Telangana High Court

M. Padmaja , Padma vs Mr. K.Shanker Yadav on 6 February, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

      THE HONOURABLE DR.JUSTICE G. RADHA RANI

                      M.A.C.M.A.No.2115 of 2009

JUDGMENT:

This appeal is filed by the claimants, who are the wife, sons and mother

of the deceased late M.Prabhakar aggrieved by the order and decree dated

02.09.2008 passed in O.P.No.799 of 2007 by the Motor Accident Claims

Tribunal (for short "The Tribunal") - cum - III Additional Chief Judge, City

Civil Court, Hyderabad.

2. The claimants filed a claim petition under Section 166 of the Motor

Vehicles Act, 1988 claiming compensation of Rs.25,00,000/- for the death of

the deceased M.Prabhakar in a motor vehicle accident. As per the claimants,

the deceased was aged 45 years, working as Manager (MMGS-3) in Deccan

Grameena Bank, Hyderabad and was drawing a salary of Rs.30,000/- per month

by the date of the accident. On 07.05.2006, the deceased along with his wife,

sister and aunt went to Suryapet to attend a marriage in their Maruthi Car

bearing No.AP-9-AR-5262. The deceased himself was driving the car and

while they were returning to Hyderabad and when reached near kilometer stone

No.92/6 on N.H.No.9, the deceased tried to overtake another vehicle which was

proceeding in front of their car. In the meanwhile, a lorry bearing No.AP-7-W-

2149 driven by its driver with high speed and in a rash and negligent manner

Dr.GRR, J macma_2115_2009

came from its behind and hit the Maruthi Car. Due to the sudden hit by the

lorry, the Maruthi Car went towards its right side and hit a palmyrah tree. Due

to the said impact, the deceased M.Prabhakar sustained fatal injuries and died

on the spot. All other inmates also sustained grievous injuries. While the

injured were being shifted to Kamineni Hospital, Narketpally, the sister of the

deceased by name Pushpamma succumbed to injuries on the way to the hospital.

The wife and aunt of the deceased sustained multiple fractures. The Maruthi

Car was completely damaged. Police, Narketpally, Nalgonda District registered

a case in Crime No.77 of 2006 under Sections 304-A and 337 of IPC.

3. The petitioners claimed compensation from respondents 1 and 2, the

owner and insurer of the lorry bearing No.AP-7-W-2149.

4. The respondent No.1 remained ex-parte.

5. The respondent No.2 filed counter and called for strict proof of the

petition averments. The respondent No.2 contended that the alleged accident

was due to the rash and negligent driving of the car by the deceased and

reserved their right to file an additional counter as and when the petitioners

furnished documents in respect of negligent driving, cause of accident and death

of M.Prabhakar and on receipt of the policy and driving license status of the

lorry driver.

Dr.GRR, J macma_2115_2009

6. The Tribunal framed the issues as follows:

i. Whether the death of M.Prabhakar on 07.05.2006 was due to rash and negligent driving of lorry bearing No.AP-7-W-2149?

ii. Whether the petitioners were entitled for compensation? If so, against whom?

iii. To what relief?

7. The claimant No.1, the wife of the deceased who also travelled along

with the deceased at the time of the accident was examined as PW.1, another

eye-witness to the accident was examined as PW.2, the Area Manager of

Deccan Grameena Bank was examined as PW.3 to speak about the employment

of the deceased and the emoluments drawn by him. Exs.A1 to A16 were

marked on behalf of the claimants. The respondent No.2 got examined the

Assistant Manager of their Insurance Company as RW.1 and got marked

Exs.B1 to B5 on their behalf.

8. On considering the oral and documentary evidence on record, the

Tribunal dismissed the O.P. observing that the involvement of the lorry was not

established by the petitioners. The evidence of PWs.1 and 2 was not believable.

There was discrepancy in the evidence of PWs.1 and 2 regarding the manner of

accident. The own damage (for short "OD") claim forms marked as Exs.B1 to

B4 were not helpful to the case of the petitioners.

Dr.GRR, J macma_2115_2009

9. Aggrieved by the said dismissal of the claim petition, the claimants

preferred this appeal contending that the Tribunal committed an error in

dismissing the O.P. The Tribunal ought to have appreciated that FIR was

prepared when the occupants of the car were unconscious. As such, the FIR

could not be interpreted against the claimants. The Tribunal ought to have

appreciated that the complainant who lodged the FIR was neither travelling in

the car nor he was present when the car met with the accident. The Tribunal

ought to have appreciated that the complainant was not examined before the

trial court. As such, the FIR could not be given preference over the charge-

sheet. The Tribunal ought to have taken Ex.B2 into consideration for granting

relief to the claimants. The Tribunal ought to have appreciated that even

according to Ex.A5 (MVI report), the lorry was mentioned as the offending

vehicle. The Tribunal ought to have appreciated that PW.2 was mentioned as

LW.5 in the charge-sheet and as such his evidence could not be disbelieved and

prayed to allow the appeal.

