Telangana High Court
B Jayyamma vs Y Nageswara Rao on 2 April, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No.
2897 of 2018
J U D G M E N T:
Dissatisfied and aggrieved with the dismissal Order
dated 13.07.2018 (impugned Order) passed in Motor
Vehicle Original Petition No.589 of 2014 by the learned
Chairman, Motor Vehicle Accident Claims Tribunal
(District Judge) at Khammam, (for short "the Tribunal"),
the appellants-claim petitioners preferred the present
Appeal praying this Court to set aside the impugned Order.
02. For the sake of convenience, hereinafter, the
parties will be referred to as per their array before the
learned Tribunal.
03. Brief facts of the case are that claim petitioner
Nos.1 to 3 filed a petition under Section 166 of the Motor
Vehicle Act, who are wife and children of Sri B. Mutyalu
(hereinafter referred to as 'the deceased'), claiming
compensation of Rs.25,00,000/- with interest on account
of death of the deceased in a Motor Vehicle Accident that
occurred on 21.01.2014.
04. According to claim petitioners, on 21.01.2014 at
about 08:30 AM., while the deceased was chatting with
M.Chatari near the house of Seetharamulu at
Seetharampuram Village, respondent No.1 proceeding on
his Hero Splendor Motorcycle bearing No. AP 20 AP 2640
in rash and negligent manner with high speed, hit the
deceased, as a result, the deceased fell down sustained
head injury and he was shifted to Singareni Collieries
Company Hospital, Yellandu and later shifted to Kamineni
Hospital, Hyderabad and died on 05.02.2014 while
undergoing treatment. The Police, Karepally registered a
case in Crime No.20 of 2014 for the offence under Section
337 of the Indian Penal Code (for short 'IPC') and later on
the Section of Law was altered to Section 304-A of IPC
against respondent No.1.
05. It is further contended by claim petitioners that
the deceased was aged about 54 years at the time of
accident and he was an Employee of Singareni Collieries
Company Limited, Yellandu and earning Rs.27,000/- per
month and used to contribute for the welfare of the family
and that claim petitioners lost their sole breadwinner and
his love and affection and they claimed compensation of Rs
25,00,000/- along with interest and that respondent No.1
being owner-cum-driver and respondent No.2 being insurer
are liable to pay compensation to claim petitioners.
06. Respondent No.1 filed counter denying the
claim petition averments and further denied the accident,
involvement of his vehicle, age, income and profession of
the deceased, injuries sustained by the deceased and
treatment undergone by the deceased. It is further
contended that the accident was caused on account of
gross negligence of the deceased who himself was in an
inebriated condition. It is also further contended that if
any liability is fixed on respondent No.1, it is respondent
No.2 who has to pay the compensation. The claim of claim
petitioners is excessive and exorbitant and prayed to
dismiss the claim of claim petitioners against it.
07. Respondent No.2 filed counter and additional
counter denying the averments of claim petition and
further denied age, income, manner of accident,
involvement of the deceased in the accident, rash and
negligence on the part of the driver of the motorcycle. It is
contended that the deceased himself was responsible for
occurrence of the accident who was chit-chatting on the
road and crossing the road suddenly without observing the
traffic. There is no rash and negligence on the part of the
driver of motorcycle and accident occurred only due to
negligence of the deceased. The driver of the motorcycle
was not holding any license at the time of accident. The
claim of claim petitioners is excessive and exorbitant and
prayed to dismiss the claim of claim petitioners against it.
08. Before the Tribunal, claim petitioners got
examined petitioner No.1 as PW1, eyewitness to the
accident as PW2 and also examined PW3 and got marked
Exs.A1 to A9. On behalf of respondents, RW1 to RW4 were
examined and got marked Exs.B1 to B11.
09. Based on the pleadings, the Tribunal framed
the following issues:
i. Whether the accident has occurred due to
the rash and negligent riding of Hero Splendor
Motorcycle bearing No. AP 20 AP 2640 by its rider ?
ii. Whether petitioners are entitled for claim
of compensation? If so, to what quantum and from
which of respondents?
iii. To what relief?
10. Considering the claim of claim petitioners and
counter affidavits filed by respondent Nos.1 and 2 and on
evaluation of oral and documentary evidence, the learned
Tribunal dismissed the Motor Vehicle Original Petition.
11. Challenging the same, claim petitioners have
filed this Motor Accident Civil Miscellaneous Appeal.
12. Heard Sri Karri Murali Krishna, learned counsel
appearing on behalf of appellants-claim petitioners and Sri
A. Ramakrishna Reddy, learned Standing Counsel
appearing on behalf of Insurance Company-respondent
No.2. Perused the material available on record.
13. The main contention of learned counsel for
appellants-claim petitioners is that though claim
petitioners have proved the case by adducing cogent and
convincing evidence and also relying on relevant
documents, the learned Tribunal without considering the
same properly, dismissed claim application of claim
petitioners. Hence, he prayed to allow this Motor Accident
Civil Miscellaneous Appeal by setting the impugned Order
passed by the learned Tribunal.
