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2022 DIGILAW 814 (AP)

Kusuma Yadav v. Y. Yesu Babu

2022-08-29

V.SUJATHA

body2022
JUDGMENT V. Sujatha, J. - The appellants, who are claimants, filed this appeal aggrieved by the judgment and decree dated 23.03.2006 passed in M.V.O.P. No. 883 of 2002 by the Chairman, Motor Accident Claims Tribunal-cum-Principal District Judge, East Godavari at Rajahmundry, granting compensation of Rs. 15,000/- with proportionate costs and subsequent interest at 7.5% per annum on compensation amount from the date of the petition till realisation. For the sake of convenience, the parties are referred to as they are arrayed before the Tribunal. 2. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs. 10,00,000/- for the death of Suresh Yadav (hereinafter referred as 'the deceased') in a motor accident that occurred on 09.09.2001. On 09.09.2001, the deceased along with other CRPF Constables travelled in a van bearing No. AP-31-T-4796 being driven by the 1st respondent, in the course of their employment for investigation purposes and when the vehicle reached near Maredumilli area, suddenly landmine arranged by the Naxalites blasted, as a result of which, the deceased died on the spot. A case in Crime No. 28 of 2001 was registered by Maredumilli Police Station for the offences punishable under Sections 147, 148, 307 and 302/149 IPC and Sections 3 and 5 of the Explosive Substances Act and Section 25 and 27 of the Indian Arms Act against unknown P.W.G. extremists. As on the date of death, the deceased was earning Rs. 10,000/- per month. Hence, the claim petition. 3. While the respondents 1 and 3 remained ex parte, the 2nd respondent filed counter denying the material allegations in the petition and contending that the 2nd respondent is not a necessary or proper party to the claim and that the 2nd respondent is not liable to pay compensation. 4. 10,000/- per month. Hence, the claim petition. 3. While the respondents 1 and 3 remained ex parte, the 2nd respondent filed counter denying the material allegations in the petition and contending that the 2nd respondent is not a necessary or proper party to the claim and that the 2nd respondent is not liable to pay compensation. 4. The 4th respondent filed counter, contending that on 09.09.2001 at about 9.20 hours, 14 ORs and one Inspector under the command of Inspector Daya Ram along with one C.I., one S.I., 4 P.Cs of Addateegala Police Station left for combing operation duty to Maredumilli Police Station area on Elcher truck requisitioned by Civil Police i.e. C.I.F., Addateegala, due to non-availability of APSRTC bus and that over a culvert in the uphill road curve the vehicle was blasted causing death of the deceased on the spot and since the blast occurred due to failure of the Civil Police in not providing security to the truck, the Civil Police should have been impleaded and not the 4th respondent and that all the post death benefits of the deceased have already been paid to the 1st claimant in accordance with the departmental instructions and that the 4th respondent is not liable to pay compensation. 5. The 5th respondent also filed counter denying the material allegations in the petition and contended that the vehicle involved in the accident is a commercial goods vehicle, but not a passenger vehicle and that since the 1st respondent carried nearly 20 persons in the goods vehicle at the time of accident contrary to the terms and conditions of the insurance policy, the 5th respondent is not liable to pay any compensation. The 5th respondent disputed the validity of the requisition and contended that since the Government took the vehicle on requisition, the Government alone is liable to pay compensation, but not the 5th respondent. The 5th respondent also disputed the claim and the jurisdiction of the Tribunal to entertain the petition. 6. Based on the above pleadings, the Tribunal framed the following issues for trial. The 5th respondent also disputed the claim and the jurisdiction of the Tribunal to entertain the petition. 6. Based on the above pleadings, the Tribunal framed the following issues for trial. 1) Whether the deceased Suresh Yadav died in motor accident occurred on 09.09.2001 at 9.00 A.M. near Addateegala village while travelling in a Elcher van bearing No. AP-31-T-4796 in the course of the employment for investigation purpose driven by R.1 and the vehicle was suddenly land-mine blasted by the naxals, as a result of the said motor accident the deceased and 4 other constables died on the spot? 2) Whether the petitioners being the dependents of the deceased Suresh Yadav, are entitled to the compensation of Rs. 10,00,000/- with interest thereon from all the respondents with joint and several liability? 3) To what relief? 7. During the course of trial, on behalf of the claimants, PW. 1 was examined and Exs. A.1 and A.2 were marked. On the other hand, no oral evidence was let in, but, Ex. B.1 and B.2 were marked on behalf of the respondents. 