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2013 DIGILAW 41 (AP)

Moinuddin v. Md. Kareemuddin

2013-01-24

R.KANTHA RAO

body2013
JUDGMENT This civil miscellaneous appeal is filed by the claimants against the award and decree dated 24.8.2001 passed by the Motor Accident Claims Tribunal (Additional District Judge), Medak at Sangareddy, in OP No. 388 of 1999. 2. Heard Sri K. Raji Reddy, the learned Counsel appearing for the appellants claimants and Sri E. Venugopal Reddy, the learned Standing Counsel for the second respondent-United India Insurance Company Limited. No representation on behalf of Respondent No. 1. 3. The first appellant is the father, second appellant is the mother and the appellants 3 and 4 are the brothers of the deceased, Mr. Mohammed Zakir. The deceased was a cleaner on the lorry bearing No. ABT-3899. The deceased, while he was under the employment of the respondent No. 1 owner of the lorry bearing No. ABT-3899, as a cleaner, died in a motor vehicle accident on 7.7.1999 allegedly on account of the rash and negligent driving of the driver of the tipper lorry bearing No. AET-7777. According to the claimants, the lorry bearing No. ABT-3899 stopped on the way due to some mechanical failure, the deceased and others were pushing the vehicle, by which time, the lorry bearing No. AET-7777 driven in a rash and negligent manner at high speed came from behind and dashed the deceased. Due to which the deceased received severe head injury and died on the spot. At the time of his death, the deceased was 18 years. The claimants filed a claim petition under Section 166 of the Motor Vehicles Act, seeking compensation of Rs. 2,00,000=00 under various heads. They stated before the Claims Tribunal that the deceased by working as a cleaner was getting a salary of Rs. 2000=00 per month and a further sum of Rs. 40/- per day as batta. However, on behalf of the claimants, PW 1 who is no other than the father of the deceased was examined. He was not an eyewitness to the accident. The claimants did not examine any eyewitness to the accident. They only marked Ex. A1 FIR and Ex. A2 inquest report. 40/- per day as batta. However, on behalf of the claimants, PW 1 who is no other than the father of the deceased was examined. He was not an eyewitness to the accident. The claimants did not examine any eyewitness to the accident. They only marked Ex. A1 FIR and Ex. A2 inquest report. The learned Claims Tribunal took the view that since the claimants did not examine any eyewitness to the accident, they failed to substantiate their version that the accident was the result of rash and negligent driving of the driver of the tipper bearing No. AET-7777 and arrived at a decision that the appellants 1 and 2, who are the parents of the deceased are entitled for compensation of Rs. 50,000=00 under no fault liability as envisaged under Section 140 of the Motor Vehicles Act and accordingly granted compensation of Rs. 50,000=00 to both of them and dismissed the rest of the claim. 4. Feeling aggrieved, the claimants preferred the present civil miscellaneous appeal contending that since there is no dispute about the fact that the deceased died while he was in between the lorry bearing No. ABT-3899 and the tipper bearing No. AET-7777 and in view of the fact that the claimants specifically attributed the rash and negligent driving to the driver of the tipper AET-7777, the burden is on the owner and insurer of the said tipper AET-7777 to establish that the accident was not due to rash and negligent driving of the driver of the said tipper, on failure by them to discharge the said burden, the learned Claims Tribunal ought to have drawn inference against them and should have held that the owner of the said vehicle, who is respondent No. 1 herein and the insurer of the said vehicle, the second respondent are jointly and severally liable to pay the compensation. They further contended that the learned Claims Tribunal went wrong in awarding compensation under Section 140 of the Motor Vehicles Act and should have granted compensation on fault liability under Section 166 of the Motor Vehicles Act. Thus, they seek to set aside the award passed by the learned Claims Tribunal. 5. They further contended that the learned Claims Tribunal went wrong in awarding compensation under Section 140 of the Motor Vehicles Act and should have granted compensation on fault liability under Section 166 of the Motor Vehicles Act. Thus, they seek to set aside the award passed by the learned Claims Tribunal. 5. On the other hand, it is the contention of the second respondent Insurance Company that the burden is on the claimants to establish that the accident was due to the rash and negligent driving of the driver of the tipper bearing No. AET-7777. On their failure to discharge the said burden, the Claims Tribunal below is justified in granting compensation under no fault liability and the finding of the Claims Tribunal does not call for interference in the present appeal. 6. Sri K. Raji Reddy, the learned Counsel appearing for the appellants claimants would submit that having regard to the facts and circumstances leading to the occurrence of the accident, the learned Claims Tribunal ought to have applied the doctrine of res ipsa loquitur on failure by the owner and insurer to discharge the burden that the accident was not due to rash and negligent driving of the driver of the tipper bearing No. AET-7777 the Tribunal ought to have recorded a finding that from the nature of the accident and the circumstances in which the accident had taken place it was nothing but due to the rash and negligent driving of the driver of the tipper bearing No. AET-7777. 