14. On the other hand, learned Standing Counsel
for respondent No.2-Insurance company has contended
that the learned Tribunal has rightly dismissed claim
application after taking into consideration entire evidence
and the same needs no interference by this Court.
15. Now the point for consideration is:
Whether the impugned Order dated 13.07.2018
passed by the learned Tribunal, is liable to be set
aside?
P O I N T:
16. This Court has perused the entire evidence and
documents available on record.
17. Petitioner No.1 who is wife of the deceased was
examined as PW1 reiterated the contents of claim
application and as she is not eyewitness to the said
accident, she got examined PW2 who is eyewitness to the
accident who deposed that the deceased is his senior
paternal uncle on 21.01.2014 at 08:30 AM., the deceased
was chatting with M.Chatari at the house of Anthoti
Seetharamulu and that respondent No.1 proceeding on his
Hero Splendor Motorcycle bearing No. AP 20 AP 2640 in
rash and negligent manner with high speed, hit the
deceased, as a result, the deceased fell down sustained
head injury and the deceased died while undergoing
treatment on 05.02.2014 at 05:40 PM.,. PW2 also lodged
complaint with Police.
18. PW3 is the person with whom the deceased was
chit-chatting prior to accident. PW3 deposed in the similar
lines of PW2 and further deposed that he is also an
eyewitness to the accident and deposed about manner of
accident in line with PW2. He further stated that only to
avoid legal liability respondent No.1 managed to endorse in
medical records as if the deceased fell down from
motorcycle.
19. On behalf of respondents, RW1-Executive of
Insurance company deposed that the motorcycle bearing
No. AP 20 AP 2640 was insured with their company and
the same was in force as on the date of accident. Basing
on Ex.B3-Medico Legal record of Singareni Collieries
Company Hospital and Ex.B4-Discharge summary issued
by Kamineni Hospital, Hyderabad, he stated that the
accident was on account of self-fall of the deceased from
motorcycle but not due to hit by motorcycle bearing No. AP
20 AP 2640. During the course of cross-examination, RW1
admitted that the crime vehicle number is mentioned in
FIR, Chargesheet, Inquest and MVI Report.
20. RW2-Medical Superintendent, Singareni Area
Hospital deposed that on 21.01.2024 at 10:15 AM., the
deceased was admitted in their hospital and that as per
information the injury to the deceased was caused due to
self-fall from two wheeler and Ex.B10-case sheet wherein
Ex.B11 is the relevant portion in Ex.B10. During the
course of cross-examination, he stated that there was
punctured wound on the occipato-parietal region and he
gave first-aid and referred the deceased to higher hospital.
21. RW3-Resident Medical Officer, Kamineni
Hospital, LB Nagar he deposed that as per hospital records
the accident occurred due to skidding while travelling on
two wheeler under Ex.B4. During the course of cross-
examination, he admitted that at the time of admission the
patient condition was altered sensoriem that he was not
fully conscious and he may not rightly speak.
22. Petitioners apart from oral evidence, got marked
Exs.A1 to A9. A perusal of Ex.A1-FIR discloses that based
on a complaint the Police, Karepally registered a case in
Crime No.20 of 2014 for the offence under Section 337 of
the Indian Penal Code (for short 'IPC') and later on the
Section of Law was altered to Section 304-A of IPC against
respondent No.1 under Ex.A2-Alteration memo and took
up investigation. During the course of investigation,
inquest and postmortem examination were conducted and
Ex.A3-Inquest report shows that the panchas have opined
that the deceased was hit by crime vehicle, due which he
sustained severe head injury, Ex.A4-Postmortem
Examination Report shows that the cause of death is due
to head injury, Ex.A5-Motor Vehicle Inspector Report
shows that there were no mechanical defects for the crime
vehicle. After completion of investigation, Ex.A6-Charge
sheet was filed against respondent No.1 for the offence
under Section 304-A of IPC.
23. It is pertinent to state that the learned Tribunal
has dismissed the claim of claim petitioners on the ground
that the crime vehicle i.e., Hero Splendor Motorcycle
bearing No. AP 20 AP 2640 was not involved in the
accident and the deceased died due to self-fall from his
own motorcycle.
