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2012 DIGILAW 429 (AP)

Bodige Padma v. Makula Shanker

2012-04-13

R.KANTHA RAO

body2012
JUDGMENT 1. Heard Sri A. Rajasekar Reddy, learned counsel appearing for the appellants and Sri G.S. Prakash Rao, learned counsel appearing for the third respondent/Insurance Company. 2. This appeal arises out of the order dated 18.12.2002 passed by the Motor Vehicle Accident Claims Tribunal-cum-I Additional District Judge, Karimnagar in O.P.No.188 of 1998. 3. The briefly stated facts of the case under appeal are these: Bodige Anjaneyulu, hereinafter called ‘the deceased’ worked as welder in KTK1 and 1-A incline of S.C.C. Ltd., in Bhupalapalli Mines and was getting wages of Rs.4,400/- per month. He was aged 33 years on the date of accident. On 01.02.1997 he was returning on Bajaj Kawasaki motorcycle bearing No. AP 36 C 7251 along with one Sanjeeva Rao. He was riding the motorcycle and Sanjeeva Rao was sitting on the pillion seat. They were returning from Chelpur to Bhupalapally. While they were on the way, the lorry bearing No. APK 7039 driven in a rash and negligent manner at high speed, dashed the motorcycle, as a result, the deceased and the pillion rider fell down and received severe injuries. The deceased died instantaneously, whereas the pillion rider survived. On the report lodged by the pillion rider, the police registered a case in Crime No.4 of 1997 under Section 304-A and 337 IPC. 4. The appellants, who are the widow, minor children and the parents of the deceased filed a claim petition under Section 166 of the Motor Vehicles Act before the Tribunal below seeking compensation of Rs.5,77,820/- under various heads. 5. On receiving summons from the Tribunal below, the respondents 1 to 3 appeared before the Tribunal and filed separate counters. 4. The appellants, who are the widow, minor children and the parents of the deceased filed a claim petition under Section 166 of the Motor Vehicles Act before the Tribunal below seeking compensation of Rs.5,77,820/- under various heads. 5. On receiving summons from the Tribunal below, the respondents 1 to 3 appeared before the Tribunal and filed separate counters. The respondents 1 and 2 contended in their counter that the accident occurred due to rash and negligent driving of the driver of the lorry bearing No. APK 7039 and that the lorry was insured with the third respondent at material time of accident under valid policy from 09.11.1996 to 08.11.1997 and if at all there is any liability, the same has to be fastened on the third respondent/insurance company The third respondent/insurance company also contended in its counter that the accident occurred due to rash and negligent driving of the lorry by the first respondent and the claimants have to establish that the deceased himself was not negligent at the time of accident and held valid driving licence and that the accident occurred due to rash and negligent driving of the driver of the lorry bearing No. APK 7039. The age, avocation, and income of the deceased etc. are denied. In the alternative it was contended that the accident occurred due to the negligence of both the drivers or negligence of any one, so the owner and insurer of the motorcycle are necessary parties to the claim petition. 6. In the course of enquiry before the learned Tribunal, PWs.1 to 4 were examined on behalf of the claimants and Exs.A.1 to A8 were marked. The salary certificate was marked as Ex.X.1 through PW.4, an employee in the Singareni Collieries Company Ltd. The respondents did not choose to examine any witness on their behalf. The third respondent, however, marked the copy of the policy of insurance as Ex.B.1 which shows that the offending vehicle was insured under a valid policy with the third respondent/insurance company on the date of accident. 7. PWs.2 and 3 are the witnesses examined by the claimants to prove that the accident occurred due to rash an negligent driving of the driver of the lorry bearing No. APK 7039. Admittedly, in this case, B. Sanjeeva Rao, the pillion rider, who lodged the first information report, did not furnish the number of the offending lorry to the police. PWs.2 and 3 are the witnesses examined by the claimants to prove that the accident occurred due to rash an negligent driving of the driver of the lorry bearing No. APK 7039. Admittedly, in this case, B. Sanjeeva Rao, the pillion rider, who lodged the first information report, did not furnish the number of the offending lorry to the police. Therefore, the first information report does not contain the number of the lorry which was involved in the accident. The police who conducted the investigation could be able to trace out the lorry involved in the accident during the course of their investigation and filed charge sheet ten months after registering the first information report. They arrested the first respondent/driver on 17.11.1997 i.e. about nine months after the accident. The learned Tribunal disbelieved the evidence of PWs.2 and 3, who spoke about the occurrence of the accident mainly on the grounds that there was delay of 10 months in filing the charge sheet and the police took nine months in arresting the first respondent/driver after the accident. The Tribunal considered both PWs.2 and 3 as witnesses planted for the purpose of claim petition by the appellants. The Tribunal also acceded to the contention urged by the respondent No.3/insurance company that the first and second respondents viz. the driver and owner of the vehicle colluded with the appellants. Having arrived at the said conclusion, the learned Tribunal dismissed the claim filed by the appellants in to without making any assessment of the compensation on the ground that the appellants failed to establish the involvement of the lorry bearing No. APK 7039 in the accident occurred on 01.02.1997. 