Telangana High Court
Payyavula Rajitha vs Konda Ashok on 23 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY M.A.C.M.A.NOs.242 and 426 of 2022 COMMON JUDGMENT:
MACMA No.242 of 2022 is an appeal filed by the claimants
and MACMA No.426 of 2022 is an appeal filed by T.S.R.T.C.
Considering the fact that these two appeals arise out of the same
award dated 08.03.2022 passed in M.V.O.P.No.627 of 2016 on the
file of the Principal Motor Accident Claims Tribunal-cum-Principal
District Judge, Warangal, (for short, "the Tribunal"), these two
appeals are taken up together and decided by this common
judgment.
2. For the sake of convenience, the parties hereinafter will be
referred to as they are arrayed before the Tribunal.
3. The facts leading to filing of these two appeals are that
M.V.O.P.No.627 of 2022 was filed under Section 166 of the Motor
Vehicles Act, 1988, by the children, wife and parents of Payyavula
Yakaiah (hereinafter referred to as "the deceased"), against
respondents 1 and 2, claiming compensation of Rs.15,00,000/- for
the death of the deceased in an accident. It is stated that on
15.06.2016 in morning hours, the deceased and his villagers went
to Vanabojanalu at Karmaram forest area and due to paucity of
water, deceased as a pillion rider and one Pandavula Madhu as LNA,J MACMA Nos.242 & 426 of 2022
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rider on his Bajaj Pulsar motor cycle bearing registration No.AP-
36-R-8033, went to village for water can and after purchasing
water can, they returned to forest area and at about 3.00 p.m.,
when they reached the outskirts of Tadvai village, TSRTC Bus
bearing registration No.AP-29-Z-1099 driven by its driver in rash
and negligent manner came from Eturunagaram side to
Hanamkonda side and dashed to the motor cycle of the deceased
in opposite direction, due to which, the deceased and pillion rider
fell on the road, sustained fatal injuries and deceased died on the
spot. The Police, P.S.Tadvai registered a case in Crime No.65/2016
and after investigation filed charge sheet under Section 304-A IPC
against the driver of TSRTC Bus.
4. It is also stated that the deceased was aged 30 years, hale
and healthy and was earning Rs.15,000/- per month by doing
agriculture and also the deceased is an shepherd. Due to abrupt
termination of life of the deceased in an accident, petitioners lost
their source of dependency.
5. The respondent no.1 remained ex parte. The respondent
No.2/TSRTC filed counter denying the manner in which the
accident took place including the age, avocation and income of the
deceased. It is contended that the owner and the insurer of motor LNA,J MACMA Nos.242 & 426 of 2022
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cycle are necessary parties to the claim petition and prayed to
dismiss the claim petition.
6. On the basis of the above pleadings, the Tribunal framed the
following issues:-
1. Whether the accident occurred due to rash and negligent driving of the driver of TSRTC Bus bearing No.AP-29-Z-
1099 resulting in death of Payyavula Yakaiah?
2. Whether petitioners are entitled for compensation, if so, at what rate?
3. To what relief?
7. In order to substantiate the case, on behalf of the claimants,
P.Ws.1 and 2 were examined and Exs.A1 to A19 were marked.
Respondent no.1 himself examined as RW.1 and no documents
were marked. On behalf of respondent no.2-TSRTC, no oral or
documentary evidence was adduced.
8. The Tribunal, on conclusion of the pleadings and evidence
placed on record by the parties, vide the impugned award, held
that the accident had occurred due to rash and negligent driving of
the driver of the R.T.C. bus and accordingly, awarded an amount of
Rs.9,98,900/- with interest @ 7.5% per annum from the date of
petition till the date of realization to be paid by the respondents 1 LNA,J MACMA Nos.242 & 426 of 2022
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and 2 jointly and severally. Challenging the same, the present
appeals came to be filed by the claimants as well as the TSRTC.
9. Heard Sri K.Venumadhav, learned counsel for the
appellants/claimants and Sri G.Srinivas, learned standing counsel
for TSRTC.
10. During the hearing of the appeals, the primary ground of
challenge raised by TSRTC in MACMA No.426 of 2022 was firstly,
so far as disputing the accident itself, in which the deceased died
and secondly, the quantum of compensation awarded by the
Tribunal. The learned standing counsel for TSRTC also submitted
that driver of the crime vehicle was acquitted in criminal case and
there was contributory negligence on the part of the deceased since
accident occurred due to triple riding of the motor cycle.
11. MACMA No.242 of 2022 is an appeal filed by the claimants
seeking for enhancement of compensation. The primary ground
seeking for enhancement of compensation was that the Tribunal
had not awarded the compensation as claimed by the claimants
and secondly, the Tribunal had erred in awarding 50%
contributory negligence on the part of the deceased without there
being any evidence, so also the consortium to the claimants. The
learned counsel for claimants submitted that the Tribunal erred in
taking the income of the deceased as Rs.9,000/-, instead of LNA,J MACMA Nos.242 & 426 of 2022
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Rs.15,000/-. He further submitted that the Tribunal ought to have
appreciated that there was no negligence on the part of the
deceased in riding the motor cycle.