10. Heard Sri V.Rama Krishna Rao, the learned counsel for the appellants -

claimants and Sri P.Bhanu Prakash, the learned counsel for the respondent No.2

- Insurance Company.

11. The learned counsel for the appellants vehemently argued on the same

lines as raised in the grounds of appeal and also relied upon several judgments

Dr.GRR, J macma_2115_2009

on each and every aspect, which would be referred to as and when the points

were discussed.

12. The learned counsel for the respondent No.2 - Insurance Company

contended that the Tribunal on considering all the aspects passed a reasoned

order which required no interference by this Court and prayed to dismiss the

appeal.

13. Now, the Points that arise for determination in this appeal are:

i. Whether the lorry bearing No.AP-7-W-2149 was involved in the accident and whether the accident was due to the rash and negligent driving of the lorry by its driver?

ii. Whether the appellants were entitled for compensation? If so, what was the quantum of compensation entitled by the appellants and from whom?

iii. Whether the judgment of the Tribunal is sustainable or requires any interference?

iv. To what result?

P O I N T No.1:

Whether the lorry bearing No.AP-7-W-2149 was involved in the accident and whether the accident was due to the rash and negligent driving of the lorry by its driver?

14. The contention of the claimants was that the deceased died due to the rash

and negligent driving of the driver of the lorry bearing No.AP-7-W-2149. The

Dr.GRR, J macma_2115_2009

respondent No.2 called for strict proof of the petition averments and contended

that the cause of accident was due to the rash and negligent driving of the car by

the deceased. Though, the respondent No.2 reserved their right to file an

additional counter, no additional counter was filed by the respondent No.2.

15. The wife of the deceased who travelled along with the deceased at the

time of the accident was examined as PW.1. She filed her evidence affidavit

stating that at the material time of the accident, she along with her husband

M.Prabhakar and his aunt Somalaxmamma and his sister Pushpamma were

coming to Hyderabad after attending a marriage at Suryapet in their Maruthi

Car bearing No.AP-9-AR-5262. Her husband was driving the Maruthi Car

slowly on the extreme left side of the road. They were proceeding from

Suryapet towards Hyderabad and when the said car reached near kilometer

stone No.92/6 on N.H.No.9, at that time, her husband tried to overtake another

vehicle which was proceeding in front of their car. In the meanwhile, a lorry

bearing No.AP-7-W-2149 driven by its driver with high speed in a rash and

negligent manner came from their behind and dashed to the Maruthi Car. Due

to the sudden hit from behind by the lorry, their Maruthi Car went ahead

towards right side of the road and hit a toddy tree. Due to which, her husband

M.Prabhakar sustained fatal injuries and died on the spot and all other inmates

including her, Somalaxmamma and Pushpamma sustained grievous injuries and

Dr.GRR, J macma_2115_2009

while shifting to Kamineni Hospital, Narketpally, Smt.Pushpamma succumbed

to injuries on the way to hospital.

16. In her cross-examination, she admitted that there was no mention in

Ex.A1, the certified copy of the FIR about hitting of lorry from behind. She and

the other injured Somalaxmamma were not present at the time of inquest and at

the time of conducting scene of offence panchanama. The road was 100 feet

wide and it was straight. She stated that she did not know who informed the

complainant about the accident and manner of accident. Mr.Koteshwar Rao, the

husband of her husband's sister lodged the complaint. She denied the other

suggestions given by the learned counsel for the respondent No.2.

17. In her further cross-examination about Exs.B1 to B4, the claim forms

pertaining to Own Damage claim and personal accident claim for the damages

to their car by the same Insurance Company, she admitted that the Own Damage

claim was for Rs.1,19,000/- and personal accident claim was for Rs.2,00,000/-

and Ex.B1 was brought by her husband's colleagues and obtained her signatures.

She did not know the contents of Exs.B2 and B3. Her husband's colleagues at

Karimnagar pursued the matter. She admitted her signature on Ex.B4, but

stated that she signed on blank papers brought by her husband's colleagues.

