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2020 DIGILAW 226 (AP)

Boppana Vasundhara Rani v. Y. Srinivas

2020-03-11

M.GANGA RAO

body2020
JUDGMENT: The appellants are the claimants filed this appeal against the order and decree dated 09.03.2006 in M.V.O.P.No.53 of 2004 passed by the Chairman, Motor Vehicles Accident Claims Tribunal cum VII Additional District Judge, Krishna at Vijayawada whereby the Tribunal dismissed the claim petition holding that the appellants failed to prove the rash and negligent driving of the offending vehicle. 2. The first appellant is wife and appellants 2 and 3 are sons of deceased Subba Rao. They filed claim petition stating that on 03.05.2003 when the deceased was proceeding towards Hyderabad in Honda City car bearing No. AP 16 AC 2112 being driven by him, when he reached near the bus stop of Enamguda village of NH9 road at about 00.30 hours on 04.05.2003 the second respondent who is the driver of the offending vehicle Auto Trolley bearing No. AP 20 TR 6636 was driven in a rash and negligent manner and dashed the deceased Honda City vehicle, due to the incident the deceased along with other occupants of the car sustained injuries. The Hieth Nagar police registered a case against the driver of the offending vehicle in Cr.No.163 of 2003 and also filed charge sheet. 3. The first respondent who is the owner of the offending vehicle filed counter stating that the deceased died in the accident on 04.05.2003 and the accident has occurred due to rash and negligent driving of the deceased only not by him. The appellants approached him for payment of compensation but he could not be able to pay said amount. 4. The third respondent Insurance Company also filed written statement denying the averments of the claim petition and he also denied the age of the deceased. The driver of the Auto Trolley bearing No. AP 20 TR 6636 had no valid driving licence at the time of the accident. Further averred that the deceased was driving the Honda City car bearing No. AP 16 AC 2112 in a rash and negligent manner which caused his death. Hence, the third respondent Insurance Company of offending vehicle is not liable to pay the compensation. Insurance company denied its liability to pay the compensation. 5. Further averred that the deceased was driving the Honda City car bearing No. AP 16 AC 2112 in a rash and negligent manner which caused his death. Hence, the third respondent Insurance Company of offending vehicle is not liable to pay the compensation. Insurance company denied its liability to pay the compensation. 5. Based on the above pleadings, the Tribunal framed the following issues for its consideration: (i) Whether the deceased Boppana Subba Rao died in a motor vehicle accident on 04.05.2003 due to the rash and negligent driving of second respondent’s driver of Auto Trolley bearing No. AP 20 TR 6636 as claimed? (ii) If so, what is the correct age and income of the deceased by the date of accident? (iii) Whether the petitioners are entitled to the compensation as prayed for? If so, from whom and what amount? (iv) To what relief? 6. During trial, the appellants in support of their claim had examined PWs.1 and 2 and got marked Exs.A1 to A11. The respondents neither oral nor documentary evidence was adduced. 7. The Tribunal considering the evidence on record held that the deceased died in the accident caused by the offending vehicle, but, however, held that mere death of the deceased could not be presumed that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle. The Tribunal having accepted the contentions of the third respondent Insurance Company that the police failed to prove that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle and they incurred medical expenses for the treatment of the deceased. As the deceased was died after prolonged treatment in Nizam Institute of Medical Sciences Hospital at Hyderabad but medical bills would not bear its signatures. The Tribunal denied the appellants claim for compensation of Rs.4,50,000/-on the ground that the appellants failed to prove that the accident occurred due to rash and negligent driving of the driver of the offending vehicle Auto Trolley bearing No. AP 20 TR 6636. The Tribunal further held that the appellants 2 and 3 are not dependants upon the deceased. The appellants failed to file the driving licence of late Subba Rao who died in the accident. 8. Ultimately the Tribunal dismissed the M.V.O.P.No.53 of 2004 against which the present appeal is filed by the claimants. The Tribunal further held that the appellants 2 and 3 are not dependants upon the deceased. The appellants failed to file the driving licence of late Subba Rao who died in the accident. 