12. In support of the contention that the Tribunal erred
imposing contributory negligence to the extent of 50% on the part
of the rider/driver of the motor cycle, without there being any
evidence, the learned counsel for claimants relied upon the
decision of the erstwhile High Court of Andhra Pradesh in United
India Insurance Company Limited vs. Chendri Ramaiah and
others 1 and Reliance General Insurance Co.Ltd., vs. T.Laxman
Goud and others 2
Consideration:
13. Coming to the first ground raised by TSRTC i.e., disputing
the accident that occurred on 15.06.2016, this Court is of the
opinion that TSRTC has failed to discharge its obligations so far as
proving the contention raised by it by placing cogent, substantial
material and evidence in support of its contention. TSRTC neither
examined any witness nor marked any document to support their
contention.
1 2010 SCC Online AP 942 : (2011) 2 ALD 3 2 2014 LawSuit (Hyd) 1051 LNA,J MACMA Nos.242 & 426 of 2022
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14. PW.2-Sadu Kumar, who has been examined as an eye
witness, deposed that he witnessed the accident and he
categorically deposed that accident occurred only due to rash and
negligent driving of TSRTC Bus with high speed and thereby
dashed the motor cycle of the deceased in a opposite direction.
15. As per the postmortem report of the deceased, there is no
alcoholic content present in the stomach of the deceased. It is the
case of TSRTC that the deceased, was in drunken state and was
not wearing helmet and as such, the accident occurred. But, in the
absence of any documentary evidence or conclusive evidence to
come to conclusion that deceased was in drunken state and not
wearing helmet and rider of the motor vehicle was in a drunken
state at the time of accident, the contention of TSRTC cannot be
believed.
16. In Chendri Ramaiah (supra), the learned single Judge of
erstwhile High Court of Andhra Pradesh held as under:
"5. Evidence in that particular case is the first criterion while considering the issue regarding negligence or contributory negligence. If evidence on record is scrutinised in the light of the above pronouncements of this Court, it is evident that there is sufficient evidence on record let in by the claimants to prove negligence on the part of D.C.M van driver. PW2 is cashier in Isnapur filling station, Muthangi in front of which petrol pump the accident took place. It is his categorical evidence that the accident occurred due to fault of D.G.M van driver as he drove the vehicle in rash and negligent manner and dashed the motor cycle in wrong direction. It is not a case where there was head on collision between two vehicles on middle of the road. D.C.M van driver drove the same towards wrong side and dashed the opposite motor cycle killing three riders on the motor cycle on the spot. This is not a case where due to triple riding, driver of the motor cycle became cramped and could not control the vehicle due to discomfort or inconvenience because of triple riding. Evidence on record amply proved that the fault was with D.C.M van driver only and that LNA,J MACMA Nos.242 & 426 of 2022
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there was no fault on the part of motor cycle rider/driver and that for no fault of the motor cycle driver, D.C.M van came on to wrong side and dashed the motor cycle which was going in proper direction. Thus, the lower Tribunal was right in holding that the accident took place due to rash and negligent driving of D.C.M van driver. The motor cycle rider/driver on which three deceased persons were travelling did not contribute any negligence for this accident. This accident was not due to triple riding of the motor cycle, but due to fault as well as rash and negligent driving on the part of the D.C.M van driver."
17. In the above decision, the eye witness P.W.2 categorically
deposed that the accident occurred due to fault of D.C.M van driver
as he drove the vehicle in rash and negligent manner and dashed
the motor cycle in wrong direction. In the case on hand, P.W.2-
Sadu Kumar, an eye witness, categorically deposed that the
accident occurred only due to rash and negligent driving of TSRTC
bus with high speed and dashed the opposite motor cycle, killing
three riders of the motor cycle on the spot.
18. Learned counsel for the appellant-claimants contended that
the Tribunal erroneously deducted 50% of the compensation
amount on account of contributory negligence on the part of the
deceased. There is no dispute that the deceased along with two
others were travelling on two wheeler in contravention of the
provisions of the M.V.Act. The triple riding/driving of two wheeler
would attract penal action in accordance with the provision of the
M.V.Act. However, that would not necessarily be basis for denying
compensation to the victims/dependents since the M.V.Act is
beneficial legislation and is aimed at providing financial support to LNA,J MACMA Nos.242 & 426 of 2022
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the victims/dependents. In a given case, where a vehicle is driven
in violation/contravention of the provisions of M.V.Act and it
resulted in an accident, the Tribunal can fix contributory
negligence on the person, who drove the vehicle in violation of the
provisions of the M.V.Act subject to sufficient material, evidence on
record. However, in the present case, there is no material, evidence
to show that the accident had taken place only because of triple
riding of the vehicle by the deceased. Therefore, the Tribunal erred
in deducting 50% towards contributory negligence on the part of
the deceased. In considered opinion of this Court, the same is not
sustainable and accordingly, set aside.
