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2014 DIGILAW 334 (AP)

N. Narsimhulu v. G. Srinivasulu

2014-03-05

B.SIVA SANKARA RAO

body2014
JUDGMENT 1. The claimants, who are the parents of the deceased, Nallaganti Ramulu, aged about 22 years at the time of accident and claimed to be studying final year of B.Com, filed O.P.No.493 of 2004 on the file of the Motor Accident Claims Tribunal-cum-I Additional District Judge, Mahabubnagar (for short 'the Tribunal'), claiming compensation of Rs.3,00,000/- against the owner and insurer of auto bearing No.AP-22-U-8396. The Tribunal by order dated 20.11.2006 dismissed the O.P. Impugning the same, the claimants preferred this appeal with the contentions that the award of the Tribunal is contrary to law, weight of evidence and probabilities of the case; the Tribunal erred materially in not properly reading the evidence adduced; the Tribunal ought to have considered the evidence of P.W.2, who is an eyewitness to the occurrence; the Tribunal should have seen that the police, after conducting investigation, filed charge sheet against the driver of the auto; the Tribunal should have drawn attention to Ex.A.13 referral card dated 28.05.2004, whereby the injured (since died) was referred by Government Hospital, Mahabubnagar, to Osmania General Hospital, Hyderabad, mentioning that the injuries occurred due to road traffic accident, and thereby, sought for setting aside the dismissal award of the Tribunal and to allow the claim as prayed for. 2. Learned counsel for the appellants reiterated the said contentions. 3. The first respondent, who is the owner of the auto, remained ex parte before the Tribunal. Even served, he failed to put up appearance before this Court and hence, taken as heard to decide the matter on merits. 4. It is the contention of the learned Standing Counsel for the second respondent-insurer that the crime vehicle is planted taking advantage of the injuries sustained by the deceased, in collusion between the owner of the crime vehicle, that the claimants have wrongfully gained for the injuries sustained by the deceased somewhere, without involving the auto and that the Tribunal was right in so concluding supported by reasons and for this Court, while sitting in appeal, there is nothing to interfere and accordingly, sought for dismissal of the appeal. 5. Perused the material available on record. 6. The parties are being referred to as arrayed before the Tribunal. 7. The points that arise for consideration are: 1. 5. Perused the material available on record. 6. The parties are being referred to as arrayed before the Tribunal. 7. The points that arise for consideration are: 1. Whether the award of the Tribunal dismissing the claim is unsustainable and there is any evidence to show that the deceased sustained injuries on 28.05.2004 due to the accident caused by the driver of the auto of the first respondent bearing No.AP 22-U-8396, insured with the second respondent, if so, what compensation the claimants are entitled to 2. To what result 8. The report given by the mother of the deceased to the police setting the law in motion was dated 05.06.2004 with regard to the alleged occurrence took place on 28.05.2004. In the said report, it is stated that while her son (the deceased), was travelling in the auto bearing No.AP-22-U-8396 to go to Jadcherla and when the auto was going between Uddanpur and Vallur Villages, due to the rash and negligent driving of the driver of the auto, the auto turned turtle, as a result of which, the deceased sustained injuries and was shifted to Government Hospital, Mahabubnagar, in view of the seriousness of injuries, he was referred to Osmania General Hospital, Hyderabad, where he succumbed to the injuries on 12.06.2004 while undergoing treatment. Hence, prayed to take action against the driver of the auto. 9. There is a delay of seven days after the occurrence to the date of report. The important document in this regard is Ex.A.13, which is the referral card of Government Hospital, Mahabubnagar, wherein it is mentioned that the injured Ramulu S/o. Narsimhulu, aged about 22 years, R/o. Annasanipalli Village, Nawabpet, was admitted in the Hospital, attended to by Dr.A.Anand, with in-patient No.11490 on 28.05.2004 (date of accident). It further speaks that the deceased was admitted of history of Road Traffic Accident. The Government Hospital, Mahabubnagar, referred the deceased to Osmania General Hospital, Hyderabad, and the probabilities of reference was mentioned as NVS (Ortho) and page 3 of it speaks the clinical findings and there was a treatment noted at page 4 while referring. 10. It further speaks that the deceased was admitted of history of Road Traffic Accident. The Government Hospital, Mahabubnagar, referred the deceased to Osmania General Hospital, Hyderabad, and the probabilities of reference was mentioned as NVS (Ortho) and page 3 of it speaks the clinical findings and there was a treatment noted at page 4 while referring. 