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2020 DIGILAW 128 (AP)

Meesala Mariyamma v. Kambampati Siva Prakash

2020-02-17

BATTU DEVANAND

body2020
JUDGMENT : Battu Devanand, J. This Appeal was filed by the Appellants/claimants under Section 173 of Motor Vehicles Act, against the decree and judgment, dated 18.10.2011 passed in M.V.O.P.No.1029 of 2009 on the file of the Motor Accidents Claims Tribunal-cum-District Judge, West Godavari, Eluru. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the Appeal. 2. The facts leading to filing of this appeal are:- The mother and father of the deceased person (who will be hereinafter referred to as "claimants") filed claim petition before the Motor Accidents Claims Tribunal-cum-District Judge, West Godavari, Eluru, claiming compensation of Rs.4,00,000/- for the death of their son by name M. Vara Prasad Babu (who will be hereinafter referred to as "deceased") in the motor accident which took place on 08.06.2009. As per the averments of the claim petition on 08.06.2009 at about 2-00 p.m., and near "S" turning on Undi-Ganapavaram Road in Undi Village, when deceased was proceeding as a coolie along with other coolies in the Lorry bearing Registration No.A.P.16 TU 5099 (which will be hereinafter referred to as "offending vehicle") belonging to 2nd respondent and insured with the 3rd respondent, the 1st respondent being its driver drove the same in rash and negligent manner, due to which, the deceased fell down and sustained severe head injury and other injuries that immediately after accident, the deceased was shifted to Bhimavaram Hospitals Limited, Bhimavaram where he succumbed to injuries on 10.06.2009. A case in Crime No.87 of 2009 was registered by Undi Police Station for the offence under Section 338 of Indian Penal Code against the 1st respondent initially and subsequently altered to Section 304-A of Indian Penal Code consequent upon the death of the deceased. The deceased was hale and healthy, aged 20 years and earning Rs.4,500/- per month as coolie and as such the claimants filed the claim application claiming compensation of Rs.4,00,000/- along with interest against the respondents. 3. The petition against the 1st respondent was dismissed and as far as the 2nd respondent is concerned, she remained exparte. The 3rd respondent, who is the insurer of the offending vehicle filed its written statement denying the material averments made by the claimants in their petition and resisted the claim of the claimants. 4. 3. The petition against the 1st respondent was dismissed and as far as the 2nd respondent is concerned, she remained exparte. The 3rd respondent, who is the insurer of the offending vehicle filed its written statement denying the material averments made by the claimants in their petition and resisted the claim of the claimants. 4. On behalf of the claimants the 2nd petitioner has been examined as PW.1 and they have examined one eye witness as PW.2 and marked Exhibits A.1 to A.5 in support of their claim before the Tribunal. The 3rd respondent has examined its Senior Assistant as R.W.1 and marked Exhibit B.1, a copy of the insurance policy relating to offending vehicle to substantiate its case. 5. The Tribunal after perusing the oral and documentary evidence on record and upon hearing the counsel passed decree and judgment awarding an amount of Rs.2,71,000/- along with interest @ 7.5% per annum against the 2nd respondent only. The Tribunal exonerated the 3rd respondent-insurance company from its liability in indemnifying the 2nd respondent holding that in the case on hand the deceased was not attached either to the offending vehicle or to the owner of the goods, which were being transported while at the time of accident. 6. Aggrieved by the judgment of the Tribunal the present appeal was filed by the claimants disputing the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal exonerating the 3rd respondent-insurance company. 7. Heard, Sri N. Srihari, learned counsel for the appellants/ claimants and Sri Byrapaneni Naresh, learned counsel for the 3rd respondent-insurance company. 8. It is contended by the learned counsel for the appellants-claimants that the deceased was a loading and unloading coolie on the lorry met with an accident on the fateful day, but, the Tribunal failed to consider that aspect and came to a conclusion that the deceased was not attached either to the offending vehicle or to the owner of the goods. He further contended that the Tribunal also committed an error by taking only Rs.3,000/- per month towards the income of the deceased instead of Rs.4,500/- per month. As per the contention of the learned counsel for the appellants-claimants the Tribunal gave a finding that to cover the risk of the deceased a separate premium is required. He further contended that the Tribunal also committed an error by taking only Rs.3,000/- per month towards the income of the deceased instead of Rs.4,500/- per month. As per the contention of the learned counsel for the appellants-claimants the Tribunal gave a finding that to cover the risk of the deceased a separate premium is required. But, in the present case there is no need to pay separate premium for the deceased as he was engaged as daily labour with the 2nd respondent-owner of the offending vehicle. 9. Learned counsel for the 3rd respondent-insurance company submitted that the Tribunal rightly gave finding to exonerate the insurance-company from the liability basing on the evidence available on record and compensation granted by the Tribunal is quite reasonable. 10. After hearing the counsel and after examining the material available on record, by virtue of the oral evidence of PW.2 and the documents marked under Exs.A.1 to A.5, there is no dispute with regard to the accident in question took place due to rash and negligent driving of the vehicle by 1st respondent resulting the death of the deceased. 