24. As seen from the entire evidence, there is no
corroboration between the evidence of RW2 and RW3
wherein RW2 deposed that he was informed that the
deceased died due to self-fall but RW3 deposed that he was
informed that the deceased fallen down due to skidding of
motorcycle. Admittedly, the deceased sustained grievous
head injury. It is relevant to mention here that RW3
admitted that at the time of admission the patient's
condition was altered sensoriem which means the deceased
was not fully conscious. Therefore, the information given
by the deceased to the Doctors will hold not much
significance. Moreover, as stated supra, there is no
corroboration of evidence between both Doctors i.e., RW2
and RW3. Furthermore, it is pertinent to state that the
Doctors are not correct persons to depose about manner of
accident. Admittedly, both Doctors came to know the
reason for cause of head injury to the deceased as 'Road
Traffic Accident', which is not in dispute. Therefore, this
Court after evaluating above oral evidence of eyewitness
coupled with the documentary evidence available on
record, it is clearly established that there is involvement of
crime vehicle i.e., Hero Splendor Motorcycle bearing No. AP
20 AP 2640 in the accident, as the Police after thorough
investigation laid charge sheet against respondent No.1
which reveals that there is rash and negligence on the part
of the crime vehicle i.e., Hero Splendor Motorcycle bearing
No.AP 20 AP 2640. Thus, this Court is of the considered
opinion that claim petitioners have proved their case that
the accident occurred due to rash and negligence of driver
of Hero Splendor Motorcycle bearing No.AP 20 AP 2640 and
they are entitled for compensation. Therefore, the learned
Tribunal has erred in dismissing claim application without
considering the said aspect, and the impugned dismissal
Order dated 13.07.2018 passed by the learned Tribunal, is
set aside.
25. Now coming to the compensation as per claim
petitioners, the deceased was an Employee of Singareni
Collieries Company Limited, Yellandu and earning
Rs.27,000/- per month. Claim petitioners have filed
Exs.A7 to A9-Pay Slips of the deceased for the
months of September and December, 2013 and
January, 2014 which shows that the deceased was
earning Rs.27,129/-, Rs.26,100/- and Rs.22,887/-
respectively. A copy of Salary certificate dated
08.03.2014 was appended to charge sheet, which
shows that as on 05.02.2014 the total earnings of
the deceased per day was Rs.1,595.33. Keeping in
view the fact that the deceased was an Employee of
Singareni Collieries Company Limited, Yellandu, the
average of his income shown in pay slips can be taken as
his monthly income, which comes to Rs.25,372/-
(Rs.27,129/- + Rs.26,100/- + Rs.22,887/- =
Rs.76,116/- divided by 3). The annual income of
the deceased which comes to Rs.3,04,464/-
(Rs.25,372x12). In view of the decision of the
Honourable Apex Court in National Insurance Company
Limited Vs. Pranay Sethi and others 1 as the deceased
was aged about 54 years at the time of accident, 10% i.e.,
Rs.30,446.4 ps. towards future prospects can duly be
added thereto. Thus, the annual income of the deceased
comes to Rs.3,34,910.4/- (Rs.3,04,464/- + Rs.30,446.4/-
being 10% towards future prospects). Since the deceased
was having three dependants, after deducting 1/3rd of the
annual income (Rs.1,11,636.8/-) towards personal
expenses of the deceased as per the decision of the
Honourable Apex Court in Smt. Sarla Varma v. Delhi
Transport Corporation and another 2, the net annual
contribution to the family comes to Rs.2,23,273.6 ps which
is rounded to Rs.2,23,274/-.
26. As seen from the evidence, the deceased was 54
years at the time of fatal accident. Therefore, as per the
decision of the Honourable Apex Court in Smt. Sarla
1 2017 ACJ 2700
2 2009 (6) SCC 121
Varma (supra), the appropriate multiplier is '11'. Thus,
applying the multiplier '11' to the annual loss of
dependency, which is already arrived at Rs.2,23,274/-, the
total loss of dependency comes to Rs.24,56,014/-
(Rs.2,23,274/- x 11). In addition to that, claim petitioners
are entitled to Rs.77,000/- under the conventional heads
(Rs.30,000/- + 10% enhancement thereon). In addition
thereof, claim petitioner No.3 who is minor child of the
deceased at the time of accident, is entitled for Rs.40,000/-
under the head of '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, claim petitioners are entitled to
compensation of Rs.25,73,014/-.
27. Accordingly, this Motor Accident Civil
Miscellaneous Appeal is allowed setting aside the
impugned dismissal Order dated 13.07.2018 passed in
Motor Vehicle Original Petition No.589 of 2014 by the
learned Chairman, Motor Vehicle Accident Claims Tribunal
(District Judge) at Khammam. Appellants-Claim
(2018) 18 SCC 130
petitioners are awarded an amount of Rs.25,73,014/-
(Rupees Twenty Five Lakhs Seventy Three Thousand
Fourteen only) towards compensation. The compensation
amount shall carry interest at the rate of 7.5% per annum
from the date of petition till the date of realization to be
payable by respondent Nos.1 to 2 jointly and severally.
Respondent Nos.1 and 2 are directed to deposit the
compensation amount to the credit of Motor Vehicle
Original Petition along with accrued interest within a
period of two months from the date of receipt of copy of this
Judgment. On such deposit, appellants-claim petitioners
are permitted to withdraw the entire amount, subject to
payment of deficit Court fee. There shall be no order as to
costs.
As a sequel, the miscellaneous petitions, if any,
pending shall stand closed.
________________________________
JUSTICE M.G.PRIYADARSINI
Date: 02-APR-2024
KHRM
