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2022 DIGILAW 1053 (AP)

Valsareddi Vijaya v. V. Kalam Azad

2022-10-18

T.MALLIKARJUNA RAO

body2022
JUDGMENT: 1. Aggrieved by the order dated 28.02.2012 in MVOP No.275 of 2010 passed by the Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool (for short 'the Tribunal'), the 2nd respondent - the New India Assurance Company Ltd., represented by Divisional Manager, HDCT Complex, R.S.Road, Kurnool, has preferred this appeal questioning the quantum of compensation awarded by Tribunal. 2. The parties will be referred to as arrayed in the MV OP for convenience. 3. The claimant had filed an application before the Tribunal under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of her son - K.Chandrasekhar (hereinafter referred to as 'the deceased'), who died in a motor vehicle accident that occurred on 0403.2009 at about 9.00 PM when the deceased was sleeping on the platform of Sreenivasa Agro Products Mill, Vattichurukuru Village, the driver of the lorry bearing No. AP 07 T 2655 (hereinafter referred to as 'the offending vehicle) drove the same at high speed rashly and negligently and went upon the deceased. The head of the deceased was run over by the vehicle. He died on the spot. The deceased was aged about 12 years and was hale and healthy. He was the only son of the claimant. Subsequently, the father of the deceased was added as 3rd respondent as he did not cooperate with the claimant, who is his wife. 4. The 1st respondent, the owner of the offending vehicle, has remained exparte. 5. The 2nd respondent/insurance company has filed its counter, contending that the claim of the petitioner is highly excessive and exorbitant; there is also no proof that the deceased was aged about 12 years; the claimant shall prove that the accident occurred due to the rash and negligent driving of offending vehicle's driver. 6. Based on the pleadings, the Tribunal has formulated relevant issues. On behalf of the claimants, P.W.1 was examined, and Exs.A., 1 to A.4, were marked. Let in no oral evidence on behalf of the respondents, and Ex.B.1 marked by consent. After evaluating the evidence on record, the Tribunal held that the accident occurred due to rash and negligent driving of the offending vehicle's driver. The Tribunal granted a compensation amount of Rs.2,20,000/- with proportionate interest and costs @ 9% per annum from the date of petition till the date of realization. 7. After evaluating the evidence on record, the Tribunal held that the accident occurred due to rash and negligent driving of the offending vehicle's driver. The Tribunal granted a compensation amount of Rs.2,20,000/- with proportionate interest and costs @ 9% per annum from the date of petition till the date of realization. 7. The learned counsel for the 2nd respondent/ appellant has contended that the Tribunal erred in not deducting 50% of the deceased's income towards personal expenditure. It also erred in awarding interest at 9% per annum, which is excessive and on the higher side. 8. Learned counsel for the respondent supported the findings and observations of the Tribunal. 9. Now the points for determination are, 1) Whether the compensation amount fixed by the Tribunal is just and reasonable? 2) Whether is there contributory negligence on the part of the deceased? POINTS: 10. To prove the accident, the claimant has examined herself as P.W.1; she narrated the manner of the accident in her evidence. She also relied on Ex.A.1-certified copy of FIR and Ex.A.2 certified copy of the charge sheet. 11. The same is not disputed by the respondents that the deceased died due to injuries sustained in the accident. Ex.A.3-certified copy of inquest report and Ex.A.4-certified copy of post-mortem examination report also support the claimant's case in this regard. 12. The respondents place no evidence to show that the contents of the charge sheet are incorrect. In K.Rajani and others, V. M.Satyanarayana Goud and others, 2015 ACJ 797 , the erstwhile High Court of Andhra Pradesh observed that: “when the insurance company knew that the police investigation was false, they must also challenge the charge sheet in appropriate proceedings. If at all the findings of the police are found to be incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false". 13. In Bheemla Devi V. Himachal Road Transport Corporation, 2009 ACJ 1725 (SC) the Hon'ble Apex Court observed as follows: “It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond a reasonable doubt could not have been applied". 14. The claimants are merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond a reasonable doubt could not have been applied". 