8. Basing on oral and documentary evidence and the judgments placed before it, the Tribunal, having held that the death of the deceased was an accidental death occurred during the course of use of a motor vehicle, had concluded that since there was no contractual liability to pay compensation in an accident occasioned by terrorist activity and as the deceased was travelling as passenger in the goods vehicle, which is in violation of the terms and conditions of the insurance policy, the 5th respondent is not liable to pay compensation. Having considered the fact that the claimants have received death-cum-retirement benefits and lump sum compensation from the CRPF department on account of death in terrorist activity during the course of employment, the Tribunal held that in the absence of proper evidence for assessment of pecuniary loss, the claimants are not entitled for any pecuniary compensation under any heads. However, the Tribunal awarded Rs. 15,000/- towards non-pecuniary compensation payable from the 1st respondent with proportionate costs and interest at 7.5% p.a. from the date of petition till realisation. The claim against the respondents 2 to 5 was dismissed with costs. Challenging the award, the present appeal is filed. 9. However, the Tribunal awarded Rs. 15,000/- towards non-pecuniary compensation payable from the 1st respondent with proportionate costs and interest at 7.5% p.a. from the date of petition till realisation. The claim against the respondents 2 to 5 was dismissed with costs. Challenging the award, the present appeal is filed. 9. Heard Sri G. Ram Gopal, learned counsel for the appellants, and Sri N. Harinath, learned Assistant Solicitor General appearing on behalf of respondents 3 and 4. 10. Learned counsel for the appellants would submit that as the vehicle involved in the accident is under the control of the State as the vehicle is hired by them for the purpose of transportation of the police and CRPF personnel, the State is deemed to have been owner as defined under Section 2 (30) of the Motor Vehicles Act, 1988, and as such, the insurance company cannot avoid its liability on the ground that the vehicle insured is a goods vehicle. The Tribunal ought to have held that any terminal benefits or ex-gratia amount paid to the family of the deceased cannot be a ground to avoid or restrict the compensation payable under the Motor Vehicles Act and hence, the Tribunal ought to have granted compensation as claimed by making all the respondents liable to pay the same. 11. Having considered the submissions of the learned counsel and in the facts and circumstances of the case, the point that arises for consideration is: 'Whether in a case of this nature, the provisions of Motor Vehicles Act can be invoked?' 12. In support of his contention, the learned counsel for the appellants relied upon a judgment rendered by a Single Judge of composite High Court in MACMA. No. 282 of 2007, dated 05.08.2014, wherein it is held that the said issue came up for consideration before a Division Bench of this Court in Bhupati Prameela and others vs. Superintendent of Police, Vizianagaram and others 2010 (4) ALD 531 (DB), wherein in paras 54 and 55, this Court held as under: Admittedly, they were proceeding in the forest area in which, extremists were moving. In such a situation, the police higher officials should have been very cautious and careful. With their rich experience, they ought to have visualized that the extremists may keep a watch on the movements of the police and may use landmines to kill the police personnel. In such a situation, the police higher officials should have been very cautious and careful. With their rich experience, they ought to have visualized that the extremists may keep a watch on the movements of the police and may use landmines to kill the police personnel. The past experience shows that as and when police officers were careless and were going into forest area on vehicles, the extremists used landmines and blasted the vehicles. In the background of the events that occurred previously, the police higher officials ought not to have taken the bus into the forest area without due care and caution, ignoring the fact that the extremists may use landmines at any time in the forest area. Taking a bus with police personnel into the forest area where extremists are moving without proper care and precaution is nothing but a negligent act by the police higher officials. Normally, the practice is to do combing operation by walk or by motorcycles. The act of the superior police officers, without visualizing the consequences and asking the police personnel to travel by bus into the forest area, is nothing but, in our considered view, a 'negligent act'. We are of the view that the driver of the vehicle alone need not be rash and negligent in driving