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2023 DIGILAW 388 (AP)

Banala Varadhi Narayanamma v. M. Hussain Val

2023-02-15

T.MALLIKARJUNA RAO

body2023
JUDGMENT : 1. Aggrieved by the order dated 23.08.2010 in M.V.O.P. No.419 of 2008 passed by the Chairman, Motor Accidents Claims Tribunal-cum-VI Additional District Judge, (Fast Track Court), Gooty (for short “the tribunal”), the claimants preferred this appeal questioning the correctness and the compensation awarded by the Tribunal. 2. For convenience's sake, the parties will hereinafter be referred to as they were arrayed in the M.V.O.P. 3. It is a claim petition filed under Section 140 and 163-A of the Motor Vehicles Act, 1988 (for short ‘M.V.Act’) claiming compensation an amount of Rs.3,00,000/-on account of the death of Banala Varadhi Harinath Reddy (hereinafter referred to as 'the deceased'), who is the son of claimants. 4. The claimant's case is that on 01.10.2007, the deceased and one Kupperla Venugopal Reddy, pillion rider and rider respectively, of the motorcycle bearing No.AP-21-NT/R-7825, coming from Kasepalli village to Gooty on their work. At about 5.00 PM, when they reached Rajiv Gandhi Circle at Gooty on NH-7 road, at that time on A.P.S.R.T.C. Bus bearing No.AP-11-Z-427 (hereinafter referred to as 'the offending bus') was going ahead, and the said motorcycle rider was also going by the side of the bus. At that time, one auto came from the opposite side, and the rider of the motorcycle suddenly applied breaks, due to which the deceased fell from the motorcycle and came under the rear wheels of the offending bus, then the offending bus wheels ran over him, due to which he sustained grievous and simple injuries. Immediately, the deceased was shifted to Government Hospital, Gooty, and he died in the hospital while undergoing treatment on the same day. A case was also registered in Cr. No.142/2007 under section 304(A) of I.P.C. of Gooty Police against the rider of the motorcycle. 5. The 1st respondent, the owner of the motorcycle, remained ex parte. 6. The 2nd respondent/insurer of the motorcycle filed its written statement, denied the claimant's case and also the age, occupation and income of the deceased and contended that the risk of the pillion rider was not covered under policy Ex.B1. The rider of the motorcycle was not holding a valid and effective driving licence. The claim is excessive. 7. 6. The 2nd respondent/insurer of the motorcycle filed its written statement, denied the claimant's case and also the age, occupation and income of the deceased and contended that the risk of the pillion rider was not covered under policy Ex.B1. The rider of the motorcycle was not holding a valid and effective driving licence. The claim is excessive. 7. The 3rd respondent/A.P.S.R.T.C. filed a written statement, denied the case of the claimants and also the age, income and occupation of the deceased and contended that the accident occurred due to rash and negligent riding of the motorcycle and not due to rash and negligent driving of the offending bus by its driver. The claim is excessive. 8. Based on the pleadings, the Tribunal framed appropriate issues. Before the Tribunal, on behalf of the claimants, PWs.1 and 2 got examined and marked Exs.A.1 to A.6. On behalf of the respondents, RWs.1 and 2 got examined and marked Ex.B.1 to Ex.B.3 and Exs.X1 and X.2. 9. After considering the evidence on record, the Tribunal held that the accident had occurred due to rash and negligent driving of the 1st respondent’s motorcycle rider and awarded compensation Rs.2,05,000/-together with interest @ 7.5% per annum from the date of filing of the petition against the respondent No.1 and dismissed the claim against respondents 2 and 3. 10. Heard the arguments of the learned counsel for both parties. 11. Learned counsel for appellants/claimants contended that the Tribunal ignoring the evidence of claimants and Ex.A.5, awarded the liability against the 1st respondent only and dismissed against respondents 2 and 3, is against the law; the Tribunal, without seeing the appellants age and taken the deceased income very low and awarded unreasonable compensation is erroneous even though the policy is in force, dismissed against the 2nd respondent is illegal and against the law; the Tribunal ought to have awarded reasonable compensation. 12. Per contra, the learned counsel for the respondents supported the findings and observations of the Tribunal. 13. Now the point for determination is: I. Whether the Tribunal is justified in holding that the accident occurred on 01.10.2007 due to rash and negligent driving of the A.P.S.R.T.C. Bus bearing No.AP11 X 427 by its driver and caused the death of the deceased? II. Whether the quantum of compensation fixed by the Tribunal requires any modification? POINTNO.I: 14. 