Telangana State Road Transport ... vs Payyavula Rajitha And 4 Others

Telangana High Court

Telangana State Road Transport ... vs Payyavula Rajitha And 4 Others 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

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

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

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

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

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

7

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

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

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

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.