Dr.GRR, J macma_2115_2009

18. An eye-witness to the accident was examined as PW.2. PW.2 stated that

he was doing food grains business at Narketpally and he witnessed the accident

as he was going on his scooter bearing No.AP-24-C-2032 along with his worker

Mr.Nayeemuddin behind the car of the deceased. He stated that at the material

time of the accident, the deceased was driving the Maruthi Car and was driving

the car slowly on the extreme left side of the road. The deceased was just ahead

of his scooter. He was going on his scooter from Nakrekal to his village

Narketpally and when reached the village limits of A.P.Lingotum on N.H.No.9

near kilometer stone No.92/6, the driver of the lorry bearing No.AP-7-W-2149,

which was behind the Maruthi Car hit the car proceeding in the same direction

by overtaking his scooter. Due to the sudden hit from behind by the lorry, the

Maruthi Car went ahead towards right side of the road and hit a toddy tree. Due

to which the driver of the Maruthi Car sustained fatal injuries and died on the

spot. The other inmates of the car sustained grievous injuries. Immediately

after the accident, he along with the pillion rider took the injured persons to

Kamineni Hospital, Narketpally and while shifting the injured, Smt.Pushpamma

succumbed to injuries on the way to the hospital. He was in the Kamineni

Hospital, Narketpally for about half an hour and after obtaining telephone

numbers telephoned to the relatives of the deceased M.Prabhakar and informed

about the accident to them. The Maruthi Car was totally damaged. The

accident occurred due to the rash and negligent driving of the driver of the lorry

Dr.GRR, J macma_2115_2009

bearing No.AP-7-W-2149. He further stated that due to his urgent business

work, he left to Hyderabad. After completion of his work, he returned to

Narketpally on 09.05.2006 and after his return to Narketpally, Police

Narketpally examined him and recorded his statement. He also stated that he

was cited as LW.5 by the Police in the charge-sheet.

19. In his cross-examination, he stated that he had no acquaintance with the

claimants or the deceased and his evidence was not recorded in the Criminal

Court at Nalgonda by the date of his giving evidence in the motor accident O.P.

He denied the suggestion that he stated to the Police that he chased the crime

lorry, but could not catch hold the lorry driver, as he flew away.

20. As per Ex.A1, the certified copy of the FIR, the complaint was lodged by

one Koteshwar Rao, the brother-in-law of the deceased on 07.05.2006 at 04:45

PM after the accident at 02:30 PM. It was stated in the complaint that his

relative M.Prabhakar along with wife, sister and aunt went to Suryapet from

Hyderabad for attending a marriage function and after completion of marriage,

while they were returning in their Maruthi Car and when reached the outskirts

of A.P.Lingotum Village at about 02:30 PM near kilometer stone No.92/6,

while overtaking another vehicle which was proceeding in front of their vehicle,

his brother-in-law M.Prabhakar lost control over the steering and went towards

right side of the road and hit a toddy tree, resulting which his brother-in-law

Dr.GRR, J macma_2115_2009

M.Prabhakar died on the spot. As per the certified copy of the charge-sheet

filed by the Police marked under Ex.A2, their investigation revealed that the

lorry bearing No.AP-7-W-2149 hit the Maruthi Car from its behind, due to

which the accident occurred and the Police effected the arrest of the driver of

the lorry and shown him as accused and filed charge-sheet against him for the

offences under Section 304-A and 337 of IPC. PW.2 was cited as LW.5 by the

Police in the list of witnesses. Ex.A3, the certified copy of the inquest report

revealed that the accident was due to the rash and negligent driving of the car by

the deceased M.Prabhakar.

21. The Tribunal observed that the burden would lie on the claimants to

prove the involvement of the lorry in the accident and held that:

"RW.1 denied in his evidence about the involvement of the lorry in the accident. Of course, RW.1 is not an eye-witness to the accident, but the respondent No.2 relied upon the averments of Ex.A1, the certified copy of the FIR and Ex.A3, the certified copy of the inquest report filed by the petitioners. It is seen from the averments of Ex.A1, the certified copy of FIR that no where it is mentioned about the lorry bearing No.AP-7-W-2149 hitting the car of the deceased. Similarly, it is seen from the averments of Ex.A3, the certified copy of the inquest report that the involvement of the lorry in the accident is not there. It is only at a later point of time, Police came to conclusion about the involvement of the lorry in the accident. But, there is no basis for the Police to come to such conclusion about the involvement of the said lorry in the accident. It is not mentioned in the earliest report marked as Ex.A1 about the lorry hitting the car at all. It is a case where the complaint was lodged by the brother-in-law of

Dr.GRR, J macma_2115_2009

the deceased, as can be seen from the cross- examination of PW.1 and none else. Further admittedly PW.1, sister and mother of the deceased were also travelling in the said car at the time of the accident. If really, the lorry hit the car, I feel certainly PW.1 and others would have stated the said fact to Police. As already stated, even at the time of holding of inquest, none of them stated about the involvement of the lorry in the accident and it was decided during inquest that the cause of accident is due to car hitting a tree while overtaking another vehicle."

22. The Tribunal held that the evidence of PW.1 was interested and could not

be believed. With regard to the evidence of PW.2, the Tribunal observed that he

never gave any report to the Police. Further, the Tribunal found discrepancy

between the evidence of PWs.1 and 2 regarding the manner of accident

observing that PW.1 stated that the lorry stopped after the accident, whereas

PW.2 stated that though he chased the lorry, he could not succeed in his attempt.