10. This factum borne out by the record clearly speaks that the deceased sustained injuries in the road traffic accident on 28.05.2004 and was admitted in Government Hospital, Mahabubnagar and in view of the serious condition, he was referred to Osmania General Hospital, Hyderabad, Ortho Wing, for better treatment and he was not in a condition to move. 11. Ex.A.13 is sufficient to say that the injuries sustained by the deceased were in road traffic accident and there is nothing to speak which vehicle involved in the accident and at whose fault the accident occurred. If it is to be read with Ex.A.1-F.I.R, seven days after the accident, the report was given by the mother of the deceased, based on which, the police registered a case in Crime No.99 of 2004 under Section 337 I.P.C. and after completion of investigation, the police filed Ex.A.4-charge sheet concluding that the accident was the result of rash and negligent driving of the driver of the auto of the first respondent. Ex.A.1-F.I.R speaks the name of the owner of the auto as G. Srinivasulu and driver as Shekar Reddy. 12. Once the police, after investigation filed charge sheet, pursuant to the report given by the parents of the deceased, who succumbed to the injuries, which probablises the involvement of the auto of the first respondent subject to further discussion whether it is really involved or outcome of collusion by the owner and driver of the auto. 13. P.W.1, who is the father of the deceased, is not an eyewitness to the occurrence but for deposed placing reliance on above documents. Ex.A.3-postmortem examination report speaks with reference to Ex.A.12, certificate of admission issued by the Government Hospital, Mahabubnagar. Ex.A.12 states that the deceased was admitted in Government Hospital, Mahabubngar, on 10.06.2004 at 6.45 p.m., and he breathed last on 12.06.2004 while undergoing treatment in the hospital with I.P.No.12592. Ex.A.3-postmortem examination report speaks with reference to Ex.A.12, certificate of admission issued by the Government Hospital, Mahabubnagar. Ex.A.12 states that the deceased was admitted in Government Hospital, Mahabubngar, on 10.06.2004 at 6.45 p.m., and he breathed last on 12.06.2004 while undergoing treatment in the hospital with I.P.No.12592. It corroborates the evidence of P.W.1 that after the deceased was admitted in Osmania General Hospital, Hyderabad, having been referred under Ex.A.13 of Government Hospital, Mahabubnagar, and treated in Osmania General Hospital, Hyderabad, and again having been discharged and went to another private hospital and thereafter, re-admitted in Government Hospital, Mahabubnagar. Ex.A.3-post mortem report also correlate therefrom of the post mortem examination conducted on the dead body of the deceased, who breathed last while undergoing treatment in the Hospital on 12.06.2004. P.W.2, Ramachandraiah, is the so called eye witness. His name is also there in the charge sheet as L.W.3, one of the injured. 14. It is important to note that it is difficult to guaze the human mind and each person reacts in his own way. The appreciation of evidence is with experience and in that perspective, more particularly, by taking judicial notice of the fact that the road traffic accidents will not occur with the knowledge or intimation in advance, as accidents are accidents and outcome suddenly. 15. No doubt, P.W.2 being an eyewitness to the occurrence and one of the passengers in the auto should have reported the occurrence immediately to the police and his conduct is one way doubting his credence. Being an ordinary prudent person, and having sustained injuries while travelling in the auto, he is supposed to go to the police station and lodge a report. However, that does not belie his evidence, more particularly, from the fact that a witness even not believed in part can be believed in part as it is the duty of the Court to separate the grain from the chaff and in this perspective, though P.W.2's evidence is not independent, but serves as a piece of corroboration to substantiate the recorded evidence supra, within the factual matrix to say that the deceased sustained injuries while travelling in the auto of the first respondent on the fateful day i.e., on 28.05.2004. Instead of so appreciating, the trial Court went beyond in saying that the conduct of P.W.2 is highly improbable to believe and his evidence thereby is totally incorrect and accordingly rejected his evidence. That is not the way for appreciation of evidence, more particularly, in the road traffic accident claims. 16. R.W.1, an employee of the second respondent-insurance company, would not speak anything more but for the delay in reporting Ex.A.1-F.I.R. Thereby, his evidence is no way of much credence to belie the evidence on record proved by preponderance of probability of the accident and involvement of the crime vehicle of the first respondent in coming to the conclusion as discussed supra. 