the vehicle, but if there is any negligent act on the part of the owner of the vehicle or on the part of the persons responsible for plying the vehicle, it also amounts to rash and negligent driving. For example, when a river is flowing and if the owner or conductor of a vehicle asks the driver of the vehicle to pass through the river and the vehicle capsized in the middle of the river, then the owner or the manager of the vehicle cannot escape from liability as it also amounts to rash and negligent driving of the vehicle. To be more clear, for example, if a road is under repair or a bridge is about to collapse, knowing very well the condition of the road or bridge, asking the driver to pass through such road or bridge also amounts to rash and negligent driving. The words 'rash and negligent driving' has to be given a wider meaning and not a narrow meaning. The words 'rash and negligent driving' has to be given a wider meaning and not a narrow meaning. It must cover all the circumstances wherein it appears that the persons responsible for taking the vehicle on public road are negligent and not careful in visualizing the consequences for any reason, then it must be held that they were negligent and the accident occurred out of use of the motor vehicle. Therefore, any negligent act on the part of the owner or on the part of the manager or on the part of the person responsible for the vehicle has also to be treated as rash and negligent driving'. (emphasis supplied) 13. The facts in the above case relates to landmines being used to kill the police personnel, who went into the forest for the purpose of investigating Crime No. 103 of 2002 of Machavaram Police Station. The senior police personnel and other staff in police department were aware about the extremist activity in the said region and the possibility of an attack. It was held that the act of the superior police officers and the administrators in permitting the police personnel to go into the forest area without visualizing the consequences appears to be a negligent act. In the instant case, the issue involved herein is similar and identical to that of the issue in the above case and accordingly, the ratio laid down therein is squarely applicable to the facts of the present case. In view of the same, this court is of the considered view that any negligent act on the part of the police personnel responsible for sending the deceased and others into the forest area has to be treated as a rash and negligent act on the part of the police official and also on the part of the person responsible for the accident. Hence, the point is answered in favour of the appellants-claimants. 14. Now, the point that arises for consideration is: 'Whether the ex-gratia and other benefits paid by the Government is liable for determining the quantum of compensation?' 15. As seen from the judgment in MACMA. Hence, the point is answered in favour of the appellants-claimants. 14. Now, the point that arises for consideration is: 'Whether the ex-gratia and other benefits paid by the Government is liable for determining the quantum of compensation?' 15. As seen from the judgment in MACMA. No. 282 of 2007 relied upon by the learned counsel appellants, this court found that a learned single Judge of this court considered the issue exhaustively, having observed that ex-gratia and other allowances paid to the legal heirs of the deceased cannot be taken into consideration for determining the compensation under the provisions of Motor Vehicle Act. While considering the said issue, the learned single Judge placed reliance on various judgments, which are necessary to be referred to answer the issue involved herein. 16. In New India Assurance Co. Ltd., rep. by its Deputy Manager, Secunderabad v. B. Lalitha (Smt.) and others 2010 (1) ALT 441 , wherein it is held as follows: 'insurer cannot disown the liability to pay compensation for the death of workman in accident during course of his employment on the ground that some ex gratia amount was paid directly to dependants of the deceased as it does not amount to compensation.' 17. In State of A.P. v. K. Pushpalatha 2006 (5) ALD 614 : 2006 (5) ALT 789 , a learned Judge of this Court held as under: '....payment of ex gratia by an employer or the Government and payment of amounts, viz., Provident Fund, Group Insurance of any amounts of such nature, which are contributed by the deceased because of his mandatory service conditions cannot be deducted from the compensation granted by the Tribunal under the Motor Vehicles Act, 1988.....' 18. In Mousumi Hansda v. Oriental Insurance Co. Ltd. (2001) ACC 540 (DB) (CAL.) : 2001 ACJ 1375 , it was held as under: 'where the wife of the deceased was appointed on compassionate grounds, no deductions are permissible on that ground.' 19. In National Insurance Co. Ltd. v. Renu Bala (2005) ACC 495 (DB) (P & H), it was held that family pension received by the claimants should not be deducted in determining dependency of claimants.' 