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2023 DIGILAW 443 (AP)

Ulusu Rajyalakshmi v. B. Ravi

2023-02-23

T.MALLIKARJUNA RAO

body2023
JUDGMENT: 1. Aggrieved by the order dated 28.01.2014 in M.V.O.P. No.972 of 2004 passed by the Chairman, Motor Accidents Claims Tribunal – Cum-II Additional District Judge, Amalapuram (for short “the tribunal”) claimants, whereby the tribunal dismissed the claim petition, the claimants have preferred the present appeal. 2. For convenience's sake, the parties will be referred to as arrayed in the M.V.O.P. 3. The claimants' case is that they have filed a petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.20,0,000/- on account of the death of Ulusu Gangaraju, (hereinafter be referred as “the deceased”) who died in a motor vehicle accident that occurred on 17.08.2004. 4. The 1st claimant is the wife, claimants 2 and 3 are the children and the respondents 4 and 5 are the parents of the deceased. The deceased was employed in Central Industrial Security Force and was working in Kaiga in Karnataka. On 14.08.2014 the deceased was returning to Komaragiripatnam village from Srungavruksham on his motorcycle bearing No.AP 5 G 4743. After crossing the railway station at Srungavruksham, at about 04.00 PM, a lorry bearing No.AP 16 W 4757 (hereinafter be referred to as ‘the offending vehicle’) came from Bhimavaram side and going towards Palakole. The 1st respondent drove the lorry in a rash and negligent manner without blowing horn at high speed and dashed the deceased from back side. As a result, the deceased fell down from motorcycle, the right side wheels of the offending vehicle ran over the head of deceased, and the deceased died on spot. Hence, the claim petition. 5. The 1st respondent, driver of the offending vehicle, filed his counter denying the allegations made in the petition. He contended that he did not drive the lorry rashly and negligently ; the accident did not occur due to his driving the accident might have been caused by some other driver, but not the 1st respondent and that the compensation is exaggerated. 6. The 2nd respondent, owner of the offending vehicle, filed his counter contending that the accident might have been caused by some other vehicle, but not due to the 1st respondent. No liability is cast upon him. The 1st respondent did not drive the vehicle rashly and negligently. The 1st respondent did not cause the accident. The compensation claimed by the petitioners is excessive. The 3rd respondent has to bear the same as an insurer. No liability is cast upon him. The 1st respondent did not drive the vehicle rashly and negligently. The 1st respondent did not cause the accident. The compensation claimed by the petitioners is excessive. The 3rd respondent has to bear the same as an insurer. 7. The 3rd respondent filed its counter contending that the claim petition is not maintainable. The deceased himself contributed to the happening of the accident. The insurer of motorcycle bearing No.AP 5 G 4743, on which the deceased travelling, is also proper and necessary party to the proceedings. The compensation claimed by the petitioners is excessive. 8. The respondents 4 and 5 filed their counter contending that the deceased died in the accident due to rash and negligent driving of the 1st respondent; the respondents 1 to 3 are jointly and severally liable to pay compensation not only to the petitioners, but also to the respondents 4 and 5. The 1st petitioner filed this petition on her own without consulting the respondents 4 and 5 for the reasons best known to her. The respondents 4 and 5 are the parents of deceased and dependents upon the deceased. Due to sudden death of their son, the respondents 4 and 5 suffered shock, mental agony and also lost their dependency. So the respondents 4 and 5 are entitled to get compensation from the respondents 1 to 3. 9. Based on the pleadings, the Tribunal has framed relevant issues. To substantiate the claim, on behalf of the claimants, P.Ws.1 to 3 got examined and marked Exs.A.1 to A.11. On behalf of the respondents none were examined and got marked Ex.B.1-copy of the policy. 10. Based on the oral and documentary evidence, the tribunal held that the claimants failed to establish the involvement of the offending vehicle in the accident in question and dismissed the claim petition. 11. I have heard the learned counsel representing both the parties. 12. Learned counsel for appellants/claimants has contended that that the Tribunal erred in dismissing the O.P. observing that the accident was not occurred due to rash and negligent driving of the offending vehicle’s driver. The Tribunal did not take into consideration of the material evidence available on record i.e., the FIR, inquest report, report of Vehicle Inspector and also the charge sheet. The Tribunal did not take into consideration of the material evidence available on record i.e., the FIR, inquest report, report of Vehicle Inspector and also the charge sheet. The Tribunal ought to have seen that Exs.A1, A2, A4 and A8 disclose that the accident was occurred due to rash and negligent driving of the offending vehicle’s driver. The Tribunal grossly erred in discarding the evidence adduced by the claimants without giving any reasons. 