17. Here, it is to be noticed that neither the insurer nor the claimants chose to examine the driver of the auto much less filed result of the criminal case, if any, pursuant to Ex.A.4-charge sheet. Thus, the finding of the Tribunal of the accident is not proved so also the involvement of the crime vehicle is unsustainable to set aside the same holding that, the deceased died while travelling in the crime auto, due to the rash and negligent driving of the driver of the said auto. 18. Coming to the quantum of compensation, the deceased was shown as final year degree student. There is nothing to say from Exs.A.9 to A.11, marks memos of 10th class, B.Com first year and B.Com second year, that the deceased was not highly progressive student but for average. There is no proof of income, much less other basis to assess the prospective earnings of the deceased from the accident dated 28.05.2004. In view of the expression of the Apex Court in Lata Wadhwa v. State of Bihar ( AIR 2001 SC 3218 ), the minimum income of the deceased can be taken at Rs.3,000/- per month. In view of the increase in the cost of living, the income of the deceased can be safely taken at Rs.3,200/-per month. If half of the same is deducted towards personal expenses of the deceased, the contribution to the claimants/parents comes to Rs.1,600/-per month and Rs.19,200/- per annum. For applying the appropriate multiplier, the mother's age, out of the dependant parents, is the criteria, as rightly taken by the Tribunal. If half of the same is deducted towards personal expenses of the deceased, the contribution to the claimants/parents comes to Rs.1,600/-per month and Rs.19,200/- per annum. For applying the appropriate multiplier, the mother's age, out of the dependant parents, is the criteria, as rightly taken by the Tribunal. Since the mother of the deceased is 46 years at the time of accident, as per the expression Apex Court in Sarla Verma v Delhi Transport Corporation ( 2009 ACJ 1298 ), the multiplier applicable is 13'. After applying the said multiplier, it comes to Rs.2,49,600/-. Apart from that, the claimants are entitled to Rs.25,000/- towards loss of estate, Rs.5000/- towards funeral expenses and Rs.12,600/-towards medical expenses and transport, since immediately after the accident, the deceased was shifted to Government Hospital, Mahabubnagar, from there to Osmania General Hospital, Hyderabad, from there to a private hospital at Hyderabad and from there again shifted to Government Hospital, Mahabubnagar, where he succumbed to the injuries on 12.06.2004. In all, the claimants are entitled to Rs.2,92,900/-, which is rounded off to Rs.3,00,000/-. 19. Coming to the liability of the insurer, the evidence of R.W.1 with reference to Ex.B.1-insurance policy and Ex.B.2-driving licence of the driver of the auto, shows that by the date of accident i.e., on 28.05.2004, the driver of the auto was not possessing valid driving licence and that the transport licence validity expired by 24.08.2003 and non-transport licence was valid till 05.10.2015. Further more, there is nothing to say the first respondent, who is the owner of the auto, knowing fully well that the driver of the auto was not having valid driving licence, allowed the driver with conscious knowledge and intentionally to drive the auto to say the said breach is so fundamental to exonerate the insurer. Thus, the insurance company cannot be exonerated under Section 168 r/w 149 of M.V Act; but for to say it is a fit case for pay and recovery direction vide decisions of the Apex Court in United India Insurance Co. Ltd. V. Lehru (JT-2003 Point No.1: (2) SC 595 = 2003 ACJ 611), Oriental Insurance Company Limited Vs. Nanjappan & Others (2004) 13 SCC 224 = 2004 - SAR (civil) 290), National Insurance Company Limited Vs. Ltd. V. Lehru (JT-2003 Point No.1: (2) SC 595 = 2003 ACJ 611), Oriental Insurance Company Limited Vs. Nanjappan & Others (2004) 13 SCC 224 = 2004 - SAR (civil) 290), National Insurance Company Limited Vs. Swaran Singh & Others ( (2004) 3 SCC 297 = 2004-ACJ-1), Kusumlatha and others V. Satbir and Others ( AIR 2011 SC 1234 = 2011 (2) SCJ 639) and S.Iyyappan Vs. United India Insurance Company (2013) 7 SCC 62 ). Accordingly, point No.1 is answered. Point No.2: 20. In the result, the appeal is allowed. The appellants/claimants are entitled to compensation of Rs.3,00,00/- with interest @ 7.5% per annum from the date of filing of the appeal i.e., on 02.02.2007 till the realization, with joint and several liability of the insurer and insured (respondents 1 and 2) to pay by the insurer and then to recover. The respondents shall deposit said amount within one month, failing which the claimants can execute and recover. It is made clear from the settled expressions of the Apex Court in Lehru (supra) & Nanjappan (supra) that the insurer is entitled, while depositing the amount payable, if not deposited or paid any amount so far to deposit the balance and to approach the Tribunal to direct the RTA concerned not to register any transfer of the crime vehicle and to seek for attachment of the crime vehicle or other property of the insured as an assurance for execution and recovery in the same proceedings or under revenue recovery as per the MV Act, 1988 and also ask the Tribunal not to disburse the deposited amount to claimants (but for to invest in a bank) till such attachment order is made. However, after the same, the Tribunal shall not withhold the amount of the claimants, if there is any necessity to permit for any withdrawal but for to invest the balance in fixed deposit in a nationalized bank. There is no order as to costs. 21. Consequently, other Miscellaneous Applications, if any, pending in this appeal shall stand closed.