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2022 DIGILAW 999 (AP)

Regional Manager v. Kolusu Urmila

2022-10-12

B.V.L.N.CHAKRAVARTHI

body2022
JUDGMENT : B.V.L.N. CHAKRAVARTHI, J. 1. This appeal is preferred by the 2nd respondent/Andhra Pradesh State Road Transport Corporation challenging the award dated 27.09.2019 passed in M.V.O.P. No. 790/2017 on the file of Motor Accidents Claims Tribunal-cum-II Addl. District Judge, West Godavari District at Eluru, wherein the Tribunal while partly allowing the petition, awarded compensation of Rs. 7,44,000/- with interest @ 9% p.a. from the date of petition, till the date of realisation for the death of Kolusu Harish @ Harish Kumar, son of the claimants/petitioners. 2. For the sake of convenience, the parties are arrayed as parties in the lower Court. 3. As seen from the record, originally the petitioners filed an application U/s. 166 r/w. 455 of Motor Vehicles Act, 1988 (for brevity “the Act”) claiming compensation of Rs. 10,00,000/- on account of death of their son Kolusu Harish @ Harish Kumar in a motor vehicle accident occurred on 19.05.2017 at about 06.00 a.m. while the deceased along with his friend Pallapothula Subrahmanyam was returning on Auto bearing No. AP-16TC-2960, by the offending APSRTC Bus bearing No. AP-28Z-1391 driven by the 1st respondent/ driver belonging to the 2nd respondent/APSRTC, which met with an accident near the entrance of Vellaturu Village. 4. The facts show that 18.05.2017 afternoon, while the deceased Kolusu Harish @ Harish Kumar, along with his friend Pallapothula Subrahmanyam had been to Piduguralla in auto bearing No. AP-16TC-2960 with mangoes load. After unloading mangoes at Piduguralla, when they are returning and their auto was on extreme left side of road proceeding in moderate speed on 19.05.2017 at 06.00 a.m. near Vellaturu Village, APSRTC Bus bearing No. AP-28Z-1391 came in opposite direction at high speed, dashed their auto on right side, as a result, the deceased, who was sleeping in the auto truck sustained severe injuries and lost consciousness and driver P. Subrahmanyam also sustained injuries. On information, the deceased and injured P. Subrahmanyam were shifted to Government Hospital, Vijayawada, and duty doctor declared that Kolusu Harish @ Harish Kumar was dead. The G. Konduru Police registered a case in Cr. No. 83/2017 for the offence punishable U/secs. 304-A and 337 of Indian Penal Code against the 1st respondent/driver of APSRTC Bus. The deceased was aged 20 years. He was working as a coolie and earning Rs. 9,000/- per month and also looking after his parents. The G. Konduru Police registered a case in Cr. No. 83/2017 for the offence punishable U/secs. 304-A and 337 of Indian Penal Code against the 1st respondent/driver of APSRTC Bus. The deceased was aged 20 years. He was working as a coolie and earning Rs. 9,000/- per month and also looking after his parents. Due to the sudden death of deceased, the petitioners lost their bread winner at their old age. 5. Before the Tribunal, the appellant, who is the 2nd respondent in the petition, filed written statement resisting while traversing the material averments with regard to proof of age, avocation, monthly earnings of the deceased, manner of accident, rash and negligence on the part of the driver of the offending vehicle, and liability to pay compensation to the petitioners and contended that police and owner of the auto bearing No. AP-16TC-2960 violated section 134(C) and 158(6) of M.V. Act, which are mandatory. The accident took place solely due to the rash and negligent driving of auto by the friend of deceased, who was in drowsy condition at the time of accident. The 1st respondent was not negligent in driving and the said bus on moderate speed at the time of accident. The deceased is not an earning member and the claim of the petitioners is excessive. The 1st respondent/driver remained ex-parte before the Tribunal. 6. On the strength of the pleadings of both parties, the Tribunal framed the following issues: 1. Whether Kolusu Harish @ Harish Kumar, deceased in the case died in motor accident due to rash and negligent driving of the driver of APSRTC Bus bearing No. AP-28Z-1391? 2. Whether the petitioners are entitled for compensation as prayed? If so, against whom? 3. To what relief? 7. To substantiate their claim, the 1st petitioner was examined as PW-1, PW-2 is injured and eye witness to the accident and PW-3 is third party witness and got marked Exs.A-1 to A-7. On behalf of the 2nd respondent, no oral or documentary evidence was adduced. 8. The Tribunal, taking into consideration the evidence of PWs. 1 to 3, coupled with Exs.A-1 to A-7, held that the accident took place due to rash and negligent driving of the 1st respondent/driver of the APSRTC Bus bearing No. AP-28Z-1391, and further, taking into consideration of the evidence of PWs. 1 to 3 corroborated by Exs.A-1 to A-7, awarded total compensation of Rs. 1 to 3, coupled with Exs.A-1 to A-7, held that the accident took place due to rash and negligent driving of the 1st respondent/driver of the APSRTC Bus bearing No. AP-28Z-1391, and further, taking into consideration of the evidence of PWs. 1 to 3 corroborated by Exs.A-1 to A-7, awarded total compensation of Rs. 7,44,000/- with interest @ 9% P.A. from the date of petition, till the date of realisation. 