7. In support of his contention, he relied on the judgment in United India Insurance Company Limited v. Sarita Rani Dhaka and others, 1995 ACJ 895 , wherein the Division Bench of Allahabad High Court in a case where there is collision between an oil tanker and car in which the owner, driver of car sustained fatal injuries and the claimants produced evidence in support of their claim held as follows: "Claimants examined witnesses and produced documents in support of their claim. Neither appellant nor any other opposite party adduced any evidence. Driver of the oil tanker was the best witness to explain the circumstances under which the truck collided with the car. No explanation was offered as to why he was not examined. Neither appellant nor any other opposite party adduced any evidence. Driver of the oil tanker was the best witness to explain the circumstances under which the truck collided with the car. No explanation was offered as to why he was not examined. Apart from drawing adverse inference in case driver would have been examined, his negligence in driving the oil tanker would have been proved from the nature of accident, as it is clear that the driver of the oil tanker was negligent in driving the vehicle resulting in the accident by applying the principle of res ipsa loquitur. Therefore, the, owner is vicariously liable for negligence of the driver and insurer which has covered the risk of the owner in respect of the vehicle has rightly been directed to pay compensation to the claimants, who are dependants of the deceased." 8. In support of his contention, he nextly relied on the judgment in Pushpabai Purshottam Udeshi and others v. M/s. Ranjit Ginning and Pressing Company and another, 1977 ACJ 343, wherein the Supreme Court held as follows: "The normal rule is that it is for the plaintiff to prove negligence but as in some "cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident “speaks for itself” or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence." 9. In support of his contention; he further relied on the judgment of the Madhya Pradesh High Court in Mangilal v. Parasram and others, 1970 ACJ 86 , wherein the Full Bench of Madhya Pradesh High Court held as follows : "There can be no doubt that in an action for negligence, the legal burden of proof rests on the claimant. In support of his contention; he further relied on the judgment of the Madhya Pradesh High Court in Mangilal v. Parasram and others, 1970 ACJ 86 , wherein the Full Bench of Madhya Pradesh High Court held as follows : "There can be no doubt that in an action for negligence, the legal burden of proof rests on the claimant. But, barring exceptional cases, it may not be possible for the claimant to know what precisely led to the accident. It may peculiarly be within the means of knowledge of the driver or the owner. This hardship to the claimant can be avoided by the application of the maxim “res ipsa loquitur” which is not a principle of liability but a rule of evidence. The principle is that there are certain happenings, which do not occur normally, unless there is negligence. Therefore, in the case of such happenings the claimant is entitled to rely, as evidence of negligence, upon the mere happening of such accident." "Having regard to the local conditions prevailing in this country when res ipsa loquitur is attracted, it should be given as wide an amplitude and as long rope as possible in its application to the case of a motor accident. The defendant cannot escape liability merely by preferring hypothetical explanations, however, plausible of the accident." 10. In the instant case, the version of the claimants is that the lorry bearing No. 3899 in which the deceased was working as a cleaner stopped due to mechanical failure and when the deceased and some others were pushing the vehicle the deceased was caught between the lorry bearing No. ABT-3899 and tipper bearing No. AET-7777 on account of the rash and negligent driving of the driver of the tipper, who failed to observe the position of the deceased. PW 1, the father of the deceased did not witness the incident. He only was examined on behalf of the claimants before the Tribunal. No eyewitness to the accident was examined. According to the claimants, as no eyewitness was available, they could not be able to examine the eyewitness before the Tribunal. PW 1, the father of the deceased did not witness the incident. He only was examined on behalf of the claimants before the Tribunal. No eyewitness to the accident was examined. According to the claimants, as no eyewitness was available, they could not be able to examine the eyewitness before the Tribunal. From the version of the claimants, it is evident that the lorry in which the deceased was working was in a stationary position as it stopped due to mechanical failure and the accident was caused due to rash and negligent driving of the tipper bearing No. AET-7777 as the driver drove it on the reverse, side without observing the position of the deceased. The First Information Report in this case was not lodged by any eye-witness to the accident, it was lodged by the Village Administrative Officer stating therein that the deceased died in between the two tippers viz. bearing Nos. ABT-3899 and AET-7777. 11. Ex.A1, certified copy of the First Information Report reveals the said fact. In Ex.A2, inquest report also it was recited in the column relating to cause of death that the deceased died as the tipper, which was intended to start, the lorry bearing No. ABT-3899, stopped due to mechanical repair, was driven in a negligent manner by its driver without observing the position of the deceased. Thus, in this case, the cause of the accident is exclusively in the knowledge of the driver of the tipper bearing No. AET-7777. The claimants in this case proved the accident by bringing on record Ex.A1, FIR and Ex.A2, inquest report as evidence on their behalf. The cause of actual accident was not within their exclusive knowledge. 