8. The order of the Tribunal below is impugned in the appeal on the ground that the Tribunal rendered its decision ignoring the settled principles governing the burden of proof relating to the factum of accident in motor vehicle accident cases and on the ground that the decision of the Tribunal below is the result of improper appreciation of evidence on record and inadvertence to the pleadings of the parties. However, it was contended on behalf of the third respondent/insurance company that the learned Tribunal had furnished valid reasons for recording a finding that the appellants failed to establish the involvement of the lorry bearing No. APK 7039 in the accident and contended that the finding recorded by the Tribunal below needs no interference. However, it was contended on behalf of the third respondent/insurance company that the learned Tribunal had furnished valid reasons for recording a finding that the appellants failed to establish the involvement of the lorry bearing No. APK 7039 in the accident and contended that the finding recorded by the Tribunal below needs no interference. 9. One of the views expressed by the learned Tribunal below is that B. Sanjeeva Rao, who was the pillion rider at the time of accident was the proper person to be examined on behalf of the claimants, but they did not choose to examine him and due to non-examination of the said person, adverse inference has to be drawn against the case of the claimants. According to the learned Tribunal, if lorry bearing No. APK 7039 was involved in the accident, the proper person to speak about the same is B. Sanjeeva Rao and that the appellants ought not to have withheld him from being examined before the Tribunal below. As to this, it may be stated that as per the evidence of Jinna Surender Reddy, PW.2 who went near the place of accident soon after its occurrence, he found the deceased dead on receiving injuries and B. Sanjeeva Rao was struggling for life. PW.2, while he was travelling in a jeep along with other inmates went to Bhupalapalli, informed about the accident, took the medical officer to the place of occurrence and brought him to the Bhupalapalli Hospital belonging to their company. In the circumstances stated by PW.2, it was not at all possible for B. Sanjeeva Rao to note down the number of the lorry as he was seriously injured and was struggling for life. Therefore, absolutely, no purpose would be served for the claimants by examining Sanjeeva Rao, who did not note down the number of the lorry and his non-examination cannot be said to be fatal to the case of the claimants. The learned Tribunal it seems, went wrong in drawing adverse inference for non-examination of Sanjeeva Rao, the pillion rider as a witness for the claimants, PW.2 is an important witness to the accident and the learned Tribunal below brushed aside his evidence on the ground that he was also a planted witness like PW.3 and that he did not witness the actual occurrence of the accident. PW.2 stated in his evidence before the Tribunal that on 01.02.1997 at 9 PM while he was travelling in a jeep from Hanmakonda to Bhupalapalli, when the jeep was on the way to Bhupalapally, they saw lorry coming in the opposite direction in a rash and negligent manner at fast speed and after the said lorry crossed them, they heard big sound and thereafter they saw the motorcycle fell down and two persons lying on the left side of the road. According to him, on seeing the two persons, they stopped the jeep, went near them, found the two persons struggling for life. They proceeded in the same jeep to Bhupalapalli Hospital and brought the medical officer by which time, the deceased died and other person was struggling for life. His evidence further discloses that in the same jeep they shifted the deceased as well as the other person to the dispensary of Bhupalapalli. 10. PW.2 is a natural witness. He did not claim to have witnessed the entire incident and he spoke before the Tribunal as to what he really saw at that time. He did not try to exaggerate his version. But, the learned Tribunal disbelieved his version on the ground that he was a planted witness. 11. PW3 is a direct witness to the accident. He stated before the Tribunal that on the date of accident at about 9 PM while he was travelling in the lorry, the said lorry hit the motorcycle coming in the opposite direction. In spite of his request, the driver did not stop the lorry at the place of accident and proceeded up to Parkal, which is at a distance of 33 KMs from the place of accident that he noted down the number of the lorry as APK 7039. He also stated that one E. Rajaiah was also travelling in the said lorry. Fifteen days after the accident the police came to him and enquired about the accident and recorded his statement. According to this witness, after the lorry stopped at Parkal, he saw the number of the lorry and remembered it, though he did not note down the number anywhere. His version is that he did not inform about the accident to anybody due to fear and only when the police came and examined him, he revealed the number of the lorry and facts of the accident to them. His version is that he did not inform about the accident to anybody due to fear and only when the police came and examined him, he revealed the number of the lorry and facts of the accident to them. The version of this witness was also rejected by the learned Tribunal on the ground that he did not withstand the cross-examination by the learned counsel for the third respondent/insurance company on material points and thinking he also seems to have been planted by the claimants for the purpose of claiming compensation. The Tribunal is of the view that the police might have helped the claimants by planting the lorry bearing No. APK 7039 as the vehicle involved in the accident, so as to enable the claimants to claim compensation. 