13. Per contra, the learned counsel for the respondents supported the findings and observations of the Tribunal. 14. Now the points for determination are : 1. Whether the tribunal is justified in holding that the claimants failed to establish the involvement of the offending vehicle in the accident? 2. Whether the claimants are entitled to the compensation as claimed? 15. Before determining the points, I briefly refer the undisputed facts. 16. The relationship among the claimants as claimed in the petition is not disputed. The 1st petitioner is the wife, petitioners 2 and 3 are the children, the respondents 4 and 5 are the parents of the deceased. 17. As seen from the material on record, the death of the deceased due to injuries sustained in the accident is not disputed. However, the involvement of the offending vehicle is seriously disputed. The evidence of PW.1 coupled with Ex.A2 inquest report, Ex.A3 postmortem certificate, Ex.A5 death certificate and Ex.A8 charge sheet establish the death of the deceased due to injuries sustained in the accident. The first respondent is the driver; second respondent is the owner; the third respondent is the insurer of the offending vehicle. The original of Ex.B1 policy was in force as on the date of accident. But the tribunal dismissed the OP by observing that in view of the finding on issue No.1 the question of awarding compensation to the petitioners would not arise. 18. The Tribunal previously dismissed the OP by holding that the claimants failed to prove rash and negligent driving by the first respondent. Aggrieved by the said order dated 12.04.2007 passed by the Tribunal, the petitioners approached this court by filing MACMA.No.1424 of 2007 and this court was pleased to remitted the matter to the Tribunal with a direction that an opportunity to the claimants to examine the said witness K. Ramesh to be given and dispose of the matter afresh. Aggrieved by the said order dated 12.04.2007 passed by the Tribunal, the petitioners approached this court by filing MACMA.No.1424 of 2007 and this court was pleased to remitted the matter to the Tribunal with a direction that an opportunity to the claimants to examine the said witness K. Ramesh to be given and dispose of the matter afresh. As per the directions of this court, the tribunal restored the OP and sent notices to the witness by name K. Ramesh. The claimants filed a memo on 27.01.2014 informing that Sri. K. Ramesh went to Abroad for job and not residing in the country and therefore summons could not served on him. Thus, despite the opportunity given by this court, the petitioners could not avail it. 19. As seen from the Tribunal’s order on receipt of the notices after remand the respondents 1 and 2 remained ex-parte and the respondents 3 to 5 contested the matter. Point No.1 : a. The wife of the deceased, 1st petitioner, was examined as PW.1. In her evidence, she narrated the manner of the accident. However, during her cross examination, she stated that she did not witness the accident. Thus, she does not have personal knowledge about the manner of accident. b. Coming to the evidence of PW.3-G.Nagamani, who claimed to have witnessed the incident, testified that she saw the accident in question that one lorry hit the motorcycle from behind in a rash and negligent manner. As a result of which the motorcycle rider fell down and the wheels of the lorry ran over him. The Tribunal discarded her evidence by observing that, her evidence does not prove that the lorry owned by the second respondent caused the accident. The Tribunal has also taken into consideration of her evidence that railway track is not visible from her house and she did not go near the deceased from the place where she was standing in front of her house at the time of accident. She doesn’t know the name or identity of the person died till the police arrived and she did not give report to the police. The name of PW.3 was also not mentioned in the charge sheet. Ex.A1 copy of FIR discloses that the case was registered on the basis of report given by one K. Ramesh, who is relative of deceased. The name of PW.3 was also not mentioned in the charge sheet. Ex.A1 copy of FIR discloses that the case was registered on the basis of report given by one K. Ramesh, who is relative of deceased. After analyzing the evidence of PW.3, the Tribunal has come to a conclusion that her evidence is not helpful to establish the involvement of the offending vehicle. c. It is pertinent to note that despite the service of notice the respondents 1 and 2 have not disputed the case of the petitioners by contesting the matter with regard to the involvement of the offending vehicle. It is not the case of the third respondent that its staff or officials have witnessed the accident in question and basing on their version it is disputing the case of the petitioners regarding the involvement of the offending vehicle in the accident in question. Though, the claimants have not examined the eye witnesses to prove the accident in question, but they relied on Ex.A1 attested copy of FIR and Ex.A8 attested copy of charge sheet. d. As per Ex.A1-FIR, the accident in question occurred on 17.08.2004 at 04.00PM and the information received at the police station on the same day at 05.00PM. The place of accident is at a distance of 15 KMs from the police