As such, the Tribunal disbelieved the evidence of PWs.1 and 2 as not cogent

and believable. The Tribunal further observed that simply because the charge-

sheet was filed against the driver of the lorry, it could not be said that the lorry

was involved in the accident unless it was established by the petitioners about

the involvement of the lorry.

23. The learned counsel for the appellants relied upon the judgment of the

Hon'ble Apex Court in Bimla Devi and Others v. Himachal Road Transport

Corporation and Others 1 wherein it was held that the claimants had to

2009 ACJ 1725

Dr.GRR, J macma_2115_2009

establish their case on the touchstone of preponderance of probability. The

standard of proof beyond reasonable doubt could not be applied. The Motor

Accident claims are to be tried summarily and the standard of proof beyond

reasonable doubt as applicable to a criminal case is not applicable to these cases.

The FIR is only a First Information Report and the same was lodged by the

relative of the deceased, who was not an eye-witness to the accident. He was

neither travelling in the car at the material time of the accident nor was present

at the scene to narrate the manner of the accident.

24. The learned counsel for the appellants relied upon the judgment of the

Hon'ble Apex Court in Hasib v. The State of Bihar 2, wherein it was held that:

"The object of first information report from the point of view of the informant is to set the criminal law into motion. From the point of view of the investigating authorities it is to obtain information about the alleged criminal activity so as to able to take suitable steps for tracing and bringing to book the guilty party. The report does not constitute substantive evidence though it is important as conveying the earliest information about the occurrence. It can be used only as a previous statement for the purpose contemplated under Section 157 or Section 145 of the Evidence Act, that is for corroborating or contradicting its maker and not of other witnesses."

25. The Police after investigation filed charge-sheet against the driver of the

lorry holding him responsible for the accident. The Police recorded the

AIR 1972 SC 283

Dr.GRR, J macma_2115_2009

statements of the eye-witnesses Chella Dhanunjaya examined as PW.2 before

this Court and one Md.Nayeemuddin as LW.6. The said eye-witnesses were

neither related to the claimants nor had any grievance against the driver of the

lorry to implicate him in a false case. They had stated the manner of the

accident as observed by them and also admitted the injured victims in the

hospital. After recording their statements and after coming to know about the

details of the vehicle involved in the accident, Police arrested the accused and

also sent the crime vehicle lorry to be inspected by the Motor Vehicle Inspector

(for short "MVI").

26. The M.V.I. report was also marked as Ex.A5. The same would disclose

that the MVI when examined the vehicle on 31.05.2006 found the right hand

side bumper of the lorry bent, which would also prove that some damages were

caused to the lorry also in the accident. It was a strong piece of circumstantial

evidence, which would prove the involvement of the lorry in the accident apart

from the evidence of the eyewitnesses.

27. The learned counsel for the appellants relied upon the judgment of the

Hon'ble Apex Court in National Insurance Company Limited v.

Chamundeswari and Others 3 , wherein the Division Bench of the Hon'ble

Apex Court held that:

2021 ACJ 2558

Dr.GRR, J macma_2115_2009

"8. It is clear from the evidence on record of PW-1 as well as PW-3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW-1 & PW-3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW-1 herself travelled in the very car and PW-3, who has given statement before the police, was examined as eye-witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report."

28. The facts of the above case are similar to the facts of the present case.

PW.1, who travelled in the same car along with the deceased, stated the manner

of accident on oath, which was corroborated by the evidence of PW.2. There

were no contradictions in the evidence of both these witnesses. The Tribunal

without noticing the denial of PW.2 that he had not stated before the Police that

he chased the lorry and could not succeed in his attempt considered it as a

contradiction, which was not correct. No much credence could be given to the

statement of the witnesses recorded in the inquest also, as the said statements

were not signed by the said witnesses. The charge-sheet filed by the Police was

not challenged by the Insurance Company in any forum.

Dr.GRR, J macma_2115_2009

29. The learned counsel for the appellants relied upon the judgment of the

Hon'ble Apex Court in Janabai and Others v. ICICI Lombard General

Insurance Company Limited 4 , wherein it was held that:

"9. The owner has not made any complaint in respect of false implication of his vehicle or the driver; we find that the rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Section 166 of the Motor Vehicles Act, 1988 which is summary in nature. There is no reason to doubt the veracity of the statement of appellant No. 1 who suffered injuries in the accident. The application under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial. We find that the entire approach of the High Court is clearly not sustainable."

30. The Insurance Company examined its Assistant Manager as RW.1. He

stated that they have appointed an investigator to investigate the case. One

Mr.Venumadhav was the investigator. Their investigator submitted his report

on 27.09.2007. He was not aware whether their investigator had recorded the

statements of the owner and driver of the lorry. As per the investigation report,

their investigator had not contacted the lorry driver. He admitted that he had

not filed the said investigation report before the Court. He admitted that he had

no personal knowledge about the accident and was speaking basing on the

records.