19. The facts of the decision referred supra are similar to the
facts of the present case. This Court is in respectful agreement
with the decision referred to above. Thus, this Court is of the
considered opinion that the Tribunal had erred in imposing 50%
contributory negligence on the part of the deceased.
20. In the absence of any material on the part of TSRTC, it is
difficult to accept the contention of negligence on the part of pillion
rider of the motor cycle on the ground of not wearing the helmet.
The said ground raised by the appellant-TSRTC thus stands
answered in the negative.
LNA,J MACMA Nos.242 & 426 of 2022
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21. Insofar as the other contention raised by the learned counsel
for TSRTC with regard to the quantum of monthly income of the
deceased, the appellants/claimants, except claiming monthly
income of the deceased as Rs.15,000/- by doing agriculture and as
shepherd, have not placed any material or evidence before the
Tribunal in proof of monthly income of the deceased. In the
absence of any proof with regard to the income of the deceased, in
considered opinion of this Court, the Tribunal had rightly
considered the monthly income of the deceased as Rs.9,000/- per
month.
22. Coming to the appeal in MACMA No.242 of 2022 filed by the
claimants, on perusal of the entire award, considering the age of
the deceased as 32 years as on the date of accident, the Tribunal
had rightly considered all the counts i.e., personal expenses, future
prospects, multiplier, loss of estate and funeral expenses etc., in
view of the decisions of Hon'ble Apex Court in Sarla Verma and
others vs. Delhi Transport Corporation and another 3 and National
Insurance Co.Ltd., vs. Pranay Sethi and others 4,
23. However, insofar as the contention of the learned counsel for
claimants, Tribunal erred in not awarding consortium to the
claimants, it is relevant to refer to the decision of Hon'ble Apex
3 (2009) 6 SCC 121 4 (2017) 16 SCC 680 LNA,J MACMA Nos.242 & 426 of 2022
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Court in Pranay Sethi (supra) at paragraph 59.8, as per which,
the claimants are entitled to Rs.40,000/- each towards
consortium.
24. The other contention raised by the learned counsel for
claimants that Tribunal erred in imposing 50% of the contributory
negligence on the part of the rider/driver of the motor cycle i.e.,
and also due to rash and negligence on the part of the deceased
also and this issue is already discussed in the preceding
paragraphs and answered in favour of the claimants.
25. The contentions raised by the learned counsel for
appellants/claimants deserve to be allowed to the above extent.
Conclusion:
26. In view of the above discussion, material and evidence placed
on record, the compensation amount is recalculated as under:
Sl.No. Head Compensation awarded 1 Income Rs.1,08,000/- per annum (Rs.9,000/- per month) 2 Future prospects Rs.43,200/- (i.e., 40% of the income Rs.1,08,000/-) 3 Total Income Rs.1,51,200/- per annum 3 Deduction towards personal Rs.37,800/- (i.e., 1/4th of Rs.1,51,200/-) expenses 4 Net Income Rs.1,13,400/- (i.e., Rs.1,51,200/- (-) Rs.37,800/- ) 5 Multiplier 17 6 Loss of dependency Rs.19,27,800/- (i.e., Rs.1,13,400/- x 17) 7 Compensation for loss of Rs. 2,00,000/- consortium (Rs.40,000/- x 5) 8 Loss of estate Rs. 15,000/- LNA,J MACMA Nos.242 & 426 of 2022 11 9 Funeral expenses Rs. 15,000/- Total compensation to be paid : Rs.21,57,800/-
27. The total compensation amount payable to the claimants is
enhanced from Rs.9,98,900/- to Rs.21,57,800/-, subject to
payment of court fee on enhanced compensation amount. The said
compensation amount shall also carry interest @ 7.5% per annum
from the date of the claim petition made before the Tribunal till the
date of the actual payment. The TSRTC is directed to ensure that
the entire amount of compensation is deposited within a period of
six weeks from the date of receipt of copy of this order, duly
adjusting the amount, if any, already paid by TSRTC. The ratio of
apportionment of amounts among the appellants/claimants and
the permission to withdrawal shall be the same in terms of the
award passed by the Tribunal.
28. In the result, MACMA No.242 of 2022 filed by the
appellants/claimants is allowed in part as indicated above and
MACMA No.426 of 2022 filed by appellant/TSRTC is dismissed.
There shall be no order as to costs.
29. Pending miscellaneous applications, if any, shall stand
closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 23.01.2024 kkm LNA,J MACMA Nos.242 & 426 of 2022
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HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.Nos.242 and 426 of 2022
Date: 23.01.2024
Kkm