13. Now the point for determination is: I. Whether the Tribunal is justified in holding that the accident occurred on 01.10.2007 due to rash and negligent driving of the A.P.S.R.T.C. Bus bearing No.AP11 X 427 by its driver and caused the death of the deceased? II. Whether the quantum of compensation fixed by the Tribunal requires any modification? POINTNO.I: 14. Admittedly, this petition was filed under section 163-A of the M.V.Act, where the petitioner is not required to establish the occurrence of the accident due to the rash and negligent Act of the driver of the offending vehicle. Still, mere proof of the occurrence of an accident due to the use of the motor vehicle is sufficient in view of section 163-A of the Act. 15. As seen from the order of the Tribunal, it has framed an issue of whether the accident occurred on 01.10.2007 due to rash and negligent driving of A.P.S.R.T.C. Bus bearing No.AP11 Z 427 by its driver and caused the death of the deceased. After appreciation of the evidence adduced, the Tribunal held that it is difficult to hold that the accident occurred due to rash and negligent driving of the bus by its driver. 16. In a decision between United India Insurance Company Limited Vs. Sunil Kumar and another, (2019) 12 SCC 398, wherein the Apex Court observed as follows: Unable to agree with the reasoning and the conclusion of a two-Judge Bench of this Court in National Insurance Company Ltd. v. Sinitha, (2012) 2 SCC 356 : (2012) 1 S.C.C. (Civ) 881 : (2012) 1 S.C.C. (Cri) 659, a coordinate Bench of this Court by order dated 29-10-2013 [United India Insurance Co. Ltd. v. Sunil Kumar, (2014) 1 SCC 680 : (2014) 1 S.C.C. (Civ) 642] has referred the instant matter for a resolution of what appears to be the following question of law: “Whether in a claim proceeding under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”) it is open for the insurer to raise the defence/plea of negligence?” From the above discussion, it is clear that the grant of compensation under Section 163-A of the Act based on the structured formula is in the nature of a final award. The adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. The adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163-A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit the such defence to be introduced by the insurer and to understand the provisions of Section 163-A of the Act to be contemplating any such situation would go contrary to the very legislative object behind the introduction of Section 163-A of the Act, namely, final compensation within a limited time-frame based on the structured formula to overcome situations where the claims of compensation based on fault liability were taking an unduly long time. To understand Section 163-A of the Act to permit the insurer to raise the defence of negligence would be to bring a proceeding under Section 163-A of the Act on a par with the proceeding under Section 166 of the Act, which would not only be self-contradictory but also defeat the very legislative intention. For the aforementioned reasons, we answer the question by holding that in a proceeding under Section 163-A of the Act; it is not open for the insurer to raise any defence of negligence on the part of the victim. 17. By following the principles laid down in the said citation, this Court views that the Tribunal is supposed to have decided regarding the involvement of the R.T.C bus and motorcycle in the accident and that such accident caused the death of the deceased. 18. In view of the foregoing discussion, now this Court is inclined to consider whether the claimants are able to establish the involvement of the offending bus and motorcycle in the accident. To prove the same, the 2nd claimant was examined as PW.1. He stated in his evidence that on 01.10.2007, his son and another person by the name Venugopal Reddy were coming from Kasepalli village to Gooty on motor cycle bearing No.AP-21-NT/R-7825 for their work, and at about 5.00 PM, when they reached near to Rajiv Gandhi Circle at Gooty town, the offending bus was going ahead. They were also going by the side of the bus, and at that time, one auto came from the opposite side. They were also going by the side of the bus, and at that time, one auto came from the opposite side. The rider of the motorcycle suddenly applied breaks, due to which his son, i.e., the deceased, who was a pillion rider, fell from the motorcycle and the offending bus back wheels ran over him, due to which the deceased sustained grievous and simple injuries. 