Telangana High Court
Mallepally Pushpa,Pushpavathi And 2 ... vs Banoth Srinu And Another on 23 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No.412 of 2018 J U D G M E N T:
Dissatisfied and aggrieved with the dismissal Order
dated 31.07.2017 passed in Motor Vehicle Original Petition
No.890 of 2013 by the learned Chairman, Motor Vehicle
Accident Claims Tribunal-cum-Principal District Judge,
Nalgonda (for short "the Tribunal"), the appellants-
claimants 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
Tribunal.
03. Brief facts of the case are that the petitioners
filed a petition under Section 166 of the Motor Vehicle Act,
claiming compensation of Rs.10,00,000/- with interest on
account of death of Sri Mallepally Veeraiah, husband of
claimant No.1 and father of claimant Nos.2 & 3 (hereinafter
referred to as 'the deceased'), who died in a Motor Vehicle
Accident that occurred on 02.09.2013.
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04. According to the petitioners, on 02.09.2013
while the deceased as rider along with his villager by name
Sreenu as pillion rider were proceeding on Hero Honda
Motorcycle bearing No. AP 24 AQ 6672 from Penpahad
Village and Mandal towards Suryapet Town, on extreme left
side of the road and when they reached front side of
Eenadu Office at about 03.30 PM., one Hero Honda
Motorcycle bearing No. AP 24 AH 2829 (for short 'Crime
Vehicle') came in opposite direction from Suryapet town
towards Durajpally side, in high speed, rash and negligent
manner and dashed Hero Honda Motorcycle bearing No. AP
24 AQ 6672 of the deceased. Due to which, the deceased
sustained serious head injury and other bleeding injuries
all over the body and he was shifted to Government Area
Hospital at Suryapet in 108 Ambulance. Again he was
shifted to Krishnaveni Hospital, Hayathnagar at Hyderabad
and while undergoing treatment the deceased succumbed
to the injuries on 14.09.2013. The Police, Suryapet Town
registered a case in Crime No.319 of 2013 for the offence
under Section 337 of the Indian Penal Code against the
rider of Hero Honda Motorcycle bearing No.AP 24 AH 2829 3
and later section of law was altered to Section 304-A and
337 of the Indian Penal Code.
05. As per the claimants, the deceased was aged 45
years as on the date of accident and he used to work as
Electrician and doing agriculture and was earning
Rs.10,000/- per month and used to contribute his entire
earnings for the welfare of the family. Due to sudden
demise of the deceased, the petitioners lost their bread
winner and love and affection. Therefore, the claimants
filed the claim petition against respondent Nos.1 & 2
claiming compensation of Rs.10,00,000/- on various
heads.
06. Before the Tribunal, while the respondent No.1
remained ex-parte, the respondent No.2 filed counter
denying the averments of the petition, age, avocation of the
deceased, the relationship between the deceased and the
claimants, manner of accident, involvement of the crime
vehicle, driving license of the rider and also contended that
the compensation claimed by the claimants is very high
and exorbitant and prayed to dismiss the petition. 4
07. Before the Tribunal, the petitioners got
examined petitioner No.1 who is wife of the deceased as
PW1, Doctor who treated the deceased as PW2 and
Eyewitness to the accident as PW3 and got marked Exs.A1
to A7. On behalf of the respondents, no oral evidence was
adduced and Ex.B1-Copy of Insurance Policy is marked.
08. Considering the claim of the claimants and
counter filed by respondent No.2 and on evaluation of oral
and documentary evidence, the Tribunal dismissed the
Motor Vehicle Original Petition.
09. Challenging the same, the claimants have filed
this Motor Accident Civil Miscellaneous Appeal.
10. Heard the learned counsel appearing on behalf
of appellants and the learned Standing Counsel appearing
on behalf of Insurance Company-respondent No.2. Even
after service of notice, there is no representation on behalf
of respondent No.1. Therefore, the submissions of
respondent No.1 are treated as heard. Perused the
material available on record.