9. The plea of the 2nd respondent/APSRTC is that the driver of the APSRTC Bus is not responsible for the accident. It was pleaded that the accident took place solely due to the rash and negligent driving of the auto by the friend of the deceased. The deceased is not an earning member and the petitioners have to prove that the age and income of deceased, besides their dependency on him. 10. The Tribunal considered the evidence on record, and based on the contentions of both parties, held that the accident occurred due to the rash and negligent driving of the crime vehicle i.e. 1st respondent. 11. The Tribunal after considering the evidence of PWs. 1 to 3 coupled with Exs.A-1 to A-7, awarded an amount of Rs. 7,14,000/- towards loss of dependency; Rs. 15,000/- towards loss of estate and Rs. 15,000/- towards funeral expenses, altogether Rs. 7,44,000/- towards just and proper compensation to the petitioners. 12. The first contention of the Appellant/APSRTC is that the accident was not due to rash or negligent act of the driver of the APSRTC Bus, and that it was occurred due to the negligent act of the auto driver, in which, the deceased was travelling at the time of accident, and therefore, the driver and owner of the auto and the insurer of the said auto are proper and necessary parties as per section 134(C) and 158(6) of M.V. Act. The Tribunal considered this aspect basing on the evidence of PW-1 and PW-2 coupled with Exs.A-1 to A-5 produced for the petitioners, and held that, the accident was occurred due to rash and negligent driving of the driver of the APSRTC Bus, i.e. Appellant in the case. 13. PW-1 is mother of the deceased Kolusu Harish @ Harish Kumar. PW-2 is driver of the auto, in which the deceased was travelling at the time of accident. 13. PW-1 is mother of the deceased Kolusu Harish @ Harish Kumar. PW-2 is driver of the auto, in which the deceased was travelling at the time of accident. The case of the petitioners, who are parents of the deceased is that the deceased is their son and he was aged about 20 years by the date of his death and on 19.05.2017 he accompanied his friend Pallapothula Subrahmanyam (PW-2) to go to Kosuru near Piduguralla to unload mangoes in the auto bearing No. AP-16TC-2960 and after unloading mangoes, they returned and at about 09.30 p.m. after crossing Guntur Toll Gate, they kept the auto aside and slept till morning and at about 03.00 a.m. they started from there and in the morning at about 06.00 a.m. they crossed Kandulapadu Cross Road, near Vellaturu entrance, and P. Subrahmanyam was driving the auto, and at that time, the 1st respondent, who was driver of the APSRTC Bus bearing No. AP-28Z-1391 was coming from opposite direction, drove the bus in a rash and negligent manner and came towards right side and dashed the auto, which was proceeding in the proper direction on left side of the road, and as a result, the deceased, who was travelling in the auto sustained severe injuries over head and then P.Subrahmanyam informed the same to his friend and they shifted the deceased in the auto, and after arrival on 108 ambulance, they shifted to Government Hospital, Vijayawada, and on the way the deceased died due to the injuries and then police registered a case in Cr. No. 83/2017 U/secs. 304-A and 337 of Indian Penal Code and investigated the case and filed police report (charge sheet) against the 1st respondent for the offence punishable U/secs. 304-A and 337 of Indian Penal Code and as such, the accident was occurred due to the rash and negligence of the driver of the bus i.e. 1st respondent in the case and there was no negligence on the part of driver of the auto. 14. PW-1 is the mother of the deceased and in the chief-examination affidavit, she reiterated the contents of the claim petition. In the cross-examination of 2nd respondent/APSRTC, she admitted that she was not an eye witness to the accident. The petitioners have examined the auto driver Pallapothula Subrahmanyam as PW-2. 14. PW-1 is the mother of the deceased and in the chief-examination affidavit, she reiterated the contents of the claim petition. In the cross-examination of 2nd respondent/APSRTC, she admitted that she was not an eye witness to the accident. The petitioners have examined the auto driver Pallapothula Subrahmanyam as PW-2. In the chief-examination affidavit, he stated as to the manner, in which the accident was occurred, as contended by the petitioners. The 2nd respondent/APSRTC in the cross-examination of PW-2, except giving suggestions, did not elicit anything to disbelieve his evidence about the manner, in which the accident was occurred. Therefore, the evidence of PW-2 established that the accident was occurred due to the negligence of the driver of the APSRTC Bus. The Appellant/APSRTC did not adduce any evidence against the evidence of PW-2. The driver of the offending vehicle i.e. 1st respondent in the claim petition remained ex-parte before the Tribunal. He was not examined as a witness by the Appellant/APSRTC. In those circumstances, the Tribunal rightly held that the accident was occurred due to the rash and negligent act of the driver of the APSRTC Bus. Further, the evidence of PW-2 was corroborated by police report (charge sheet) laid by the police, after conducting investigation for the offence punishable U/secs. 304-A and 337 of Indian Penal Code, where, police found that the accident was occurred due to the rash and negligent act of the driver of the APSRTC Bus. In that view of the matter, I do not find any ground to interfere with the finding of the Tribunal on this issue. 