2002 ACJ 2003

Dr.GRR, J macma_2115_2009

31. When the Insurance Company got investigated the case by an investigator,

there is no reason for not filing the said investigator's report before the Court.

As such, the Court can draw an adverse inference for non-filing of the said

report before it.

32. The learned counsel for the appellants relied upon the 3-Judge Bench

judgment of the Hon'ble Apex Court in Halappa v. Malik Sab 5, wherein it was

held that:

"8.The High Court has proceeded to reverse the finding of the Tribunal purely on the basis that the FIR which was lodged on the complaint of the appellant contained a version which was at variance with the evidence which emerged before the Tribunal. The Tribunal had noted the admission of RW1 in the course of his cross- examination that the insurer had maintained a separate file in respect of the accident. The insurer did not produce either the file or the report of the investigator in the case. Moreover, no independent witness was produced by the insurer to displace the version of the incident as deposed to by the appellant and by PW 3. The cogent analysis of the evidence by the Tribunal has been displaced by the High Court without considering material aspects of the evidence on the record. The High Court was not justified in holding that the Tribunal had arrived at a finding of fact without applying its mind to the documents produced by the claimant or that it had casually entered a finding of fact. On the contrary, we find that the reversal of the finding by the High Court was without considering the material aspects of the evidence which justifiably weighed with the Tribunal. We are, therefore, of the view that the finding of the High Court is manifestly erroneous and that the finding of fact by the Tribunal was correct."

2018 ACJ 686

Dr.GRR, J macma_2115_2009

33. In the present case, the Insurance Company failed to examine the owner /

driver of the lorry to prove that the said vehicle was not involved in the accident.

34. The Hon'ble Apex Court in Kunta Rajitha and Others v. M.Jayapal

Reddy and Another 6, held that:

"Mere failure to mention number of vehicle in complaint is of no consequence. The owner or insurer of the vehicle cannot be exonerated on that ground. More so, when neither the owner nor driver of vehicle was examined by the Insurance Company to prove that the vehicle was not involved."

The Hon'ble Apex Court further observed that:

"13. This Court does not at all approve the approach of the Tribunal. Whatever be the liability of a driver to be punished for rash and negligent driving of a vehicle, the registration of a crime with reference to the accident is treated as proof as to the involvement of the vehicle when the issue arises in a claim petition before the Tribunal. When an accident occurs and the vehicle involved flees away, it is just unimaginable as to how the number thereof can be mentioned in the complaint or other proceedings instantly. The Tribunal proceeded as though the claim cannot be considered unless all the particulars are mentioned in the complaint immediately after the accident. This virtually exonerates the owner or insurer of a vehicle, which does not stop after the accident. The standard of proof insisted by the Tribunal, in a way is stringent than the one in a criminal case."

2012 (2) ALD 2

Dr.GRR, J macma_2115_2009

35. This Court in National Insurance Company Limited, Khammam v.

Shaik Yousuf Bee and Others 7, also held that:

"9. Here it requires to be noticed is that the occurrence of accident and the involvement of the offending vehicle in a claim case under Section 166 of the Motor Vehicle Act need not be established by the claimants beyond reasonable doubt as is required for proof of the guilt of the accused in a criminal case by the prosecution. It is enough for the claimants to establish the involvement of the vehicle basing on preponderance of probabilities. Moreover, a summary procedure is contemplated for the Tribunals constituted under the Motor Vehicles Act to be followed in the enquiries in claim cases arising under the Motor Vehicles Act. The evidence let in should be summary in nature and the Tribunal need not follow the strict rules of evidence and it can adopt its own procedure for conducting enquiries into the claims.

10. In the instant case, two factors assume importance. They are (1) that the police after conducting thorough investigation found that the accident was caused due to rash and negligent driving of the ambassador car bearing No.AP-I- 3411 by the 5th respondent/driver. The 5th respondent/driver was charge sheeted for the offence of causing death by rash and negligent driving. For the said offence before the magistrate, he was convicted under Section 304- A IPC and was sentenced to pay fine of Rs.5,000/- on his own admission. Except raising a mere contention in the counter that the 5th and 6th respondents, who are the driver and the owner of the ambassador car bearing No. API 3411 colluded with the claimants to enable them to claim compensation; no evidence is let in by the appellant/insurance company to prove the said fact. PW1, an official of the insurance company stated in his evidence that the appellant/insurance company appointed an investigator, who investigated in to the cause of the accident and filed a report. The insurance

2013 (2) ALD 649

Dr.GRR, J macma_2115_2009

company did not examine the said investigator nor did it mark the report prepared by the investigator. When the claimants adduced evidence in proof of the involvement of ambassador car bearing No.API 3411 in the accident, it is obligatory on the part of the appellant/insurance company to summon the owner and driver of the said vehicle and cross examine them to elicit the fact that whether they have colluded with the claimants, but it did not do so."

