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2008 DIGILAW 995 (AP)

APSRTC, Visakhapatnam v. Satti Vimalavathi

2008-11-20

G.BHAVANI PRASAD

body2008
JUDGMENT :- The A.P. State Road Transport Corporation, who is the second respondent in OP No.2007 of 1999 on the file of the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Visakhapatnam filed this appeal against the award dated 7.2.2002. 2. Satti Srinivasa Reddy is the husband of the first claimant and father of the second claimant in OP No.2007 of 1999, while the third respondent therein is the father of Srinivasa Reddy. Srinivasa Reddy was doing finance business under the name and style of Lakshmi Finance at Visakhapatnam and he was claimed to be earning Rs.6,500/- per month towards profits. On 27.5.1997, at about 11.00 a.m., Srinivasa Reddy and his uncle were proceeding on a scooter bearing Registration No.AP.31H 77, when the bus driven by the first respondent, rashly and negligently, without following the traffic rules, in a high speed, dashed against the scooter near Krishna Temple, Venkojipalem, Visakhapatnam. Both Srinivasa Reddy and his uncle died on the spot and the police registered Crime No.61 of 1997 against the bus driver. 3. The third respondent filed MOP No.181 of 1998 claiming a compensation of Rs.50,000/- under no fault liability. Hence the claimants herein claimed a compensation of Rs. 4,00,000/- from the first respondent driver and the second respondent Corporation. 4. The driver and father of Srinivasa Reddy remained exparte before the Tribunal, while the Corporation contested the claim contending that at the time of the accident, the bus was proceeding very slowly on the left side of the road, while the scooterist himself came in the opposite direction rashly and negligently and dashed against the bus, in spite of the bus driver blowing horn, and there was no rashness and negligence on the part of the first respondent and hence, the Corporation desired the petition to be dismissed. 5. The Tribunal framed issues on the responsibility for the accident, and the entitlement of the claimants to compensation and examined PWs.1 and 2 and RW1 and marked Exs.A1 to A3 and Exs.B1 to B3 during the course of enquiry. 6. The Tribunal rendered the impugned award firstly accepting the eyewitness account of PW2 corroborated by EX.A1 First Information Report and EX.A3 Motor Vehicle Inspector's Report and refused to accept the evidence of first respondent as RW1 notwithstanding his acquittal by the Criminal Court under EX.B3 judgment. 6. The Tribunal rendered the impugned award firstly accepting the eyewitness account of PW2 corroborated by EX.A1 First Information Report and EX.A3 Motor Vehicle Inspector's Report and refused to accept the evidence of first respondent as RW1 notwithstanding his acquittal by the Criminal Court under EX.B3 judgment. The Tribunal concluded that the driver of the bus was responsible to the accident due to the rash and negligent driving as can be deduced from the heavy damage to the scooter and fatal injuries to Srinivasa Reddy and his uncle, apart from the bus going in the wrong direction at the place of the accident. The Tribunal did not accept the claim of the claimants about the deceased earning Rs.6,000/- as a partner in Lakshmi Finance Company and in the absence of any documentary evidence it estimated the probable income of the deceased at Rs.60/- per day, which he would have earned even if he would have worked as labourer at the age of 23 years, which was treated as the age of the deceased as per EX.A2 post-mortem certificate. Out of the estimated monthly income of Rs. 1,800/per month, the Tribunal deducted 1I3rd towards his personal expenses and on an annual loss of dependency of Rs.14,400/the Tribunal applied a multiplier at 'IT to arrive at Rs.2,44,800/- towards loss of dependency. The Tribunal also awarded Rs.l5,000/- each towards loss of consortium and loss of estate and Rs.2,OOO/- towards funeral expenses. On the said sum of Rs.2,76,800/-, the Tribunal awarded interest at 9% per annum and proportionate costs. The Tribunal directed apportionment of compensation between the petitioners 1 and 2 and the third respondent and gave further directions about the disbursement of the compensation. 7. The Corporation challenged the award questioning the acceptance of the evidence of PW2 disbelieving RW1 and the minimum that could have been done is to share the responsibility for the accident due to the contributory negligence of both the bus driver and the scooterist. The fixation of monthly income at Rs.l,800/- per month and accepting the age of the deceased as 23' years were also disputed and hence, the Corporation desired the award to be set aside. 8. The fixation of monthly income at Rs.l,800/- per month and accepting the age of the deceased as 23' years were also disputed and hence, the Corporation desired the award to be set aside. 8. Sri K. Madhava Reddy, learned Standing Counsel for the Corporation/ appellant, Smt. N.P. Anjana Devi, learned Counsel for respondents 1 and 2 and Sri Jayanthi SC Sekhar, learned Counsel for 4th respondent are heard, while the driver of the bus imp-leaded as the third respondent herein is unrepresented before this Court. 