12. The crucial question to be determined in this appeal is whether the learned Tribunal, in the circumstances stated hereinabove is justified in recording a finding that PWs.2 and 3 are the planted witnesses by the claimants with the cooperation of the police and that the appellants failed to establish the fact that the accident was caused due to rash and negligent driving of the lorry bearing No. APK 7039. 13. Before arriving at a decision on this point, it is necessary to refer the following judgments of the Supreme Court which laid down certain guidelines in the matter of appreciation of evidence in proof of accident in the claim cases under Motor Vehicles Act. In RAVI v BADRINARAYAN AND OTHERS (1) 2011 (3) SCJ 428 = (2011)4 SCC 693 the Supreme Court held as follows: “It is well settled that delay in lodging the FIR cannot be a ground to doubt the claimant’s case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the police station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the police station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. Lodging of FIR certainly proves the factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. In cases of delay, the Courts are required to examine the evidence with a closer scrutiny and in doing so the contents of the FIR should also be scrutinized more carefully. If the court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. 14. In KUSUM LATA AND OTHERS v SATBIR AND OTHERS (2) 2011 (2) SCJ 639 = (2011)3 SCC 646 the Supreme Court held as follows: Both the Tribunal and the High Court have refused to accept the presence of Dheeraj Kumar as his name was not disclosed in the FIR by the brother of the victim. This Court is unable to appreciate the aforesaid approach of the Tribunal and the High Court. This Court is of the opinion that when a person is seeing that his brother, being knocked down by a speeding vehicle, was suffering in pain and was in need of immediate medical attention, that person is obviously under a traumatic condition. His first attempt will be to take his brother to a hospital or to a doctor. It is but natural for such a person not to be conscious of the presence of any person in the vicinity especially when Dheeraj did not stop at the spot after the accident and gave a chase to the offending vehicle. His first attempt will be to take his brother to a hospital or to a doctor. It is but natural for such a person not to be conscious of the presence of any person in the vicinity especially when Dheeraj did not stop at the spot after the accident and gave a chase to the offending vehicle. Under such mental strain if the brother of the victim forgot to take down the number of the offending vehicle it was also not unnatural. There is no reason why the Tribunal and the High Court would ignore the otherwise reliable evidence of Dheeraj Kumar. In fact, no cogent reason has been assigned either by the Tribunal or by the High Court for discarding the evidence of Dheeraj Kumar. The so-called reason that as the name of Dheeraj Kumar was not mentioned in the FIR, so it was not possible for Dheeraj Kumar to see the incident, is not a proper assessment of the fact-situation in this case. It is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind.” 15. In the case on hand, the accident occurred on 01.02.1997 and the report was lodged on the next day i.e. on 02.02.1997 the FIR is therefore, promptly lodged. The number of the offending vehicle, however, was not mentioned in the FIR since B. Sanjeeva Rao, who lodged the FIR was in a precarious condition and was not in a position to note down the number of the offending lorry. After registering the FIR, the police conducted investigation and in the course of investigation, from the version of PWs.2, 3 and others it appears, they could be able to trace out the lorry involved in the accident. Absolutely there was no basis for the Tribunal to record a finding that on account of delay in filing the charge sheet, the version of PWs.2 and 3 has to be doubted. The FIR need not contain all the details relating to the occurrence of the accident. The names of the eyewitnesses also need not be mentioned in the first information report. Further, a summary procedure was contemplated to evaluate the evidence of the witnesses in claim cases under Motor Vehicles Act. The FIR need not contain all the details relating to the occurrence of the accident. The names of the eyewitnesses also need not be mentioned in the first information report. Further, a summary procedure was contemplated to evaluate the evidence of the witnesses in claim cases under Motor Vehicles Act. The factum of accident need not be proved in claim cases by the standard of beyond reasonable doubt. 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. APK 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. APK 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 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 leaned Tribunal further overlooked the pleadings of the parties and permitted the counsel for the third respondent/insurance company to cross 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. APK 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. APK 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. APK 7039 was not at all involved in the accident since it was not pleaded by the third respondent in its written statement. 16. 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. APK 7039 was not at all involved in the accident since it was not pleaded by the third respondent in its written statement. 