36. The learned counsel for the appellants relied upon the judgment of the

High Court of Madras, Madurai Bench in Royal Sundaram Alliance

Insurance Company Limited v. Vasanthapurani and Others 8 , wherein it

was held that:

"12. Another contention made by the learned Counsel for the appellant- Insurance Company is that only for the purpose of insurance claim, that vehicle was subsequently included. Even that theory cannot be accepted for the reason that if the driver allows their vehicle to be used for the purpose of claiming insurance, no driver would come forward to get arrested for the sake of some third party who is not connected to him. In this case, as per Ex.P.2 - remand report, the driver of Eicher Van was arrested and he was remanded and therefore, the contention made by the learned Counsel for the appellant-Insurance Company is liable to be rejected."

37. In the present case also, the driver of the lorry was arrested and remanded

before the Court and the driver or the owner of the vehicle had not challenged

the same.

2018 ACJ 233

Dr.GRR, J macma_2115_2009

38. The learned counsel for the appellants relied upon the judgment of this

Court in Bodige Padma and Others v. Makula Shaker and Others 9 on the

aspect that:

"The Tribunal has to take a broad and comprehensive view of the matter and the claimants are not required to prove each and every fact relating to the occurrence of the accident meticulously. In the instant case, PW.2 had categorically stated before the Tribunal below that he and other inmates of the jeep saw the lorry involved in the accident proceeding at fast speed in a rash and negligent manner, they heard the sound, after proceeding ahead, they noticed the motorcycle and two persons lying on the ground with injuries. PW.3, who also gave the same version stated that after he got down at Parkal, he identified the number of the lorry and remembered the same. Particularly, if the version of these two witnesses is taken into consideration, it goes to show that lorry was involved in the accident and the accident was due to rash and negligent driving of the driver of the lorry bearing No. AP-K-7039. The learned Tribunal unnecessarily indulged in minute examination of the evidence of PWs.2 and 3 and gave undue importance to some discrepancies, which are bound to occur in the evidence of natural witnesses. In the above referred two judgments and several other judgments, the Supreme Court held that the claimants in claim cases under Motor Vehicles Act have to merely establish their case on touchstone of preponderance of probability and the standard of proof beyond reasonable doubt shall not be applied. The learned Tribunal overlooked the said established principle and erroneously recorded a finding that the appellants could not be able to establish that the lorry bearing No. AP-K-7039 was involved in the accident. The leaned Tribunal further overlooked the pleadings of the parties and permitted the counsel for the third respondent/insurance company to cross

2013 ACJ 1844

Dr.GRR, J macma_2115_2009

examine PWs.2 and 3 and other witnesses beyond the scope of its pleadings. Then the Tribunal picked up some discrepancy here and there and took the view that PWs.2 and 3 are planted witnesses. The Tribunal by going through the contents of the written statement filed by the respondents ought to have understood properly the scope of their contest in the claim petition in relation to the factum of accident. None of the respondents anywhere stated in their written statements that the lorry bearing No.AP-K-7039 was not involved in the accident and it was planted for the purpose of the present case. If really the said lorry was planted to enable the appellants to claim compensation from the third respondent/insurance company or from the owner of the said vehicle, the first and foremost contention of the respondents would be that the vehicle was not at all involved in the accident. As could be seen from the written statements, they only contended that the accident was not due to rash and negligent driving of the driver of the lorry bearing No.AP-K-7039. The second respondent is the owner of the vehicle, apart from making bald denial of the averments made in the petition in relation to the manner of happening of the accident stated that if at all there is any liability, it has to be fastened on the third respondent/insurance company only since the vehicle was under a valid policy with the insurance company/third respondent on the date of accident. He did not state anywhere in the written statement that the vehicle was not at all involved in the accident. The theory that the second respondent owner and the police colluded with the claimants was for the first time put-forth by the third respondent/insurance company in the course of the cross-examination without there being any pleading in the written statement. The learned Tribunal ought not to have permitted the counsel for the third respondent/insurance company to cross examine the witnesses on the point that the lorry bearing No.AP-K-7039 was not at all involved in the accident since it was not pleaded by respondent No.3 in its written statement."

Dr.GRR, J macma_2115_2009

39. In the present case also, though the respondent No.2 stated that an

additional written statement would be filed if required, had not chosen to file

any additional written statement and had not taken the defence that the lorry was

not involved in the accident except making a bald denial with regard to the

manner of the accident.