14. Nothing on record suggests that the Investigating Officer filed a charge sheet against the driver of the crime lorry without conducting a proper investigation; it is also difficult to hold that the Police Officer fabricated a case. In a proceeding under the M.V.Act, where the procedure is a summary procedure, there is no need to go by strict rules of pleading or evidence. The document having some probative value, the genuineness of which is not in doubt, can be looked into by the Tribunal for getting preponderance of probable versions. As such, it is by now well settled that even FIR or Police Papers, when made part of a claim petition, can be looked into for giving a finding in respect of happening of the accident. The preponderance of probabilities is the touchstone for concluding rashness and negligence, as well as the accident's mode and manner of happening. 15. The reading of the documents placed before the Tribunal clearly shows that the accident occurred due to rash and negligent driving of the driver of the crime lorry. When it contends that the accident happened due to the deceased's negligence. It is to place necessary evidence before the Tribunal based on which the Tribunal expected to give its conclusion. The Tribunal has accepted the claimants' case regarding the manner of the accident and also accepted the observations made by the Investigating Officer in the charge sheet making the driver of the crime lorry responsible for the accident. The charge sheet's content also supports the case of claimant's case regarding the manner of the accident. No material was placed by the appellant/2nd respondent to show that the accident occurred due to the negligence of the deceased, as contended. 16. The reading of the documents placed before the Tribunal clearly shows that the accident occurred due to rash and negligent driving of the driver of the crime lorry. For the reasons best known to the 2nd respondent, it has not examined the driver of the crime lorry, who was supposed to know the manner of the accident. No explanation is forthcoming. Regarding the aspect of negligence also, no evidence is produced before the Court by the 2nd respondent. For the reasons best known to the 2nd respondent, it has not examined the driver of the crime lorry, who was supposed to know the manner of the accident. No explanation is forthcoming. Regarding the aspect of negligence also, no evidence is produced before the Court by the 2nd respondent. The 2nd respondent has not placed any material before Court to show how it has got a source of information about the accident. 17. This Court is of the view that it must prove either negligence or contributory negligence like any other fact; there is no different standard for proving negligence or contributory negligence. But they cannot be decided on suspicion or surprise. The pleas taken in the counter will remain as pleas as they are not substantiated by acceptable, relevant and legal evidence. To prove contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident occurred due to the deceased's negligence. In the absence of cogent evidence to prove the plea of contributory negligence, this Court can not apply the common law doctrine in the present case. Although there are no details of contributory negligence in the counter, and no evidence is also put forth except alleging a stray sentence in the counter. The manner in which the accident happened leaves no doubt that the driver of the offending bus was solely negligent in causing said accident. While granting relief under the act, the courts are not to be bound by mere technicalities but would adopt a liberal approach by giving the law a wider construction and meaning that would favour the victims. 18. Upon careful reading of the material on record, this Court is of the view that the Tribunal has correctly appreciated the evidence on record and the finding of the Tribunal that the accident occurred due to rash and negligent driving of the offending vehicle holds good. 19. Regarding the quantum of compensation, it is the claimant's case that the deceased was aged about 12 years at the time of the accident. To prove the claimant's age, the date of birth certificate is not placed. However, the claimants relied on the post-mortem examination report-Ex.A.4 and inquest report-Ex.A.3 to show the claimant's age. The said documents show that the age of the deceased was 12 years at the time of the accident. To prove the claimant's age, the date of birth certificate is not placed. However, the claimants relied on the post-mortem examination report-Ex.A.4 and inquest report-Ex.A.3 to show the claimant's age. The said documents show that the age of the deceased was 12 years at the time of the accident. As the deceased was non earning person at the date of the accident, the Tribunal has considered the national income as Rs.15,000/-per annum. The Tribunal observed that there is no need to deduct any amount towards the personal expenses of the deceased as he was aged about 12 years. As already observed, the appellant's main grievance is that the Tribunal erred in not deducting 50% of the deceased's income towards personal expenditure. 