8. Ultimately the Tribunal dismissed the M.V.O.P.No.53 of 2004 against which the present appeal is filed by the claimants. In the facts and circumstances of the case, having heard the counsel for both the parties and perused the record, this Court found that the Tribunal grossly erred in dismissing the claim petition on the ground that the appellants failed to prove the rash and negligent driving of the driver of the offending vehicle auto trolley bearing No. AP 20 TR 6636 and the appellants 2 and 3 are not the dependents of the deceased and mere filing of the medical bills would not be accepted that the appellants incurred for medical expenses. The Tribunal has not considered evidence on record in its proper perspective. Exs.A-1 and A-4 and the evidence of DW.1 disclosed that the accident occurred due to rash and negligent driving of the driver of the offending vehicle Auto Trolley bearing No. AP 20 TR 6636 and in that accident, the deceased sustained injuries admitted in hospital thereafter while undergoing treatment he died in the hospital. In support of their claim the appellants filed Ex.A-10 bunch of medical bills. The evidence of PW.2, eye witness clearly shows that the accident occurred due to rash and negligent driving of the driver of the offending vehicle. But the third respondent Insurance Company had not produced any oral or documentary evidence to show that the driver of the offending vehicle is not at fault. Hence, in the absence of any contrary evidence on record to show that the accident occurred due to the fault of the deceased could not be accepted. The Tribunal having came to conclusion that the accident was occurred due to the rash and negligent driving of the driver of the offending vehicle Auto Trolley bearing No. AP 20 TR 6636 and the deceased died due to injuries sustained in the accident and also they produced the medical bills under Ex.A-10. The appellants filed Ex.A-11 pattadar passbook proving that the deceased was doing agriculture and used to earn nearly Rs.50,000/-per month and he was hale and healthy at the time of the accident and claimed compensation under various heads per annum Rs.4,50,000/-. The appellants filed Ex.A-11 pattadar passbook proving that the deceased was doing agriculture and used to earn nearly Rs.50,000/-per month and he was hale and healthy at the time of the accident and claimed compensation under various heads per annum Rs.4,50,000/-. On consideration of the evidence on record would show that due to rash and negligent driving of the driver of the offending vehicle Auto Trolley bearing No. AP 20 TR 6636 the accident was occurred and the deceased sustained injuries in the accident were not disputed by the third respondent. The second respondent driver of the vehicle has set exparte and the owner of the offending vehicle, first respondent has filed written statement admitting the occurrence of the accident and death of the deceased due to the accident. The Tribunal grossly erred in disbelieving the evidence of PW.2 coupled with Exs.A-1 to A-4, Ex.A-1 FIR and Ex.A-2 charge sheet filed by the police in the absence of any contrary evidence produced by the third respondent. The same could not be disbelieved. Hence this Court finds that the accident occurred due to rash and negligent driving of the offending vehicle Auto Trolley bearing No. AP 20 TR 6636 and in the accident the deceased sustained injuries and due to injuries he died in the hospital. The same was not disputed by the third respondent by adducing any evidence. The appellants also filed medical bills and also pattadar passbooks and their evidence shows that the deceased was doing agriculture on his lands and used to earn Rs.4,00,000/-per year. When the deceased was aged about 60 years and the agriculturists having lands and used to earn Rs.4,00,000/-per annum the Tribunal herein accepting the contention of the counsel for the third respondent Insurance Company that appellants 2 and 3 are not the dependents on the deceased. The first appellant is the wife of the deceased is aged about 55 years she is dependent on the income of the deceased. 9. With regard to the quantum of compensation, the first appellant, wife of the deceased was examined as PW.1, she was aged about 55 years, the age of the deceased was 60 years, as per Ex.A-11/pattadar passbook, the appellants claimed that the deceased used to earn Rs.4,00,000/-per annum by doing agriculture and spend Rs.50,000/-for the deceased treatment in the NIMS Superspeciality Hospital, while undergoing treatment the deceased was expired. The appellants filed Ex.A-10 bunch of medical bills. Considering the evidence of PW.1 and evidence on record, Exs.A-10 and A-11, the annual income of deceased could be taken as Rs.60,000/-by taking Rs.5,000/-per month, as the lands are fertile lands, after deducting Rs.20,000/-towards 1/3rd of his income towards personal expenses, the loss of dependency could be arrived at Rs.40,000/-per annum, the same could be multiplied with appropriate multiplier 9 as the deceased was aged 60 years at the time of accident, as per Sarla Verma and other vs. Delhi Transport Corporation and another, 2009 (6) SCC 121 , the total loss of dependency, due to the sudden demise of the deceased could arrived at Rs.3,60,000/-(Rs.40,000/-x9) in addition to that the first appellant in entitled for Rs.70,000/-under conventional heads such as Rs.15,000/-for transportation and funeral expenses, Rs.15,000/-for loss of estate and Rs.40,000/-towards consortium as per National Insurance Company Limited vs. Pranay Sethi and others, 2017 ACJ 2700 . 10. In all, the first appellant is entitled for just compensation of Rs.4,30,000/-along with interest at 7.5% per annum, from the date of filing of the petition till realization of the amount. The third respondent Insurance Company and the first respondent are jointly and severally liable to pay the compensation to the first appellant. Further, the respondents 1 and 3 are directed to pay the entire compensation of Rs.4,30,000/-along with interest and proportionate costs to the appellants within two months from the date of receipt of a copy of this order, otherwise, the first appellant is at liberty to recover the same as per law. 11. Accordingly, the appeal is partly allowed as indicated above. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.