15. When coming to the age and income of the deceased, PW-1, who is mother of deceased in her chief-examination on oath stated that her son was aged about 20 years on the date of accident, which was occurred on 19.05.2017 and he was doing coolie works and earning Rs. 9,000/- per month by the date of his death and she and 2nd petitioner, who is father of deceased are very much associated with their son and depending upon the income of the deceased for their survival. In the cross-examination of 2nd respondent/APSRTC, she denied the suggestion that her son was not working anywhere by the time of accident. Nothing was elicited in her cross-examination to say that her son was not aged 20 years and he was not doing any work by the date of accident. In the cross-examination of 2nd respondent/APSRTC, she denied the suggestion that her son was not working anywhere by the time of accident. Nothing was elicited in her cross-examination to say that her son was not aged 20 years and he was not doing any work by the date of accident. 16. The petitioners/claimants in support of their case, examined one witness Avula Gangaraju as PW-3, who is resident of the same village. In chief-examination, he stated that he was doing coolie works and he was having acquaintance with the deceased, as they belongs to the same village and both of them are doing coolie works by the date of death of deceased and they are doing agricultural works and construction works and they are earning about Rs. 300/- per day by doing the above works. In the cross-examination of 2nd respondent/APSRTC, he deposed that the deceased was unmarried and he was only one son of the petitioners and the petitioners were not attending any work, since the date of death of the deceased, and he denied the suggestion of the APSRTC that he is deposing falsehood as he is close to the petitioners. 17. The Tribunal considering the above evidence, and based on the inquest report and post mortem reports produced for the petitioners, and taking into consideration of the age of the parents of the deceased as 36 and 43 years respectively, fixed the age of the deceased in the age group of 26 to 30 years and fixed the income of the deceased at Rs. 5,000/- per month, though the petitioners claimed the income of the deceased at Rs. 9,000/- per month, and added 40% on the monthly income fixed towards future prospectus, as laid down by the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi, (2017) 16 SCC 680 and deducted half of the income of the deceased towards his personal expenses as per the above judgment of the Hon’ble Apex Court and arrived the loss of dependency to the petitioners would be Rs. 7,14,000/- (Rs. 7,000 x 12 x 17 x ½). The Tribunal awarded Rs. 15,000/- towards loss of estate and Rs. 15,000/- towards funeral charges as per the above judgment of the Hon’ble Apex Court. 18. 7,14,000/- (Rs. 7,000 x 12 x 17 x ½). The Tribunal awarded Rs. 15,000/- towards loss of estate and Rs. 15,000/- towards funeral charges as per the above judgment of the Hon’ble Apex Court. 18. In view of the above facts and circumstances, I do not find any ground to interfere with the amount fixed by the Tribunal for awarding compensation. 19. The other contention of the Appellant/APSRTC is that the Tribunal granted interest at 9% p.a. from the date of petition, till the date of realisation and it is excessive and exorbitant. 20. The learned counsel for the claimants submitted that the Hon’ble Apex Court in the case of Jakir Hussein vs. Sabir, (2015) 7 SCC 2154 which referred another judgment of the Hon’ble Apex Court in Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, (2011) 14 SC 481 granted interest @ 9% p.a. and therefore, it is not exorbitant and excessive. 21. The accident was occurred in the year 2017 and the Appellant/APSRTC without admitting for just, fair and reasonable compensation, dragging on the matter for the last five years. In view of the judgments of the Hon’ble Apex Court on the quantum of interest, and in view of the facts and circumstances of the case on hand, I do not find any ground to interfere with the rate of interest awarded by the Tribunal at 9% p.a. from the date of petition, till the date of realisation. 22. In the light of the above discussion, I do not find any grounds to interfere with the award passed by the Tribunal and the appeal is liable to be dismissed. 23. In the result, the appeal is dismissed, by confirming the award dated 27.09.2019 passed in M.V.O.P. No. 790/2017 on the file of Motor Accidents Claims Tribunal-cum-II Additional District Judge, West Godavari District at Eluru. There shall be no order as to costs. 24. As a sequel, miscellaneous applications pending, if any, shall stand closed.