to Rs.5,250/- (Rs.7,000/- - 1,750/-). As the

deceased's age was 28 years at the time of the accident, the

appropriate multiplier applicable is '17'. Adopting multiplier

17, the total loss of earnings comes to Rs.5,250/- x 12 x 17 =

Rs.10,71,000/-. The Tribunal awarded an amount of

Rs.3,000/- towards funeral expenses, Rs.5,000/- towards loss

of consortium and Rs.2,500/- towards loss of estate, which are

very meagre. The petitioners are further entitled to Rs.77,000/-

(Rs.40,000/- + 15,000 + Rs.15,000/- + 10%) towards loss of

spousal consortium, loss of estate and funeral expenses as per

Pranay Sethi (supra). Further, considering the fact that

petitioner Nos.4 and 5 are the parents of the deceased, this

Court is inclined to award a sum of Rs.40,000/- each under

the head of the filial consortium and the petitioner Nos.2 and 3

being minors, this Court is inclined to award a sum of

Rs.40,000/- each under the head of the parental consortium

as per the decision of the Apex Court in Magma General

Insurance Company Limited v. Nanu Ram @ Chuhru Ram

and others 3. Thus, in all, the petitioners are entitled to a sum

of Rs.13,08,000/-.

18. Though the claimed amount is Rs.7,52,000/-,

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

(2018) 18 SCC 130

MANU/SC/0480/2013

empowered to grant compensation beyond the claimed

amount.

19. As seen from the cause title, the case against

respondent No.1 was dismissed for default on 04.01.2012.

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. 5

Therefore, the 2nd respondent-Insurance Company is liable to

pay compensation to the petitioners.

20. Accordingly, the M.A.C.M.A is allowed by setting

aside the order dated 17.12.2007 passed in M.V.O.P.No.890 of

2005 by the Tribunal. The petitioners are entitled to the

compensation of Rs.13,08,000/- (Rupees thirteen lakh eight

thousand only) with interest @ 7.5% p.a. from the date of

petition till the date of realization. The respondents are

directed to deposit the said amount with costs and interest,

after giving due credit to the amount already deposited, if any,

within a period of two months from the date of receipt of a

2001(1) ALT 495 DB

copy of this judgment. On such deposit, the 1st petitioner is

entitled for a sum of Rs.6,00,000/-, petitioner Nos.2 and 3 are

entitled to a sum of Rs.2,00,000/- each and petitioner Nos.4

and 5 are entitled to a sum of Rs.1,54,000/- each and they

are permitted to withdraw their respective share amounts.

However, the petitioners are directed to deposit the deficit

court fee. No order as to costs.

Miscellaneous petitions, if any are pending, shall stand

closed.

_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 15.11.2023 Prv