19. The claimants contend that the driver of the offending bus did not follow the traffic rules and the accident occurred due to his negligence. In support of the claimant's case, they relied on Ex.A1-certified copy of F.I.R. and an Ex.A5-certified copy of the charge sheet. The claimants have also relied on Ex.A2-certified copy of the inquest report and an Ex.A3-certified copy of the postmortem report to show the deceased's death due to injuries in the accident. The death of the deceased due to injuries sustained in the accident is established by Ex.A2 and Ex.A3 documents, and the said case of the claimants is also not disputed by the contesting respondents. The evidence of PW.1 shows that the deceased is an unmarried person and PW.1 is not an eye witness to the accident, and the claimants are claiming compensation from the A.P.S.R.T.C., as the accident occurred due to the Act of the driver of the A.P.S.R.T.C. bus. In the cross-examination of PW.1, he admitted that the police registered the case against Venugopal Reddy, the rider of the motorcycle, alleging that the accident occurred due to his rash and negligent riding. 20. As seen from the evidence of RW.1-T.Somaraj, Assistant Manager (Legal) of the 2nd respondent insurance company, he deposed about the manner of the accident in his chief examination affidavit. But coming to his cross-examination, he stated that he does not have personal knowledge about the accident and Ex.B1 is the package policy as of the date of the accident. The evidence of RW.1 is not disputed by the other side, which shows that the insurance company issued a policy of insurance to the vehicle bearing No.AP-21-NT/R-7825 i.e., motorcycle of which the deceased proceeded as a pillion rider covering the period of insurance from 01st July 2007 to 31st July 2008 and as of the date of the accident, the policy was in force. 21. 21. The evidence of RW.1 coupled with the terms of Ex.B1 policy shows that it is a package policy, and as of the date of the accident, the policy was in force subject to certain conditions. The capacity of the crime vehicle as per the Ex.B1 policy is two. It is the evidence of PW.1 that, as per the crime records filed by the claimants that the rider of the motorcycle was at fault which the accident occurred. Even if it is assumed that the accident occurred due to negligence of the rider of the motorcycle, based on the same, this Court views that the insurance company cannot deny the liability to pay the compensation amount to the pillion rider as it is not the case of the insurance company also that the pillion rider was negligent and he caused the accident. Admittedly, the capacity of the crime vehicle as per the policy is two and RW.1 also clearly admitted in his cross-examination that the pillion rider is covered under Ex.B1-policy. In view of the said admitted factual possession, this Court views that the insurance company cannot escape from liability by contending that the rider of the motorcycle was negligent and his negligence caused the accident as per the crime records relied on by the claimants. 22. Now, I consider whether the claimants can establish the involvement of the offending bus in the accident. PW.1 clearly stated in his evidence about the involvement of the offending bus. The case of the claimants that when the motorcycle was going by the side of the offending bus, in the meantime, one auto came from the opposite side, and the rider of the motorcycle suddenly applied breaks, due to which the deceased fell from the motorcycle and went under the rear wheels of the offending bus. The offending bus wheels ran over him. The facts of the claimants as deposed by PW.1 are not disputed by the A.P.S.R.T.C. 23. The contention of the A.P.S.R.T.C. as well as the insurance company, is that the accident was caused due to the rash and negligent driving of the motorcycle’s rider only. The offending bus wheels ran over him. The facts of the claimants as deposed by PW.1 are not disputed by the A.P.S.R.T.C. 23. The contention of the A.P.S.R.T.C. as well as the insurance company, is that the accident was caused due to the rash and negligent driving of the motorcycle’s rider only. Thus, as seen from the contents of the Ex.A5-charge sheet, it is observed by the Sub Inspector of Police that due to the sudden impact, the pillion rider, i.e., deceased, fell on the road to his left side, resulting in the right rear tyres of the offending bus ran upon the deceased and the deceased was found with a bleeding injury which was extended from left shoulder to thighs. While shifting the deceased to the hospital, he succumbed to