20. At this juncture, it is relevant to refer to the observations made by the Hon'ble Apex Court in Rajendra Singh & Ors. vs National Insurance Co.Ltd. & Ors, 2020 ACJ 2211 . As seen from the judgment, in the said case, Tribunal assessed the notional income of the minor child. However, the Tribunal deducted 50% towards personal expenditure with a multiplier of 15. Without disturbing the said finding, The Hon'ble Apex Court observed, in paragraph 13, held that the income of the minor child is incapable of precise fixation and observed further that they find no reason to interfere with the assessed notional income of the second deceased. Considering the grant of the future prospectus for the deceased child aged about ten years, in R.K.Malik and others vs Kiran Paul, 2009 ACJ 1924 , the Hon'ble Apex Court held, in paragraph 31, as follows: “31. A forceful submission has been made by the learned Counsels appearing for the claimants-appellants that both the Tribunal and the High Court failed to consider the claims of the appellants concerning the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below. On perusal of the evidence on record, we find merit in such submission that the Courts below have overlooked that aspect of the matter while granting compensation. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, it must also grant compensation with regard to the prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation." 21. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, it must also grant compensation with regard to the prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation." 21. In National Insurance Company Limited v. Pranay Sethi and others, (2017) 16 SCC 680 it was observed that where the deceased was a bachelor and the claimants are the parents; the deduction follows a different principle. In regard to a bachelor's, normally, 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Further observed that taking into consideration the cumulative factors, namely, the passage of time, the changing society, escalation of price, the change in the price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects. 22. By following the principles laid down by the Hon'ble Apex Court, this Court considers that 50% of the income is to be deducted towards personal expenses and 40% of the income to be added towards future prospectus. On deduction of 50% of the annual income towards personal expenses of the deceased, an amount of Rs.7,500/- can be considered, and 40% of the annual income under the future head prospects arrived at Rs.3,000/-, in total, this Court, thought the annual income at Rs.10,500/- (Rs.7,500/- +3,000/-). The Tribunal has applied the multiplier 15' to assess the loss of dependency, which need not be disturbed, and it would come to Rs.10,500/- x 15 = 1,57,500/-. The claimant is also entitled to compensation under the head funeral expenses and parental consortium. The claimant is also entitled to an amount of Rs.16,500/-towards funeral expenses and an amount of Rs.54,000/-towards Parental consortium. In all, the claimants are entitled to an amount of Rs.2,28,000/-. 23. The learned counsel for the 2nd respondent mainly contended that the Tribunal had granted interest @ 9% per annum, and the rate of interest granted by the Tribunal is excessive, and it is to be scaled down to 7.5% p.a. 24. The learned counsel for the 2nd respondent has not placed any evidence before the Court to show the prevailing interest rate as of the accident date. In United India Insurance Co. The learned counsel for the 2nd respondent has not placed any evidence before the Court to show the prevailing interest rate as of the accident date. In United India Insurance Co. Ltd. vs Satinder Kaur, 2020 ACJ 2131 the Hon'ble Apex Court held that the Tribunal allowed 9% p.a. from filing the claim petition. However, the High Court reduced the interest rate to 7.5% p.a. The Hon'ble Apex Court has observed that it is appropriate to direct the interest @ 12% p.a. to be paid on the total compensation awarded. 25. By following the principle laid down by the Apex Court, this Court is of the view that granting a rate of interest depends on the facts and circumstances of the case. The Tribunal, at its discretion, granted 9% p.a. after considering the entire material on record; this Court is of the view that the interest need not be scaled down, as the Tribunal has appropriately exercised its discretion. Hence, I do not find any substance or merit in the appeal; the appeal is devoid of merits and deserves to be dismissed. 26. Accordingly, the appeal is dismissed. No costs. 27. Miscellaneous petitions, if any, pending in this appeal shall stand closed.