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11. The main contention of the learned counsel for
appellants-claimants is that though the claimants have
proved the case by adducing cogent and convincing
evidence and also relying on relevant documents, but the
Tribunal without considering the same properly, dismissed
the claim application of the claimants. Hence, he prayed to
allow this Motor Accident Civil Miscellaneous Appeal.
12. On the other hand, the learned Standing
Counsel for respondent No.2-Insurance company has
contended that the learned Tribunal has rightly dismissed
the claim application after taking into consideration entire
evidence and the same needs no interference by this Court.
13. Now the point for consideration is:
Whether the dismissal Order dated 31.07.2017 passed in Motor Vehicle Original Petition No.890 of 2013 by the learned Tribunal, is liable to be set aside?
14. This Court has perused the entire evidence and
documents available on record.
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15. Petitioner No.1 who is wife of the deceased is
examined as PW1 reiterated the contents of the claim
application and got marked Ex.A1 to A7 as she is not
eyewitness to the said accident, hence she got examined
PW3 who is eyewitness to the accident, deposed that he is
running a hotel at Eenadu Office at Suryapet Town and on
02.09.2013 at about 03:30 PM., he was standing in front of
his hotel and at that time one Hero Honda Motorcycle
bearing No. AP 24 AQ 6672 was proceeding to Suryapet
Town, the rider of the said motor cycle was riding the said
motorcycle in normal speed on extremely left side of the
road by observing traffic rules, in the meantime one Hero
Honda Motorcycle bearing No. AP 24 AH 2829 came in
opposite direction from Suryapet Town to Durjupally side
at high speed in a rash and negligent manner and dashed
Hero Honda Motorcycle bearing No. AP 24 AQ 6672 due to
which the rider of the motorcycle sustained bleeding
injuries and grievous head injury and bleeding from ear
and nose, fracture of right side ribs, grievous injury chest
and abdomen and other multiple injuries all over the body. 7
16. During the course of cross-examination of PW1
and PW3, nothing was elicited to disbelieve their evidence.
17. PW2 is the Doctor who treated the deceased
deposed that he worked as General Physician at
Krishnaveni Multispeciality Hospital, Hayathnagar and
that the deceased was brought to their hospital with
unconscious state met with Road Traffic Accident on
02.09.2013 and was admitted, he examined and found
deep lacerated injury to right side of the head over the eye,
right side of head, right side of the shoulder and chest. He
had bleeding ear and nose. On investigation, diagnosed
multiple fracture of right frontal bone, multiple ribs
fracture of right side. He was treated by Neuro Surgeon,
Chest Physician, Cardiologist and General and ENT
Surgeons. While undergoing treatment, he succumbed on
14.09.2013 due to cardiac arrest. The claimants incurred
medical expenses of Rs.2,85,422/- and Ex.A6-Discharge
death summary and Ex.A7-Final bills were marked
through this witness. During the course of cross-
examination, PW2 stated that this case is being MLC case
so that they informed to local Police, but they do not know 8
whether the local Police have taken any action or not. This
witness denied other suggestions.
18. It is pertinent to state that the petitioners have
also relied upon Ex.A1 to A7. As regards the manner of
accident is concerned, the evidence of PW3-Eyewitness to
the accident, coupled with the documentary evidence
available on record i.e., Ex.A1-FIR discloses that after the
accident, based on a complaint, a case in Crime No.319 of
2013 was registered by Police, Suryapet Town for the
offence under Section 337 of the Indian Penal Code against
the rider of Hero Honda Motorcycle bearing No.AP 24 AH
2829 and later section of law was altered to Section 304-A
and 337 of the Indian Penal Code and after completion of
investigation Ex.A5-Charge sheet was filed against the
rider of Hero Honda Motorcycle bearing No.AP 24 AH 2829.