40. In K.Rajani and Others v. M.Satyanarayana Goud and another10, this

Court held that:

"19. When the Insurance Company had knowledge that the claimants have alleged involvement of the lorry bearing registration No.ABT 3 in the accident, the Insurance Company should verify the facts. The possibility of falsely involving the vehicle in an accident cannot be ruled out. But as seen from the recitals of the counter, the Insurance Company had not taken any specific stand. At one stage, it doubted the involvement of the offending vehicle in the accident and at another stage, the insurance company had pleaded that the deceased himself had contributed to the accident. Thus, the insurance company had no clear view with regard to the involvement of the offending vehicle in the accident. When the Insurance Company entertains a doubt with regard to the involvement of a vehicle in the accident, it should appoint an investigator to enquire into the allegations as to whether a particular vehicle had plied on the particular route at particular time on a particular day or not. Fact should be verified. If the Insurance Company collects any such evidence to establish that the vehicle was not involved in the accident, then, they must contest the matter and adduce evidence in support of their case. When they come to know that the police investigation is false or that a vehicle is falsely implicated in a case, they must

2014 (6) ALT 331

Dr.GRR, J macma_2115_2009

approach the superior police officers and see that necessary action is taken against the erring police officers who have filed a false charge- sheet implicating the vehicle which has no involvement in the accident. They must also challenge the charge-sheet in appropriate proceedings. What happened during the course of investigation and how the police have come to know about the involvement of the vehicle and whether it is due to finding of the driving license of the driver of the offending vehicle at the place of accident or due to the version of the eye witnesses, all those aspects cannot be gone into at this stage. The possibility of police coming to know about the involvement of a vehicle or an accused through some unknown source also cannot be ruled out."

41. Another observation made by the Tribunal was with regard to the OD

claim forms marked as Exs.B1 to B4. Ex.B2 is the personal accident claim

form and Ex.B3 is the Own Damage claim form. In Ex.B2, the personal claim

form in column No.4 as to the manner of the accident, it was mentioned therein

that while crossing the vehicle at A.P.Lingotum Village on 07.05.2006, lost the

control and went to right side of the road and hit a palmyrah tree due to hit by a

lorry from back side.

42. Thus, the manner of the accident that the car was hit by the lorry from

behind was stated in Ex.B2, which was filed on 24.06.2006. As such, the same

could not be considered that it was against the statements given by PWs.1 and 2

or that it was not helpful to the case of the claimants as observed by the

Tribunal.

Dr.GRR, J macma_2115_2009

43. In Ex.B3 in column No.5 pertaining to details of accident, it was stated

that while coming from Suryapet to Hyderabad, the car reached to

A.P.Lingotam Village at 03:00 PM, while crossing the opposite side vehicle, the

car lost the control, went to right side of the road and hit a palmyrah tree,

damaged the car and died M.Prabhakar on the spot.

44. RW.1 in his cross-examination admitted that their office had received

Exs.B2 and B3 claim forms in the month of August, 2006. He stated that he did

not know whether the hand writing in Exs.B2 and B3 were of the same person.

As per PW.1, these forms were not filed by her and she had signed on blank

papers brought by her husband's colleagues.

45. The manner of the accident stated in Ex.B3 alone cannot be the basis for

dismissing the claim petition filed by the claimants, as there was oral evidence

of PWs.1 and 2, which was corroborated by the investigation conducted by the

Police and the circumstantial evidence with regard to damages to the crime

vehicle as mentioned by the M.V.I, which would prove the case of the claimants

that the lorry bearing No.AP-7-W-2149 was involved in the accident and that

the accident was due to the rash and negligent driving of the lorry by its driver.

46. As such, point No.1 is answered in favor of the claimants as against the

respondent No.2 - Insurance Company.

Dr.GRR, J macma_2115_2009

P O I N T No.2:

Whether the appellants were entitled for compensation? If so, what was the quantum of compensation entitled by the appellants and from whom?

47. As point No.1 is answered holding that the deceased M.Prabhakar died in

the motor vehicle accident due to the rash and negligent driving of the driver of

the lorry bearing No.AP-7-W-2149 by its driver, the appellants are entitled for

compensation. To decide the quantum of compensation, the appellants -

claimants had adduced the evidence of PW.3. PW.3 was the Area Manager of

Deccan Grameena Bank. He stated that the deceased worked as Manager

(Credit) at their Head Office. He was appointed as Branch Manager on

28.05.1984 and was promoted to Scale-III post in 2005. His gross salary was

Rs.29,004.92 ps. by the date of his death and his Date of Birth as per record was

17.05.1965. The superannuation age was 60 years and he got another 14 years

9 days service. He stated that there would be at least three pay revisions during

his remaining service and there was possibility of getting one more promotion

and hike of Rs.620/- per annum as increment and a stagnation increment and

admitted Ex.A9 as the salary certificate of the deceased issued by their office.

48. There was no dispute to this evidence. As such, the age of the deceased

can be taken as 45 years 11 months by the date of accident on 07.05.2006 i.e. 13

days short of completing 46 years.

