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Telangana High Court · body

2023 DIGILAW 245 (TS)

Telugu Savithri v. Khaja Mohamood

2023-03-23

M.G.PRIYADARSINI

body2023
JUDGMENT : These two appeals are being disposed of by this common judgment since M.A.C.M.A.No.3766 of 2014 filed by the claimants and M.A.C.M.A.No.2199 of 2019 filed by the Road Transport Corporation challenging the quantum of compensation, are directed against the very same judgment and decree, dated 28.04.2014 made in O.P.No.732 of 2011 on the file of the Motor Vehicle Accident Claims Tribunal-cum-XI Additional District Judge (FTC), Ranga Reddy District (for short “the Tribunal”). 2. For the sake of convenience, hereinafter the parties will be referred to as per their array before the Tribunal. 3. Brief facts of the case are that the claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.7,00,000/- for the death of one Telugu Ashok (hereinafter referred to as “the deceased”), who died in the accident that occurred on 12.05.2011. According to the claimants, on 12.05.2011 the deceased was proceeding on his motorcycle bearing No.AP 23 L 4279 from Amaradikala village to Hyderabad and when he reached Cross Road of Mekavanampally near Ambedkar Statute at 12:30 a.m., one hired R.T.C. bus bearing No.AP 28 Y 8190 driven by its driver in a rash and negligent manner at high speed, dashed the motorcycle of the deceased, as a result of which, the deceased sustained injuries and died on the spot. On a complaint, the Police Mominpet, registered a case against the driver of the bus. According to the claimants, the deceased was 29 years and earning Rs.4,500/- per month as he was working as Field Assistant in Food for Work Programme under M.R.O. Mominpet and due to sudden demise of the deceased, they lost their source of income and love and affection. Therefore, they laid the claim against the respondents. Respondent No.1 is the owner, respondent No.2 is the insurer and respondent No.3 is the hirer of the bus and they are jointly and severally liable to pay the compensation. Respondent Nos.4 and 5 are the parents and respondent No.6 is the un-married brother of the deceased. 4. Therefore, they laid the claim against the respondents. Respondent No.1 is the owner, respondent No.2 is the insurer and respondent No.3 is the hirer of the bus and they are jointly and severally liable to pay the compensation. Respondent Nos.4 and 5 are the parents and respondent No.6 is the un-married brother of the deceased. 4. Considering the claim, counters filed by respondent Nos.2 to 6 and the oral and documentary evidence adduced by both the parties, the Tribunal held that the accident occurred due to the negligent driving of both the deceased as well as the driver of the R.T.C. bus and having apportioned the contributory negligence at 40% on the part of the rider of the motorcycle i.e., the deceased, the tribunal has awarded the total compensation of Rs.3,65,000/- to be paid by the respondent Nos.2 and 3 jointly and severally. Challenging the same, the present appeals came to be filed by the claimants and the Road Transport Corporation respectively. 5. Heard the learned counsel for the claimants, learned Standing Counsel for the Insurance Company and the learned Standing Counsel for the RTC. Perused the material available on record. 6. The main contention raised by the learned counsel for the claimants (appellants in MACMA No. 3766 of 2014) is that the tribunal has committed grave error in apportioning contributory negligence at 40% on the part of the deceased merely on the ground that the accident occurred as a result of head on collision in a broad day light. In this regard, the tribunal has not properly appreciated the evidence of PW-2, eyewitness, who categorically deposed that while the deceased was taking turn towards right, the offending vehicle came in high speed negligently and dashed the two wheeler. Therefore, the learned counsel for the claimants seeks to set aside the findings of the tribunal in this regard. As regard the quantum of compensation, it is contended that though the claimants have claimed that the deceased was earning Rs.4,500/- per month as Field Assistant under the M.R.O., the tribunal has taken the meager amount of Rs.30,000/- as the annual income of the deceased. It is further contended that as per the principles laid down by the Apex Court in National Insurance Company Limited Vs. It is further contended that as per the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others, 2017 ACJ 2700 , considering the age of the deceased below 40 years, future prospects at 40% to the established income of the deceased needs to be added. It is lastly contended that as per the decision of the Apex Court in Pranay Sethi’s case (supra), the claimants are entitled to Rs.77,000/- under conventional heads. 7. Per contra, learned Standing Counsel for the Insurance Company-M/s. Shriram General Insurance Company Limited, has submitted that the Tribunal has erred in fixing 60% contributory negligence on the part of the driver of the offending vehicle. In fact, due to gross negligence on the part of the deceased in riding the motorcycle, the accident took place. Even the testimony of P.W.2, eyewitness to the accident, discloses that the deceased entered the main road from a small road at high speed without observing the vehicular traffic on the main road. Coming to the quantum of compensation, the learned Standing Counsel has submitted that the Tribunal has, in fact, granted adequate compensation and the same needs no interference. Insofar as the liability is concerned, it is contended that inasmuch as the RTC was hirer of the bus, the tribunal has rightly apportioned the compensation amount to be payable by the RTC and the Insurance company equally. 