Ex.A2-Inquest report discloses that the deceased died in
the road traffic accident, Ex.A3-Postmortem Examination
Report discloses the cause of death is 'head injury'. Ex.A6-
Death summary issued by Krishnaveni Hospital at
Hayathnagar discloses that the deceased sustained deep
lacerated injury to right side of the head over the eye, right 9
side of head, right side of the shoulder and chest and ear
and nose were bleeding and multiple fracture of right
frontal bone, multiple ribs fracture of right side and the
deceased succumbed to the said injuries on 14.09.2013.
Therefore, there is no dispute regarding the accident and
the fatal injuries sustained by the deceased in the accident.
The Police after thorough investigation filed charge sheet
against the rider of Hero Honda Motorcycle bearing No.AP
24 AH 2829. However, the learned Tribunal merely relied
on the delay occurred in filing FIR and dismiss the claim
application.
19. It is pertinent to state that rule of evidence to
prove charges in a criminal trial, cannot be used while
dealing with an application filed under Section 166 of the
Motor Vehicle Act, which is a summary in nature and it is
beneficiary legislation. Admittedly, immediately after
accident the deceased was shifted to hospital for treatment
and has been struggling for life. Therefore, it is obvious for
the family members to provide immediate treatment rather
than giving complaint to the Police. Therefore, this Court
is of the considered opinion that the Tribunal has erred in 10
dismissing the claim application merely on the ground of
delay in FIR without considering the said aspect.
20. In view of the above discussion, the dismissal
Order dated 31.07.2017 passed in Motor Vehicle Original
Petition No.890 of 2013 by the learned Tribunal is liable to
be set aside.
21. Now coming to the quantum of compensation,
as per claimants the deceased used to work as Electrician
and used to attend agriculture work and earning
Rs.10,000/- per month. However, the petitioners have
not filed any documentary proof and neither
examined any person to prove the monthly income
of the deceased. Hence, considering the avocation
of the deceased, this Court is inclined to fix the
annual income of the deceased at Rs.6,000/-
(Rs.6,000x12) which comes to Rs.72,000/-. In view
of the decision of the Honourable Apex Court in National
Insurance Company Limited Vs. Pranay Sethi and
others 1 40% towards future prospects can duly be added
1 2017 ACJ 2700 11
thereto. Thus, the annual income of the deceased comes to
Rs.1,00,800/- (Rs.72,000/- + Rs.28,800/- being 40%
towards future prospects). Since there are three
dependents, after deducting 1/3rd (Rs.33,600/-) 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.67,200/-.
22. As seen from the evidence, the deceased was 35
years at the time of fatal accident. Therefore, as per the
decision of the Honourable Apex Court in Smt. Sarla
Varma (supra), the appropriate multiplier is '14'. Thus,
applying the multiplier '14' to the annual loss of
dependency, which is already arrived at Rs.67,200/-, the
total loss of dependency comes to Rs.09,40,800/-
(Rs.67,200/- x 14). In addition to that, the petitioners are
entitled to Rs.70,000/- under the conventional heads. The
petitioners are also entitled for the medical expenses of
Rs.2,85,400/-. Thus, in all, the petitioners are entitled to
compensation of Rs.12,96,200/-.
2 2009 (6) SCC 121 12
23. Accordingly, this Motor Accident Civil
Miscellaneous Appeal is allowed setting aside the dismissal
Order dated 31.07.2017 passed in Motor Vehicle Original
Petition No.890 of 2013 by the learned Tribunal. An
amount of Rs.12,96,200/- (Rupees Twelve Lakhs Ninety
Six Thousand Two Hundred only) is granted towards
compensation to the appellants. 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 as both of them are jointly and severally liable.
On such deposit, the appellants-petitioners are permitted
to withdraw the entire amount. The compensation amount
shall be paid to the appellants-petitioners subject to
payment of deficit Court fee. There shall be no order as to
costs.
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As a sequel, the miscellaneous petitions, if any,
pending shall stand closed.
________________________________ JUSTICE M.G.PRIYADARSINI Date: 23-JAN-2024 KHRM 14
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THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No.412 of 2018
Date: 23-JAN-2024 KHRM