station. In Ex.A1 FIR all the particulars regarding the manner of the accident including the involvement of the offending vehicle is referred. The offending vehicle driver name is also mentioned in the FIR. In Ex.A8 charge sheet, it is observed that on 17.08.2004 just a little prior to 04.00PM the deceased left the house of LW.5 to go to Komaragiripatnam on his Bajaj Boxer motorcycle bearing No.AP5G4743 and when he reached the outskirts of Srungavruksham village, the accused/ first respondent being the driver of the lorry bearing No.AP16W4757 drove the same in a rash and negligent manner and dashed behind the deceased. The front and rear wheels of the right side of the offending vehicle ran over the deceased and the head of the deceased crush and the deceased died instantaneously. e. The respondents placed no evidence to show that the contents of the charge sheet are incorrect. The front and rear wheels of the right side of the offending vehicle ran over the deceased and the head of the deceased crush and the deceased died instantaneously. e. The respondents placed no evidence to show that the contents of the charge sheet are incorrect. In K. Rajani and V. M. Satyanarayana Goud and others, 2015 ACJ 797 , this Court observed that : "when the insurance company came to know that the police investigation is 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". f. In the case of 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 touch stone of preponderance of probabilities. The standard of proof beyond reasonable doubt could not have been applied”. g. Nothing on record suggests that the Investigating Officer filed a charge sheet against the offending vehicle’s driver 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. The preponderance of probabilities is the touchstone for concluding rashness and negligence, as well as the accident's mode and manner of happening. 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. h. The Tribunal has not accepted the claimants case regarding the manner of the accident it has not considered the observations made by the Investigating Officer in the charge sheet making the offending vehicle’s driver is responsible for the accident. h. The Tribunal has not accepted the claimants case regarding the manner of the accident it has not considered the observations made by the Investigating Officer in the charge sheet making the offending vehicle’s driver is responsible for the accident. The charge sheet contents also support the claimants' case regarding the manner of the accident. The reading of the documents placed before the Tribunal clearly shows that the accident occurred due to rash and negligent driving of the offending vehicle’s driver. i. Thus, the 2nd respondent has not disputed the case as pleaded by the petitioners regarding the involvement of the offending vehicle in the accident. In a case where his vehicle is not involved in the accident, indeed, he could have contested the matter. j. This Court views that the driver of the offending vehicle is the best person to speak about the manner of the accident or non involvement of the offending vehicle in the accident. The Insurance company has not taken steps to prove its contention by summoning the offending vehicle's driver and owner. A standard rule is for the claimant to prove the negligence. But in accident cases, hardship is caused to the claimants as the actual cause of the accident is not known to them but is solely within the knowledge of the respondents who caused it. It will then be for the respondents to establish the accident was due to some other cause than their negligence. k. As already observed, the respondent contends that the offending vehicle was not involved in the accident. There is no hurdle for the 3rd respondent to examine either owner or driver of the vehicle to establish the said fact. Though the owner of the offending vehicle/lorry is shown as the second respondent in the claim petition, he has not chosen to contest the matter. Had his vehicle not been involved in the accident, indeed, he could have contested the case. When the involvement of the vehicle is not disputed by the owner, I don't find any reason to suspect the involvement of the vehicle in the accident, as the respondent/insurance company has not placed any material to create doubt about the involvement of the offending vehicle. The Tribunal has not properly appreciated the evidence on record. After careful reading of the evidence on record, this Court finds that the claimants have established the involvement of the offending vehicle. The Tribunal has not properly appreciated the evidence on record. After careful reading of the evidence on record, this Court finds that the claimants have established the involvement of the offending vehicle. Accordingly, the point No.1 is answered. POINT No.2: a. It is not in dispute that the deceased was employed in Central Industrial Security Force. To establish the earnings of the deceased, the claimants relied on Ex.A.6-salary certificate; Ex.A.9-copy of salary particulars of deceased; Ex.A10 copy of acquaintance register for the month of February, 2004 and Ex.A11 copy of particulars of employees and salaries payable to them. Ex.A.6-Salary slip shows that the deceased was getting an amount of