11. Considering the submissions made by both side counsel and perusing the record available, it appears from the contents of the Ex.A.1-F.I.R. and Ex.A.5-charge sheet that on 08.06.2009 morning the deceased along with LWs.2 to 5 visited Undi for fish packing work and they loaded into lorry bearing No.A.P.16 TU 5099 and sat on the top of the said lorry and while traveling towards Ganapavaram from Undi, the driver of lorry drove his vehicle in a rash and negligent manner resulting which the deceased fallen from the top of the lorry and sustained severe head injury, blood oozing out from left ear, abrasions on both knees. It was witnessed by LWs.2 to 5 namely Meesala Syambabu, Pathgolusu Raju, Kondru Chinna, Saripalli Chinna. The LW.5 in the charge sheet i.e., Saripalli Chinna was examined as PW.2 in the claim petition as eye witness and as per his evidence on 08.06.2009 morning after loading fishing lorry bearing No.A.P.16 TU 5099 at Undi, he and other four coolies including the deceased boarded in the lorry to go to Ganapavaram. The LW.5 in the charge sheet i.e., Saripalli Chinna was examined as PW.2 in the claim petition as eye witness and as per his evidence on 08.06.2009 morning after loading fishing lorry bearing No.A.P.16 TU 5099 at Undi, he and other four coolies including the deceased boarded in the lorry to go to Ganapavaram. As per the contents of the F.I.R. and Charge sheet which were marked as Exs.A.1 and A.5 and the evidence of PW.2, it is categorically clear that the deceased was met with an accident while he was traveling on the lorry in the capacity of loading and unloading coolie. 12. In the case of P. Venkata Ramana Vs. Chintaguntla Kumari and others, (2010) 2 ALD 281, the Hon'ble High Court of Andhra Pradesh while dealing with an appeal filed by the owner of the vehicle therein held that; "the vehicle is a goods carriage, and admittedly the deceased was engaged as a coolie for unloading the vehicle. Therefore, the view taken by the Tribunal, as regards the liability of the 5th respondent, cannot be sustained in Law. It is held that the 5th respondent is jointly and severally liable to pay the compensation along with the appellant". 13. In the light of the oral and documentary evidence adduced by the claimants and as per the judgment of P. Venkata Ramana (1st supra), the deceased was traveling on the offending lorry on the fateful day as a coolie and as such the finding of the Tribunal that the deceased was not attached either to the offending vehicle or to the owner of the goods is unsustainable and the respondent Nos.2 and 3 are jointly and severally liable to pay the compensation to the claimants. 14. With regard to the quantum of compensation awarded by the Tribunal, the appellants-claimants claimed that the deceased was earning Rs.4,500/- per month by the date of accident, but the claimants have not placed any satisfactory material before the Tribunal with regard to their contention. 14. With regard to the quantum of compensation awarded by the Tribunal, the appellants-claimants claimed that the deceased was earning Rs.4,500/- per month by the date of accident, but the claimants have not placed any satisfactory material before the Tribunal with regard to their contention. The Tribunal rightly, in the absence of any proof or evidence about the income of the deceased has considered the earnings of the deceased @ Rs.3,000/- per month and since the deceased died as bachelor 50% of his earnings deducted towards his personal expenses, if he has alive and applied multiplier "14" following the decision of their Lordships of the Hon'ble Supreme Court of India in the case of Sarla Varma and others Vs. Delhi Transport Corporation and another, (2009) 3 ALD 83 and granted Rs.2,52,000/- towards loss of dependency, Rs.15,000/- towards loss of estate and Rs.4,000/- towards funeral expenses, making a total amount of Rs.2,71,000/- along with interest @ 7.5% per annum. 15. After considering the material available on record and contentions of both the parties, in my considered view the compensation awarded by the Tribunal under the head of "loss of dependency" @ Rs.2,52,000/- and Rs.15,000/- towards "loss of estate" are reasonable and it was awarded in accordance with the settled proposition of law. But the Tribunal awarded Rs.4,000/- only towards funeral expenses of the deceased. But as per the law laid down by the Hon'ble Supreme Court of India in the case of National Insurance Company Limited Vs. Pranay Sethi and others, (2017) ACJ 2700 the claimants are entitled for Rs.15,000/- towards funeral expenses of the deceased. As such, the claimants in the present case are entitled for Rs.15,000/- towards funeral expenses of the deceased. Accordingly, the total compensation awarded by the Tribunal is enhanced to Rs.2,82,000/- (Rupees two lakh and eight two thousand only). The 2nd respondent i.e., owner of the offending vehicle and the 3rd respondent i.e., the insurer of the offending vehicle are jointly and severally liable to pay compensation awarded to the claimants. The decree and judgment of the Tribunal is modified to that extent. With regard to the apportionment of the compensation, the order of the Tribunal is unaltered. 16. The 2nd respondent i.e., owner of the offending vehicle and the 3rd respondent i.e., the insurer of the offending vehicle are jointly and severally liable to pay compensation awarded to the claimants. The decree and judgment of the Tribunal is modified to that extent. With regard to the apportionment of the compensation, the order of the Tribunal is unaltered. 16. In the result, the appeal is partly allowed holding that the insured and insurer i.e., respondents 2 and 3 are jointly and severally liable to pay the compensation of Rs.2,82,000/- (Rupees two lakh and eighty two thousand only) with interest @ 7.5% per annum to the claimants from the date of date of the petition till date of realization. There is no order as to costs. As a sequel, miscellaneous petitions, if any, pending in this Appeal shall stand closed.