the injuries. The material placed amply establishes the use of the motorcycle and the offending bus; and the death of the deceased occurred due to accident arising out of the use of the motorcycle. Needless to say that Sec.133 of the M.V.Act is part of an essential beneficial piece of legislation. The said section was inserted in 1994 to prove the fault concept and to deviate from the law of tort. This Court views that the mere involvement of the offending bus and motorcycle is sufficient to entitle a person claiming compensation to seek the same. 24. In the facts of the case, this Court views that the Tribunal has given the incorrect finding regarding the rash and negligent driving of the offending bus driver, and it is supposed to have decided only as to the involvement of the offending bus and motorcycle in the accident. After careful analysis of the evidence on record, this Court views that the claimants can establish the user of the offending bus and motorcycle and their involvement in the accident, and the claimants are entitled to compensation. Accordingly, the point is answered. POINT NO.II: 25. After considering the evidence on record, the Tribunal held that for maintaining the deceased and the claimants, the deceased must have worked hard and earned not less than Rs.3,000/- per month and his income assessed at Rs.3,000/-per month. As seen from the record, the deceased was about 25 years at the time of the accident. 26. POINT NO.II: 25. After considering the evidence on record, the Tribunal held that for maintaining the deceased and the claimants, the deceased must have worked hard and earned not less than Rs.3,000/- per month and his income assessed at Rs.3,000/-per month. As seen from the record, the deceased was about 25 years at the time of the accident. 26. In the absence of any evidence on record showing the actual earnings of the deceased, the Tribunal has rightly assessed the income at Rs.3,000/-per month. But as seen from the order of the Tribunal, it has applied a multiplier by taking into consideration the age of the 1st claimant, who is the mother of the deceased and applied the multiplier ‘11’. 27. In Royal Sundaram Alliance Vs. Mandala YadagariGoud decided on 09.04.2009 in CA.No.6600 of 2015 it is held that: “…A reading of the judgment in Sube Singh (supra) shows that where a three-Judge Bench has categorically taken the view that it is the age of the deceased and not the age of the parents that would be the factor to take the multiplier to be applied. This judgment undoubtedly relied upon the case of Munna Lal Jain (supra), a three-Judge Bench judgment on this behalf. The relevant portion of the judgment has also been extracted. Once again, the extracted portion refers to the judgment of a three-Judge Bench in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 S.C.C. 65 ). The relevant portion of ReshmaKumari, in turn, has referred to SarlaVerma (supra) case and given its imprimatur to the same. The loss of dependency is thus stated to be based on: (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. It is the third aspect of significance, and ReshmaKumari categorically states that it does not want to revisit the law settled in the Sarla Verma case on this behalf. 12. Not only this, but the subsequent judgment of the Constitution bench in Pranay Sethi (supra) has also been referred to in Sube Singh for calculating the multiplier. 13. It is the third aspect of significance, and ReshmaKumari categorically states that it does not want to revisit the law settled in the Sarla Verma case on this behalf. 12. Not only this, but the subsequent judgment of the Constitution bench in Pranay Sethi (supra) has also been referred to in Sube Singh for calculating the multiplier. 13. We are convinced that there is no need to take up once again this issue settled by the aforesaid judgments of the three-Judge Bench and also relying upon the Constitution Bench that it is the age of the deceased which has to be taken into account and not the age of the dependents." 28. By following the principles laid down by the Apex Court, this Court views that the Tribunal committed an error while taking the age of the deceased’s mother into consideration, and it should have taken into consideration the age of the deceased. 29. Per the second schedule for compensation for third-party fatal accidents/injury case claims, the multiplier 17' will apply to the age group of above 20 but not exceeding 25 years. The age of the deceased is 25 years as of the date of the accident, so this Court considered the multiplier 17' in calculating the loss of income of the deceased. 