Dr.GRR, J macma_2115_2009

49. The learned counsel for the appellants relied upon the judgment of the

Hon'ble Apex Court in Shashikala and Others v. Gangalakshmamma and

Another 11, wherein the deceased was aged 45 years 5 months 28 days as per his

Date of Birth and as per the driving license and the Tribunal had taken the age

as 46 years. The Hon'ble Apex Court observed that since the deceased has

completed 45 years, the High Court had rightly taken the age of the deceased as

45 years and adopted multiplier "14" which was the appropriate multiplier.

50. In the present case also, considering the age of the deceased as 45 years,

multiplier "14" is applicable. Future prospects are applicable as per the

judgment of the Hon'ble Apex Court in National Insurance Company Limited

v. Pranay Sethi and Others 12 and considering the age of the deceased as 45

years, an addition of 30% of his salary has to be added towards future prospects,

as the deceased was having a permanent job. As such, the deceased is entitled

to an amount of Rs.8,701/- (30% of Rs.29,004/-) towards his future prospects.

As such, the income of the deceased including his future prospects can be

considered as Rs.29,004/- + Rs.8,701/- = Rs.37,705/-.

51. Considering the number of claimants being "4", one-fourth is to be

deducted towards personal expenses of the deceased as per the judgment of the

Hon'ble Apex Court in Sarla Verma (Smt.) and Others v. Delhi Transport

2015 ACJ 1239

2017 ACJ 2700

Dr.GRR, J macma_2115_2009

Corporation and Another 13. After deducting one-fourth of Rs.37,705/- (i.e.

Rs.9,426/-), the income of the deceased for the purpose of calculation can be

taken as Rs.28,279/- (Rs.37,705/- (-) Rs.9,426/-). As such, the loss of

dependency can be calculated as Rs.28,279/- x 12 x 14 = Rs.47,50,872/-.

52. All the claimants are entitled for loss of consortium as per the judgment

of the Hon'ble Apex Court in Magma General Insurance Company Limited v.

Nanu Ram and Others 14 . As such, an amount of Rs.40,000/- with

enhancement @ 10 % for every three (03) years as per the judgment of the

Hon'ble Apex Court in National Insurance Company Limited v. Pranay

Sethi and Others (cited supra) is awarded to each of the claimants. Hence, the

claimants are entitled to an amount of Rs.44,000/- each under this head.

53. The learned counsel for the appellants submitted that the mother of the

deceased (4th claimant) died on 07.03.2016 and he filed a memo vide

U.S.R.No.27414 dated 13.03.2023 stating that only the existing parties were the

legal representatives of the deceased 4th claimant. He relied upon the judgment

of the Hon'ble Apex Court in Kirti and Others v. Oriental Insurance

Company Limited 15 on the aspect that the 4th claimant was also entitled for

parental consortium as the claims and legal liabilities would be crystallized at

the time of accident and changes post there to would not affect the pending

2009 ACJ 1298

2018 ACJ 2782

2021 ACJ 1

Dr.GRR, J macma_2115_2009

proceedings. As per the above judgment, 4th claimant is also entitled for

parental consortium.

54. The claimants are also entitled to an amount of Rs.15,000/- towards loss

of estate and Rs.15,000/- towards funeral expenses which should be enhanced

@ 10 % in every three (03) years as per the judgment of the Hon'ble Apex

Court in National Insurance Company Limited v. Pranay Sethi and Others

(cited supra). As such, an amount of Rs.16,500/- each is awarded under the

heads, loss of estate and funeral expenses respectively.

55. Hence, the compensation entitled by the appellants - claimants under

various heads is as follows:

          S. No.                   Heads                      Compensation
            1.      Loss of dependency                  Rs.47,50,872/-
            2.      Loss of consortium                  Rs.1,76,000/-
            3.      Loss of estate                      Rs.16,500/-
            4.      Funeral Expenses                    Rs.16,500/-
                                                 Total: Rs.49,59,872/-

56. Though the claimants claimed compensation of Rs.25,00,000/-, there is

no restriction that the Court cannot award compensation exceeding the claim

amount, as per the judgment of the Hon'ble Apex Court in Ramla and Others v.

National Insurance Company Limited and Others 16, wherein it was held that:

"The function of the Tribunal or Court under Section 168 of the Motor Vehicles, 1968 is to award "just compensation". The Motor Vehicles

2019 ACJ 559

Dr.GRR, J macma_2115_2009

Act is beneficial and welfare legislation. "Just compensation" is one which is reasonable on the basis of evidence adduced on record. It cannot be said to have become time barred. Further, there is no need for a new cause of action to claim an enhanced amount. The Courts are duty bound to award just compensation."

57. As such, the claimants are entitled to the compensation as arrived which

is considered as just and reasonable and all the claimants are liable to share the

compensation equally.

From whom:

58. The respondent No.2 - Insurance Company is liable to pay the above

compensation amount to the claimants in view of the law of indemnity.

P O I N T No.3: