Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 309 (AP)

Syed Nawabjan v. Santhinikethan Trust

2020-05-01

C.PRAVEEN KUMAR

body2020
ORDER : 1. The present Appeal is filed by the Claimants under Section 173 of the Motor Vehicles Act, challenging the Order, dated 18.05.2007, passed in O.P. No. 39 of 2005 by the learned Principal Motor Accident Claims Tribunal (District Judge, Nellore), wherein, the application filed by the Petitioners under Section 166 of the Motor Vehicles Act, seeking compensation of Rs. 5,00,000/- due to death of Syed Ahamad Basha [the ‘deceased’] was dismissed. 2. The averments, in the claim petition, are as under:- (i) The Claimant No. 1 and 2 are said to be patents of the deceased, while, Claimant No. 3 to 5 are sister and brothers of deceased. The 1st Respondent is the owner and the 2nd Respondent is the insurer of the offending vehicle. (ii) According to Claimants, the deceased was working as a Goldsmith under a Gold Merchant in Nellore and earning Rs. 200/- per day. It is said that, on 01.09.2004 at about 12.30 PM, when the deceased was lying in-front of the R.R. Channel near D.S.R. Government Headquarters Hospital, Nellore, a Van bearing No. AP-31/W-8218 [vehicle] driven by its driver in a rash and negligent manner at high speed, hit the deceased and ran over his legs. The deceased was aged about 25 years and he died while undergoing treatment in the hospital. (iii) The 1st Respondent remained ex-parte, while 2nd Respondent filed counter denying the age, avocation and income of the deceased and also the relationship of the Appellants with the deceased. 3. On the basis of the above pleadings, the Tribunal framed the following Issues:- (i) Whether the accident occurred out of the use of the motor vehicle bearing Registration No. AP-31/W-8218 of respondent No. 1? (ii) Whether the petitioners are entitled to compensation? If so, to what amount and from which of the respondents? (iii) To what relief? 4. In support of its case, the Appellants examined PW-1 to PW-3 and got marked Ex.A1 to Ex.A7, while, no oral evidence was adduced on behalf of the Respondent No. 2 except marking Ex.B1 - a copy of the insurance policy. 5. After considering the evidence available on record, the Tribunal held that the material on record, more particularly, the inquest report discloses that the deceased was mentally unsound and was begging for his livelihood. 5. After considering the evidence available on record, the Tribunal held that the material on record, more particularly, the inquest report discloses that the deceased was mentally unsound and was begging for his livelihood. It was held that, the deceased was a beggar and mentally derailed and practically he was deserted by his parents and brothers, as none of the family members came at the time of inquest to identify the body and even the family members of the deceased did not claim the dead body, as the post-mortem report shows that, post-mortem examination was conducted on the body of an unidentified person. The court held that, there is a serious dispute with regard to the relationship between the deceased and the Appellants. In the absence of any evidence to show that the deceased was working under a Gold Merchant, the Trial Court disbelieved the evidence of PW-1 as it falsifies the documentary evidence and accordingly dismissed the O.P. Challenging the same, the present Appeal came to be filed. 6. The learned Counsel for the Appellants mainly submits that the Trial Court totally erred in dismissing the application. He submits that, the findings of the Trial Court that the deceased was a beggar is erroneous, since, the deceased had a passport, which was issued to him on 30.01.1990. The charge-sheet, which has been filed by the Police after due investigation clearly indicate that the deceased is son of PW-1. The allegation that none claimed the body is false as the charge-sheet indicate that the father [PW-1] claimed the body. 7. On the other hand, the learned Counsel appearing for the insurance company would contend that, if really the deceased was having passport and if really the Appellant No. 1 and 2 are his parents, no explanation is forthcoming as to why the deceased was living by begging and why none came after the death of the deceased to claim the body or at-least be present when the post-mortem examination was conducted. According to her, if really the passport is that of the deceased, there should not have been age discrepancy, since, the passport disclosed the age as ‘36’ years while in the claim petition and in the evidence, it is shown as if the deceased is aged about 25 years. In view of the above, it is pleaded that the finding of the Trial Court cannot be found fault with. In view of the above, it is pleaded that the finding of the Trial Court cannot be found fault with. 8. The point that arises for consideration is, whether the Trial Court was right in dismissing the application filed by the Appellants seeking compensation of Rs. 5,00,000/-? 9. In the Claim Petition, it is stated that, the deceased was aged about 25 years at the time of his death, which was on 01.09.2004. This Claim Petition was filed in the month of January 2005 showing the ages of the children of Appellant No. 1 and 2 as ‘19 years’ and ‘23 years’ and ‘21 years’. It has been the claim of the Appellants that the deceased was working under one Md. Areef, who is a gold merchant and earning Rs. 200/- per day and he was contributing the same to the family members. 10. The fact that the accident took place cannot be disputed, since, immediately after the accident, a report was given which lead to registration of a case in Cr. No. 124 of 2004 of South Traffic Police Station, Nellore, for the offence punishable under Section 304-A IPC. In the report, lodged at the earliest point of time by one Modiboina Haribabu, it was mentioned that, on 01.09.2004 at about 12.30 hours, the accused drove the van bearing no. AP-31/W-8218 in a rash and negligent manner at a high speed near R.R. Channel, near DSR Government Headquarters Hospital, Nellore, which ran over the legs of one Syed Ahamad Basha, while he was lying in front of R.R. Channel. Colum No. 15 of the inquest report shows that, on 01.09.2004 at about 12.30 PM, the vehicle bearing No. AP-31/W- 8218 ran over a person who was lying near R.R. Channel. None of the Appellants came forward as witnesses at the time of inquest. Neither they came as eye witnesses nor as blood relatives of the deceased. The post-mortem report which is placed on record as Ex.A2 show that it was performed on 02.09.2004 at 12.30 PM. The report indicates that the dead body remained unidentified till then. It is to be noted here that, in the charge-sheet filed by the police, the father of the deceased was shown as LW-4 and also as the person who identified the body as that of the deceased. 11. The report indicates that the dead body remained unidentified till then. It is to be noted here that, in the charge-sheet filed by the police, the father of the deceased was shown as LW-4 and also as the person who identified the body as that of the deceased. 11. Coming to the evidence adduced, PW-1 in his evidence, though not an eye witness to the incident speaks about the manner in which the incident took place. He in his evidence categorically deposed that, his son was aged about 25 years by the time of his death. He was hale and healthy working as Goldsmith under one Md. Arif Khan [PW-3] and earning Rs. 200/- per day. He was subjected to cross-examination at length, wherein, he states that, he is a Goldsmith and earns about Rs. 300/- to Rs. 400/- per day. He further admits that he has not filed any document about the relationship with the deceased. He also admits that he did not file any document showing the income of the deceased or his age. To a suggestion that the deceased was mentally derailed was denied by him. He also denied the suggestion that the incident occurred due to fault of the deceased. To a further suggestion that they are not related to the deceased was denied by him. 12. PW-2 is a businessman who was an eye witness to the incident. According to him, on 01.09.2004 at about 1.30 PM, while he was standing at a distance of 20 yards from the deceased in-front of R.R. Channel talking to another person, the offending vehicle driven by its driver in a rash and negligent manner, ran over the legs of the deceased who was lying on the road, due to which, the deceased sustained grievous injuries to both his feet. Immediately, he shifted the deceased to D.S.S. Headquarters Hospital, Nellore, for medical treatment. He set the law into motion by giving the report. 13. It is to be noted here that, this report was given by an independent person. In his evidence, PW-2 categorically states that, the deceased was lying on the road when the vehicle ran over his legs. At the same time, it is also to be noted here that, when it was suggested to PW-1 that deceased was a mentally retarded person, the same was denied. In his evidence, PW-2 categorically states that, the deceased was lying on the road when the vehicle ran over his legs. At the same time, it is also to be noted here that, when it was suggested to PW-1 that deceased was a mentally retarded person, the same was denied. Of course, no explanation is forthcoming from PW-1 as to why the deceased was lying at 12.30 PM at the scene of the accident, when, it is their case that he was not mentally retarded and he was normal and earning Rs. 200/- per day, but that by itself may not be a ground to reject the entire claim. 14. Coming to the evidence of PW-3, he in his evidence deposed that the deceased worked under him, since four years prior to his death, as Goldsmith and he used to pay Rs. 200/- per day towards salary. In the cross-examination, he admits that, he has not filed any document about employment of the deceased and the wages paid to him, except the certificate given on that day. Therefore, the finding of the Trial Court that there is doubt whether the deceased was really employed with PW-3 and that he being a Goldsmith with the same avocation as that of the 1st Appellant cannot be found fault with. 15. It is to be noted here that, as per the evidence of PW-2, which was referred to earlier, the incident occurred while the deceased was lying on the road. PW-2 is an independent person, who lodged the report with the police setting the law into motion. In the cross-examination, he admits that there was no fault of the deceased and the entire fault lies with the driver of the vehicle. Immediately, after the accident, the deceased was taken to the hospital and within no time he died and on the very next day, the post-mortem was conducted. The family members of the deceased may not be knowing about the incident or the information about the death, might not have reached them by the time the investigating agency conducted inquest and post-mortem. Probably for that reason, the names of family members were not reflected in the inquest report. But, one fact which is clear is that the accident took place due to rash and negligent driving of the vehicle by the driver. Probably for that reason, the names of family members were not reflected in the inquest report. But, one fact which is clear is that the accident took place due to rash and negligent driving of the vehicle by the driver. If really, the 1st Appellant or the family members have nothing to do with the deceased, then the police in their charge-sheet could not have shown the 1st Appellant ‘LW4’ as father of the deceased. 16. At this stage, the Counsel for the Appellants would submit that, if really the deceased was a beggar and has no means to live, then there is no explanation from the respondents with regard to the passport held by him. Though the date of birth of the deceased as mentioned in the passport was 10.03.1968; and passport was said to have been issued on 30.01.1990, which indicates the age of the deceased as per the averments in the passport as 36 years, but, no dispute is raised before the trial court with regard to the genuinity of the passport. 17. Admittedly, Ex.A7 passport was issued in favour of the deceased. The said passport was issued on 30.01.1990. It was not even suggested to PW-1 that the passport which was filed through him is a bogus one or is brought into existence for the purpose of this case. Therefore, this document which has been brought on record as Ex.A7 through PW-1 remained unchallenged. A perusal of the document would show that the deceased was the son of the Appellant Nos. 1 and 2. It is not doubt true that the age mentioned in the said passport and the age now mentioned are different, but, that by itself in my view cannot be a ground to discredit the contents of the passport, when its genuineness or otherwise is not disputed. That being the position, it can safely be held that the Claimants are the family members of the deceased, more so, when the charge-sheet show LW-4 [one of the claimant] as father of the deceased. 18. The compensation is usually based upon the loss of the claimants’ dependency or earning capacity of the deceased. The courts have time and again observed that the compensation to be awarded is measured by the nature, avocation or degree of injury or loss of income by the deceased. 19. 18. The compensation is usually based upon the loss of the claimants’ dependency or earning capacity of the deceased. The courts have time and again observed that the compensation to be awarded is measured by the nature, avocation or degree of injury or loss of income by the deceased. 19. As seen from the record, the claimants examined PW-3 to show that deceased was working under him and he was paying Rs. 200/- per day. But, there is no other evidence except the oral testimony of PW-3. Things would have been different had any documentary evidence been adduced to that effect. Further, if really he was employed under PW-3, then why was he lying on the road, in the afternoon. But fact remains that, he was aged about 25 years as per P.M. report and able bodied person. Though he might be working, but in the absence of any documentary evidence, the income of deceased at Rs. 200/- per day cannot be accepted. 20. Having regard to the facts in issue, the year of accident and the age of the deceased, his monthly income can be notionally fixed at Rs. 1,500/- per month and the annual income would be Rs. 18,000/-. Since, the deceased is a bachelor, 50% has to be deducted towards his personal expenditure. If that is deducted, his annual savings would be Rs. 9,000/- per annum. As per the decision of the Apex Court in National Insurance Company Ltd. vs. Pranay Sethi, 2017 (6) SC 170 the future prospects of the deceased can be fixed at 40% as the age of the deceased was below 40 years and the same comes to Rs. 3,600/-. Applying the same, the annual income of deceased works out to Rs. 12,600/- (i.e. Rs. 9,000/- + Rs. 3,600/-). Even taking the age of the deceased as ‘25’ years, as per post-mortem report, and applying the ratio laid down in Sarla Verma [supra] the suitable multiplier would be ‘17’ and the compensation would be Rs. 12,600/- x 17 = Rs. 2,14,200/-. 21. In view of the judgment in National Insurance Company Limited vs. Pranay Sethi and Others (supra) the claimants would be entitled to loss of estate and funeral expenses at the rate of Rs. 15,000/- under each of the count. 22. The total compensation i.e. Rs. 2,44,200/- (Rs. 2,14,200/- + Rs. 12,600/- x 17 = Rs. 2,14,200/-. 21. In view of the judgment in National Insurance Company Limited vs. Pranay Sethi and Others (supra) the claimants would be entitled to loss of estate and funeral expenses at the rate of Rs. 15,000/- under each of the count. 22. The total compensation i.e. Rs. 2,44,200/- (Rs. 2,14,200/- + Rs. 30,000/-) shall carry interest @ 6% per annum from the date of filing of the appeal before this court. 23. Accordingly the Appeal filed by the Appellants/Claimants is allowed setting aside the Order, dated 18.05.2007, passed in O.P. No. 39 of 2005, on the file of the learned Principal Motor Accidents Claims Tribunal [District Judge, Nellore] by passing an award of compensation to be paid by the 2nd Respondent Corporation of Rs. 2,44,200/- (Rupees Two Lakhs Forty Four Thousand and Two Hundred Only) with interest at 6% from the date of filing of the appeal till the date of realization, which shall be deposited by the 2nd Respondent after adjusting the amount if any already deposited or paid. On such deposit, the Claimants are permitted to withdraw the same. No order as to costs. 24. Consequently, miscellaneous petitions pending, if any, shall stand closed.