12. In the normal course, the burden to prove the cause of accident lies on the claimants, but when the claimants or the persons known to them do not know the cause of accident, they can explain the circumstances which resulted in the accident and in such an event the doctrine of res ipsa loquitur comes to their risk which lays down the principle that the accident speaks for itself. In the instant case, since the lorry in which the deceased working was in a stationary position, the accident must have been caused due to the movement of the tipper bearing No. AET-7777 which was driven by its driver. In the instant case, since the lorry in which the deceased working was in a stationary position, the accident must have been caused due to the movement of the tipper bearing No. AET-7777 which was driven by its driver. The manner in which the accident took place, therefore, is exclusively within the knowledge of the driver of the tipper bearing No. AET-7777. Under these circumstances, since the claimants proved the accident, the burden to prove as to how the accident had taken place is on the owner or insurer of the tipper bearing No. AET-7777. They did not adduce any evidence in this case. They ought to have examined the driver of the tipper bearing No. AET-7777 to explain the circumstances under which the accident took place. For non-examination of the driver of the tipper bearing No. AET-7777, an adverse inference against the insured and the insurer can be drawn to the effect that had the driver of the offending vehicle been examined he would have stated that the accident took place as he drove the vehicle without observing the position of the deceased in between the two vehicles. Therefore, in this case, the finding recorded by the learned Tribunal that the claimants failed to prove that the accident was caused due to rash and negligent driving of the driver of the tipper bearing No. AET-7777 needs to be set aside. 13. Relying on the aforesaid judgments cited by the learned Counsel for the appellants/ claimants, I hold that on account of the failure by the insured and the insurer to adduce any evidence and taking into account, the circumstances in which the accident took place and by applying doctrine of res ipsa loquitur that the accident was caused due to rash and negligent driving of the driver of the tipper. Consequently, I further hold that the owner and insurer of the lorry i.e., respondents 1 and 2 are jointly and severally liable to pay compensation to the claimants. 14. The learned Tribunal did not compute the compensation as required in the case filed under Section 166 of the Motor Vehicles Act since it granted compensation under no fault liability provided under Section 140 of the Motor Vehicles Act. Therefore, now in this appeal, the compensation has to be computed basing on the evidence available on record. 15. The deceased was aged 18 years. He was cleaner by profession. Therefore, now in this appeal, the compensation has to be computed basing on the evidence available on record. 15. The deceased was aged 18 years. He was cleaner by profession. The claimants stated that the deceased was getting salary of Rs. 2,000/- per month and batta of Rs. 40/- per day, when he was on duty. As it appears that the said statement relating to the income of the deceased is genuinely made by the claimants, considering the age and avocation of the deceased, I fix the income of the deceased for the purpose of computing compensation at Rs. 3,000/- per month. The deceased was unmarried. The appellants 3 and 4 are his brothers, they being majors, they cannot be considered as dependants on the deceased. The appellants 1 and 2, father and mother of the deceased are dependants, who are entitled for compensation on account of his death. For selecting the multiplier for the purpose of computing the compensation, the age of the mother of the deceased has to be taken into consideration. The mother of the deceased was aged 48 years on the date of his death. The multiplier relevant to her age as per the judgment in Sarala Verma and others v. Delhi Transport Corporation and another, 2009 (3) ALD 83 (SC) = 2009 ACJ 1298 , is ‘13’. The annual income of the deceased is Rs. 3,000/- x 12 = Rs. 36,000/-. From this, 1/3rd has to be deducted towards his personal and living expenses of the deceased. To arrive at loss of dependency, the above amount has to be capitalized with multiplier ‘13’, which comes to Rs. 24,000/- x 13 = Rs. 3,12,000/-. This apart, the appellants 1 and 2/claimants 1 and 2, parents are entitled for an amount of Rs. 5,000/- towards loss of estate and Rs. 5,000/- towards funeral expenses. In all, they are entitled for compensation of Rs. 3,22,000/-. The compensation amount shall carry interest @ 7.5% per annum from the date of petition till the date of realisation. 16. For the foregoing reasons, the award dated 24.8.2001 passed by the Motor Accident Claims Tribunal-cum-Additional District Judge, Medak at Sangareddy is set aside. The appellants 1 and 2, parents of the deceased are granted compensation of Rs. 3,22,000/- together with interest @ 7.5% per annum from the date of petition till the date of realization. The appeal is allowed. 16. For the foregoing reasons, the award dated 24.8.2001 passed by the Motor Accident Claims Tribunal-cum-Additional District Judge, Medak at Sangareddy is set aside. The appellants 1 and 2, parents of the deceased are granted compensation of Rs. 3,22,000/- together with interest @ 7.5% per annum from the date of petition till the date of realization. The appeal is allowed. There shall be no order as to costs.