9. The points that arise for consideration in this appeal are again the responsibility for the accident and the entitlement of the claimants to just compensation. 10. It is seen from Ex.B3 judgment of the Criminal Court acquitting the bus driver that the Criminal Court took adverse note of non-examination of any eye-witness by the prosecution, in spite of giving a reasonable opportunity, and as the evidence before it is only that of the Investigating Officers as PWs.1 and 2 who were not eye-witnesses, the Criminal Court concluded that there was no evidence to connect the accused with the accident. While the standard of proof before the Criminal Court is one of proof beyond reasonable doubt, detern1ination of this claim, which is civil in nature, is based on broad human probabilities. Even the judgment Ex.B3 shows that during investigation of the crime, the statutory investigating agency had prepared an observation report of the scene of offence and conducted an inquest before independent mediators. The prosecution also obtained a report from the Motor Vehicles Inspector about the accident being not due to any mechanical defects of the bus. It was the conclusion of the police after thorough investigation that the first respondent driver was guilty of an offence punishable under Section 304-A IPC. Ex.B2 observation report of the scene of offence also shows that the scooter was totally damaged while no damage was claimed to have been noted to the bus. If an accident had occurred in the manner claimed by RW1, the features noted at the scene of offence would have been different as observed by the Tribunal. Ex.B2 observation report of the scene of offence also shows that the scooter was totally damaged while no damage was claimed to have been noted to the bus. If an accident had occurred in the manner claimed by RW1, the features noted at the scene of offence would have been different as observed by the Tribunal. In fact, RW1 while claiming that he had blown horn to attract the attention of the scooterist, admitted that he was proceeding on the right side of the road due to one of the double roads being blocked and it is unnatural to presume that in spite of the mighty bus coming opposite to the scooter and the bus driver blowing horn, the scooterist or the pillion rider would not have noticed the bus. The claim of RW1 that the scooterist himself could not control the scooter and hit the bus is uncorroborated by any other evidence and the evidence of RW1 is not disinterested. RW1 admitted that he did not produce the complaint allegedly given by him to the police and also admitted that he did not produce even the SR in which the details of the accident were allegedly noted, apart from the first respondent remaining ex parte in the claim petition leaving the allegations of the claimants uncontroverted. The eye-witness account of PW2 cannot be suspected for any strong reasons, more so, when it is inconsonance with the earliest version in the EX.A 1 First Inforn1ation Report and the contents of EX.B3 judgment. PW2 was positive that the bus came on the wrong side at high speed and dashed against the scooter. PW2 was not alleged to be in any way interested in the deceased or the claimants and the Tribunal preferring his evidence than that of RWI cannot be considered as erroneous. Under the circumstances, for the various reasons given by the Tribunal, it rightly concluded that the accident occurred due to the rash and negligent driving of the bus by is driver. There is no strong ground to deviate from the said conclusion. 11. Coming to the quantum of compensation, the claim that the deceased was aged 23 years is corroborated by EX.A2 post-mortem certificate, which was accepted in the absence of any other evidence. There is no strong ground to deviate from the said conclusion. 11. Coming to the quantum of compensation, the claim that the deceased was aged 23 years is corroborated by EX.A2 post-mortem certificate, which was accepted in the absence of any other evidence. The further claim that he was a partner in Lakshmi Finance Company is not denied as a matter of fact and during the cross-examination of PW1 only the quantum of income claimed by her was questioned, but not the occupation of the deceased itself. The Tribunal still did not take the statement of PW1 at its fact value and assessed the probable income of the deceased at the barest minimum on the probable wages which a labourer would have earned per day. It deducted 1/3rd out of even such estimated income towards personal expenses of the deceased and applied the multiplier, which is in fact less than warranted under multiplier table of Bhagawan Das v. Mohd. Arif, 1987 (2) AL T 137. Obviously, the multiplier was adopted by the Tribunal with reference to the Schedule-II. The assessment of loss of dependency by the Tribunal therefore cannot be faulted as excessive and sums awarded towards loss of consortium, loss of estate and funeral expenses are at the accepted scale. Even the interest awarded is only at 9% p.a. by the Tribunal and, therefore, there appear no strong reasons to interfere with the award in any manner. 12. In the result, the appeal is dismissed without costs.