8. The learned Standing Counsel for the R.T.C.-appellant in M.A.C.M.A.No.2199 of 2019 has vehemently contended that the Tribunal grossly erred in fixing liability on the RTC, who is a mere hirer of the bus, and in fact, as Ex.B.1 policy was in force, the liability ought to have been fixed on the insurer and owner of the bus. It is contended that the hire agreement between the owner of the vehicle and the RTC does not absolve the liability of insurer from payment of compensation and therefore, the RTC ought to have been exonerated from the liability. 9. The question of contributory negligence arises when there has been some act or omission on the part of the deceased, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as `negligence'. 9. The question of contributory negligence arises when there has been some act or omission on the part of the deceased, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as `negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence", it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an author of his own wrong. 10. In the instant case, the Tribunal while considering issue Nos.1 and 2 as to whether the driver of the RTC bus No.AP 28 Y 8190 drove the same in a rash and negligent manner and caused the accident and whether Telugu Ashok (deceased) died in road accident due to rash and negligent driving of the driver of the RTC bus, has held that besides rash and negligent driving of driver of R.T.C. bus there is contributory negligence of the deceased also in resulting the accident and contributory negligence is assessed in the ratio of 40% on the part of the deceased and 60% on the part of the driver of the auto. It is relevant to extract the findings of the Tribunal in this regard. At para 7, the Tribunal has observed as under: “7. ... The particulars given by P.W.2 clearly shows that deceased came from small road from North entered into the main road running from West to East and he has to went towards South accident took place as bus came from West and hit him. If really deceased was careful to see the bus coming from West side he would have awaited till that bus reached that bus stop or passed the road junction and it is clear that deceased suddenly came on to the main road and the bus coming in high speed came there and dashed him. When there is a bus stop at 4 road junction driver of bus is also suppose to be careful while driving the bus though Exs.A1 and A2 shows that charge sheet was filed against driver of the bus alleging that due to his rash and negligent driving only offence was committed. When there is a bus stop at 4 road junction driver of bus is also suppose to be careful while driving the bus though Exs.A1 and A2 shows that charge sheet was filed against driver of the bus alleging that due to his rash and negligent driving only offence was committed. The physical features of the place of accident clearly shows that there is contributory negligence on the part of the deceased also and he died due to injuries hence so far as issue No.1 is concerned it is held that besides rash and negligent driving of driver of R.T.C. bus there is contributory negligence of deceased also in resulting in the accident and issue No.2 is held in the affirmative.” 11. As seen from the testimony of P.W.2, the accident took place in the broad day light and the deceased, rider of the motorcycle, suddenly came on to the main road. Had the deceased, who was coming from a small road to the main road, rode the motorcycle in a controlled speed and observed the vehicular traffic on the main road, he would have noticed the offending bus coming on the main road and thus, certainly, the accident might have been averted. Although Exs.A.1 and A.2, FIR and Charge Sheet respectively, disclose that the charge sheet was filed against the driver of the bus alleging that the accident occurred due to his negligence, the Tribunal, considering the physical features of the place of accident and the evidence of P.W.2, held that there is fault on the side of the deceased motorcyclist in dashing the R.T.C. bus. Therefore, taking into consideration the evidence of P.W.2, the Tribunal has rightly fixed the contributory negligence on the part of the deceased and the driver of the bus at 40% and 60% respectively, which needs no interference by this Court. 12. Coming to the aspect of quantum of compensation, although the claimants have claimed that the deceased was working as Field Assistant in Food for Work Programme under M.R.O., Mominpet and earning Rs.4,500/- per month, they did not produce any evidence to show that he was earning Rs.4,500/- per month. Since the deceased was aged about 29 years at the time of accident and he was able bodied person, this Court is inclined to fix the income of the deceased at Rs.4,500/- per month. Since the deceased was aged about 29 years at the time of accident and he was able bodied person, this Court is inclined to fix the income of the deceased at Rs.4,500/- per month. However, as rightly contended by the learned counsel for the claimants, the claimants are entitled to addition of 40% towards future prospects to the established income, as per the decision of the Apex Court in Pranay Sethi (supra). Therefore, future monthly income of the deceased comes to Rs.6,300/- (Rs.4,500/- + Rs.1,800/- being 40% thereof). From this, 1/4th is to be deducted towards personal expenses of the deceased following Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC) as the dependents are four in number. After deducting 1/4th amount towards his personal and living expenses, the contribution of income by the deceased to the family comes to Rs.4,725/- per month. Since the deceased was 29 years by the time of the accident, the appropriate multiplier is ‘17’ as per the decision reported in Sarla Verma (supra). Adopting multiplier ‘17’, the total loss of dependency comes to Rs.4,725/- x 12 x 17 = Rs.9,63,900/-. In addition thereto, the claimants are also entitled to Rs.77,000/- under the conventional heads as per Pranay Sethi’s (supra). Further, the claimant No.2, being the minor son of the deceased, is entitled to Rs.40,000/- under the head of parental consortium as per the decision of the Apex Court in Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others, (2018) 18 SCC 130 . Thus, in all, the total compensation comes to Rs.10,80,900/-. Out of the said amount, after deducting the contributory negligence of 40% on the part of the deceased, the claimants are entitled to a sum of Rs.6,48,540/- towards 60% of the compensation. 