20. In National Insurance Co. Ltd. v. Renu Bala (2005) ACC 495 (DB) (P & H), it was held that family pension received by the claimants should not be deducted in determining dependency of claimants.' 20. A learned single judgment of this Court also discussed the issue as to whether Provident Fund, Pension and Insurance receivable by the claimants come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' and liable for deduction. It was held that the said issue came up for consideration before the Hon'ble Supreme Court in Vimal Kanwar and others Vs. Kishore Dan and others 2013 ACJ 1441 , wherein the Hon'ble Supreme Court, after referring the judgment in Helen C. Rebello (Mrs.) and others v. Maharastra State Road Transport Corporation and another 1999 (1) SCC 90 , held that the Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a 'pecuniary advantage' receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction. 21. In the case on hand, the claimants herein are the wife, minor children and parents of the deceased Suresh Yadav. According to the evidence of PW. 1-the wife of the deceased, and the contents of the claim petition, the claimants received death-cum-retirement benefits of the deceased from the CRPF department. Having due regard to the ratio laid down in the judgments referred to supra and in the facts and circumstances of the case, this court is of the considered view that ex gratia and other benefits paid to the claimants cannot be taken into consideration for determining the compensation under the provisions of Motor Vehicles Act, since it does not amount to a compensation, for the reason that the same was paid directly to dependents of the deceased. Hence, the point is answered accordingly in favour of the appellants-claimants. 22. Coming to the quantum of compensation, it is to be seen that as per the evidence of PW. 1-the wife of the deceased, the deceased was aged about 28 years on the date of the accident. The contents of Ex. Hence, the point is answered accordingly in favour of the appellants-claimants. 22. Coming to the quantum of compensation, it is to be seen that as per the evidence of PW. 1-the wife of the deceased, the deceased was aged about 28 years on the date of the accident. The contents of Ex. A.2-postmortem report, gets corroboration from the evidence of PW 1 stating that as on the date of death, the deceased was aged about 28 years and was getting a salary of Rs. 10,000/- per month, as police constable in the police Department, which is not at all contradicted by the respondents. Therefore, in the absence of contrary evidence, this court is of the view that it would be just and reasonable, if the income of the deceased is taken at Rs. 5,000/- for determining the compensation. Hence, the income of the deceased is fixed at Rs. 5,000/- per month. However, as per Sarla Verma v. Delhi Transport Corporation Limited (2009) 6 SCC 121 , since the claimants being the wife, minor children and parents of the deceased are the dependents five in number, if 1/4th of the income is to be deducted from Rs. 5,000/-, it comes to Rs. 3,750/-. (5,000 X 1/4 = 3,750/-). Hence, the contribution of the deceased for the family could be Rs. 45,000/- (3,750 X 12). Further, as per the judgment in Annamkutty v. Manager, United India Insurance Co. Ltd. (2014) AAC 411 Kerala, the Hon'ble Supreme Court categorically held that while calculating the compensation, the age of the deceased should be the criteria for applying multiplier. As per the said judgment, if the age of the deceased is to be taken into consideration as 25 years for calculating the compensation, the appropriate multiplier as per Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121 would be 18'. Therefore, the compensation under the head of 'loss of dependency', would come to Rs. 8,10,000/-(3,750 X 12 X 18). In addition to that, as per the decision of the Hon'ble Supreme Court in National Insurance Company Limited v. Pranay Sethi and others 2017 (6) ALT 60 (SC), the claimants are also entitled for grant of Rs. 70,000/- under conventional heads such as Rs. 40,000/- towards loss of consortium; Rs. 15,000/- towards loss of estate and Rs. 15,000/- towards funeral expenses. 23. 70,000/- under conventional heads such as Rs. 40,000/- towards loss of consortium; Rs. 15,000/- towards loss of estate and Rs. 15,000/- towards funeral expenses. 23. For the sake of convenience and for easy understanding of the amounts now enhanced under different heads are as follows: 24. Accordingly, the appeal is allowed enhancing the compensation from Rs. 15,000/- to Rs. 8,80,000/- with proportionate costs and interest at 7.5% per annum from the date of petition till realization. The rest of the directions with regard to withdrawal of the compensation awarded remained as it is. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.