16. Further, when it is the case of the third respondent that the owner of the vehicle colluded with the appellant it was obligatory on the part of the third respondent to summon the owner of the vehicle as a witness and to cross examine him to the effect that he colluded with the appellant. But, the third respondent did not take any steps to summon the owner of the offending vehicle before the Tribunal. The learned Tribunal therefore, in my view committed error in permitting the counsel for the third respondent/insurance company to cross examine PWs.2 and 3 on the point that the lorry was not at all involved in the accident without there being any pleading to that effect in the written statement filed by the third respondent/insurance company. Further, the learned tribunal applied the standard of proof of beyond reasonable doubt in a claim case for compensation under the Motor Vehicles Act which is contrary to the settled legal principles and also the procedure to be adopted by the Tribunal in deciding the accident claim cases. 17. In fact, the learned Tribunal ought to have drawn adverse inference against the third respondent/insurance company for not pleading specifically in the written statement about non-involvement of the lorry bearing No. APK 7039. On the contrary, the learned Tribunal without any basis drew adverse inference against the appellants for not examining the pillion rider Sanjeeva Rao, who was in a critical condition and was not in a position to note down the number of the offending vehicle. The approach adopted by the learned Tribunal therefore, is disapproved and the finding recorded by the learned Tribunal that the appellants failed to prove that the accident was due to rash and negligent driving of the driver of the lorry bearing No. APK 7039 is set aside. The approach adopted by the learned Tribunal therefore, is disapproved and the finding recorded by the learned Tribunal that the appellants failed to prove that the accident was due to rash and negligent driving of the driver of the lorry bearing No. APK 7039 is set aside. It is held in this appeal that the appellants/claimants by cogent and reliable evidence established that the lorry bearing No. APK 7039 was involved in the accident and that the accident occurred due to rash and negligent driving of the driver of the lorry, who was driving the said vehicle at material point of time. Therefore, the second respondent owner of the vehicle and the third respondent/insurance company are held jointly and severally liable to pay compensation to the appellants/claimants. 18. The learned Tribunal having held that the appellants failed to establish that the accident was caused due to rash and negligent driving of the driver of the lorry bearing No. APK 7039 declined to make any assessment of compensation for which the appellants are entitled to. It causes unnecessary delay and undue hardship to the appellants/claimants if the matter is remitted back to the Tribunal only for the purpose of making assessment of compensation. Therefore, this Court takes up the job of computing compensation basing on the evidence available on record. 19. There is no dispute about the fact that the deceased was a welder in KTK1 and 1-A incline of S.C.C. Ltd., in Bhupalapalli Mines and his monthly wages were Rs.4,400/- on the date of accident. Since he was aged 33 years, there shall be addition of 50% of the actual salary towards future prospects as per the judgment in SARALA VARMA AND OTHERS v DELHI TRANSPORT CORPORATION AND ANOTHER 2009 ACJ 1298 , For the purpose of computing compensation, his monthly income therefore, shall be taken as Rs.4,400/- + Rs.2,200/- = Rs.6,600/-. His annual income comes to Rs.6,600/- x 12 =Rs.79,200/-. Since the dependants are five in number, 1/4th has to be deducted towards his personal and living expenditure which comes to Rs.19,800/-(Rs.79,200 x ¼). The contribution to the family comes to Rs.79,200/- minus 19,800/- = Rs.59,400/-. The appropriate multiplier relevant to the age of the deceased is ‘16’. To arrive at the loss of dependency, the said amount has to be capitalized with ‘16’, which comes to Rs.59,400/- x 16 = Rs.9,50,400/-. The contribution to the family comes to Rs.79,200/- minus 19,800/- = Rs.59,400/-. The appropriate multiplier relevant to the age of the deceased is ‘16’. To arrive at the loss of dependency, the said amount has to be capitalized with ‘16’, which comes to Rs.59,400/- x 16 = Rs.9,50,400/-. This apart, the first claimant, who is the widow of the deceased is entitled for an amount of Rs.10,000/-towards loss of consortium and the claimants are entitled for further sum of Rs.5,000/-towards funeral expenses and Rs.5,000/- towards loss of estate. In all, the appellants are therefore, entitled for compensation of Rs.9,70,400/-. It is settled law that this Court can grant compensation more than the amount claimed in the claim petition. Therefore, there is no legal impediment to grant compensation of Rs.9,70,400/-to the claimants. The compensation amount shall carry interest @ 7.5% per annum from the date of petition till the date of realisation. 20. Out of the compensation amount, the first appellant/claimant who is the widow of the deceased is entitled to receive Rs.4,00,000/-with proportionate interest and costs. The appellants 2 and 3 who are the minor children of the deceased are entitled to receive Rs.2,00,000/- each with proportionate interest and costs and they being minors, their amounts shall be invested in fixed deposits in a Nationalised Bank till they attain the age of majority. The appellants 4 and 5 who are parents of the deceased are entitled to receive Rs.85,200/- each with proportionate interest and costs. 21. Accordingly, the appeal is allowed with costs.