13. Insofar as the liability is concerned, admittedly, the R.T.C., appellant in M.A.C.M.A.No.2199 of 2019 is the hirer of the crime bus that belonged to respondent No. 2 herein and insured with respondent No. 3 herein. It is also not in dispute that Ex.B.1 policy was in force as on the date of accident. The owner of the bus paid the premium towards liability of passengers and third parties risk. The insurance company collected the said premium and issued Ex.B1 policy. It is also not in dispute that Ex.B.1 policy was in force as on the date of accident. The owner of the bus paid the premium towards liability of passengers and third parties risk. The insurance company collected the said premium and issued Ex.B1 policy. Therefore, merely because there is hire agreement between the owner of the bus and the RTC, it cannot absolve the liability of the Insurance Company from payment of compensation. 14. In A.P.S.R.T.C., Hyderabad v. B.Kanaratnabai, (2013) 1 ALD 644 (FB) a Full Bench of composite State of Andhra Pradesh held as under:- “83. On principle, it is not open to the insurance companies to absolve themselves of liability towards passenger/third party risks on the short ground that the insured vehicle has been given on hire without following the prescribed procedure. This Court in Madineni Kondaiah’s case (supra) has already held that even transfer of the ownership of an insured vehicle without following the due procedure would not absolve the insurance company of liability towards third party risks. Mere transfer of possession, through hire of the vehicle, cannot stand on a worse footing or exempt the Insurance Companies from liability in this regard. 84. ….. 85. On the above analysis, we hold that mere hiring of insured buses by the owners to the APSRTC would not in any manner limit the liability and accountability of the Insurance Companies, be it under the Act of 1988 or the Act of 1939, to honour passengers/third party risks covered by the Insurance Policies issued by them in favour of the owners. Notwithstanding the hiring of insured buses by the owners to the APSRTC, the Insurance Companies shall be solely and exclusively liable for payment of the compensation arising out of such passengers/third party claims unless any of the grounds in Section 149 (2) of the Act of 1988/Section 96 (2) of the Act of 1939 are made out.” 15. In U.P.State Road Transport Corporation v. National Insurance Company Limited and others, 2021 ACJ 2282 while referring to the judgment in U.P.State Road Transport Corporation v. Kulsum, 2011 ACJ 2145 (SC) the Apex Court held as under: “The Court has come to the conclusion that when the effective control and command of the bus is with the Corporation, the Corporation becomes the owner of the vehicle for the specified period. It was further held that when the actual possession of the vehicle is with the Corporation, the vehicle, the driver and the conductor were under the direct control and supervision of the Corporation. Therefore, “through the definition of ‘vicarious liability’ it can be inferred that the person supervising the driver is liable to pay the compensation to the victim. During such time, however, it will be deemed that the vehicle was transferred along with the insurance policy, even if it were insured at the instance of the original owner. Thus, the insurance company would not be able to escape its liability to pay the amount of compensation.” 16. In view of the law laid down by the Apex Court in the judgments referred to above, the finding of the tribunal in fastening liability jointly and severally upon the RTC along with insurance company is not sustainable under law and liable to be set aside. 17. Accordingly, MACMA No. 2199 of 2019 stands allowed setting aside the findings of the tribunal to the extent of fastening liability jointly and severally upon the appellant-RTC along with the Insurance Company, respondent No.4 herein. The appellant-RTC is exonerated from the liability of payment of compensation and the respondent No.3 being owner and respondent No.4 being insurer of the crime bus are liable to pay the compensation. The appellant-RTC is at liberty to recover the amount, if any already paid/deposited, from the insurer i.e., respondent No.4 herein. MACMA No.3766 of 2014 stands allowed in part enhancing the quantum of compensation awarded by the Tribunal from Rs.3,65,000/- to Rs.6,48,540/- to be paid by the owner and the insurer of the crime bus i.e., respondent Nos.1 & 2 herein, jointly and severally. The enhanced amount shall carry interest at 7.5% per annum from the date of the petition till the date of realization. The enhanced amount shall be apportioned in the manner as ordered by the Tribunal. Time to deposit the compensation is two months from the date of receipt of a copy of this order. There shall be no order as to costs. Miscellaneous petitions, if any, pending shall stand closed.