30. As per the dictum of Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009 ACJ 1295 , the Tribunal has deducted 50% of the deceased’s earnings towards personal and living expenses. As it is a petition filed under section 163-A of M.V.Act, this Court views that the Tribunal ought to have seen deducted 1/3rd of his earnings. 31. In a decision reported in Bajaj Allianz General Insurance Company Limited, V. Anil Kumar, 2015 ACJ 268 , wherein the High Court of Punjab and Haryana held that, under the second schedule, after assessing compensation without applying the deduction, it is laid down by way of a note that 1/3rd has to be deducted from the total compensation in consideration of the expenses of the deceased himself. 32. By following the above principle, this Court views that 1/3rd has to be deducted towards the personal and living expenses of the deceased. Therefore, the monthly dependency of the claimants comes to Rs.2000/-(Rs.3,000/-(-) Rs.3,000/-x 1/3), which on multiplication with 12, comes to Rs.24,000/-per annum. The Tribunal has taken the multiplier ‘11’. 32. By following the above principle, this Court views that 1/3rd has to be deducted towards the personal and living expenses of the deceased. Therefore, the monthly dependency of the claimants comes to Rs.2000/-(Rs.3,000/-(-) Rs.3,000/-x 1/3), which on multiplication with 12, comes to Rs.24,000/-per annum. The Tribunal has taken the multiplier ‘11’. As per the second schedule, the multiplier of ‘17’ is suitable in case the victim's age has been above 20 years but not exceeding 25 years. The deceased was unmarried. The claimants are the deceased's parents, and therefore, the loss of dependency would arrive at an amount of Rs.4,08,000/-(Rs.24,000/-x 17). 33. The Tribunal has granted Rs.5,000/-towards loss of estate and Rs.2,000/-towards funeral expenses. This Court is also inclined to consider the compensation under the head of loss of estate and funeral expenses awarded by the Tribunal. 34. In Laxman @ Laxman Mourya v. Divisional Manager, Oriental Insurance Company Limited and another, (2011) 10 SCC 756 , the Apex Court while referring to Nagappa v. Gurudayal Singh, 2003 A.C.J. 12 (SC) 274, held as under: “It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/-only, but as held in Nagappa v. Gurudayal Singh (2003) 2 SCC 274 , in the absence of any bar in the Act, the Tribunal and for that any competent Court is entitled to award higher compensation to the victim of an accident.” 35. In Ramla Vs National Insurance Co. Ltd., Civil Appeal No.11495 Of 2018, the Apex Court held no restriction to award compensation exceeding the amount claimed. As such, given the principle laid down by the Apex Court, the claimants are entitled to an amount of Rs.4,15,000/-exceeding the claimed amount. However, the claimants shall pay the requisite court fee over and above the compensation awarded. 36. Following the principles laid down by the Apex Court in a catena of judgments, this Court can safely conclude that the claimants are entitled to get more than what has been claimed. Further, the Motor Vehicles Act is a beneficial piece of legislation where the interest of the claimants is a paramount consideration. The Courts should always endeavour to extend the benefit to the claimants to a just and reasonable extent. 37. Further, the Motor Vehicles Act is a beneficial piece of legislation where the interest of the claimants is a paramount consideration. The Courts should always endeavour to extend the benefit to the claimants to a just and reasonable extent. 37. As a result, the appeal is allowed in part without costs, enhancing the compensation from an amount of Rs.2,05,000/-to Rs.4,15,000/-(Rs.4,08,000/-+ Rs.5,000/-+ Rs.2,000/-) (Rupees Four Lakhs Fifteen Thousand only) against the respondents 1 to 3, with the same rate of interest and awarded by the Tribunal, i.e., at 7.5% per annum. The claimants are directed to pay the requisite court fee on enhanced compensation over and above the compensation amount claimed. Respondents are directed to deposit the enhanced compensation amount, excluding the amount deposited, if any, within two months of receiving a copy of this order. The deceased's mother, i.e., claimant No.1, is entitled to 65% of the enhanced compensation amount with accrued interest on the entire compensation. In contrast, claimant No.2 is entitled to 35% of the enhanced compensation amount. On deposit, the claimants are permitted to withdraw their respective shares upon filing an appropriate application before the Tribunal as per the terms of the order passed by the Tribunal. 38. Miscellaneous petitions pending, if any, in this appeal shall stand closed.