Rs.7,058/-per month. Out of the said amount, it seems that the deceased was paying Rs.500/-towards GPF Subscription and Rs.550/-towards GPF Advance and Rs.150/- towards Festival Advance. As such this court views that the said amounts need not be deducted out of the salary. Ex.A6 also shows that he was serving in Central Industrial Security Force at NPC, Kaiga. Ex.A.9 details of salary issued by Assistant Commandant, DDO, CISF Unit shows also the same. Exs.A10 and A11 also support the particulars shown in Ex.A6. After considering the documents placed on record, this court considers the monthly earnings of the deceased at Rs.7000/-. Ex.A3 postmortem certificate and contents of petition shows that the age of the deceased as ‘37’ years. There is no serious dispute regarding the age. In absence of any certificate showing the exact age of the deceased, this court is inclined to consider Ex.A3 postmortem certificate. The age of the deceased is established by the postmortem certificate as ‘37’ years. Insofar as the future prospects are concerned, the Apex Court, in National Insurance Company Ltd. vs. Pranay Sethi, (2017) 16 SCC 680 , at paragraph 61, held that, (iii) While determining the income, an addition of 50% of the actual salary to the income of the deceased towards prospects, where the deceased had a permanent job and was below the age of 40, should be made. The addition should be 30% if the age of the deceased is between 40 to 50 years. If the deceased was between 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. The addition should be 30% if the age of the deceased is between 40 to 50 years. If the deceased was between 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) If the deceased was self-employed or on a fixed salary, an additional 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary computation method. The established income means the income minus the tax component. b. In this case, the deceased had a permanent job, and as such, this Court views that an additional 50% of the established income should be warranted towards future prospects. The monthly earnings, including future prospects, arrive at Rs.10,500/-(7,000+3,500). Following the same, the annual earnings of the deceased, including a future prospectus, can be assessed at Rs.1,26,000/-(Rs.10,500 x 12). c. Out of which, where the deceased is a married person and the dependants are 5 in number, 1/4th of the personal and living expenses of the deceased should be made i.e. Rs.31,500/-(1,26,000 x 1/4) and thereby, the contribution of the earnings of the deceased towards the family members would arrive at an amount of Rs.94,500/-(1,26,000-31,500). To arrive at the loss of earnings, the appropriate multiplier ‘15’ for the age groups of 36 to 40 as specified by the Apex Court in Sarala Verma v. Delhi Transport Corporation, 2009 ACJ 1298 is applied and arrived the loss of dependency at Rs.14,17,500/-(94,500 x 15). d. Insofar as the conventional heads is concerned, in Pranay Sethi’s case referred to supra, the Apex Court awarded a total sum of Rs.70,000/- under conventional heads, namely, loss of estate, loss of consortium, and funeral expenses. It was further held that the sum should be enhanced at 10% every three years. It was held thus in Paragraph 61 : "(viii) Reasonable figures under conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Res.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years." e. In Magma General Ins. Co. It was held thus in Paragraph 61 : "(viii) Reasonable figures under conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Res.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years." e. In Magma General Ins. Co. Ltd. v. Nanu Ram, 2018 ACJ 2782 , at paragraph 8, the Apex Court held that: "(8.6)…the Motor Vehicles Act is beneficial and welfare legislation. The Court is duty-bound and entitled to award 'just compensation, irrespective of whether any plea on that behalf was raised by the claimant. (8.7) A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (S.C.), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is the loss of consortium. In legal parlance, 'consortium' is a compendious term which encompasses 'spousal consortium', parental consortium', and filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse (Rajesh v. Rajbir Singh 2013 ACJ 1403 (S.C.). The parental consortium is granted to the child upon the premature death of a parent, for loss of 'parental aid, protection, affection, society, discipline, guidance and training. The filial consortium is the right of the parents to compensate in the case of the accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit." f. The Judgment in Pranay Sethi’s case was rendered in the year 2017. Therefore, the claimants are entitled to a 10% enhancement of conventional heads. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit." f. The Judgment in Pranay Sethi’s case was rendered in the year 2017. Therefore, the claimants are entitled to a 10% enhancement of conventional heads. g. In all, the claimants, wife and children, and the respondents 4 and 5, parents of the deceased, are entitled to the compensation as detailed below : Towards loss of dependency Rs.14,17,500/- Towards funeral expenses Rs.16,500/- Towards loss of estate Rs.16,500/- Towards spousal consortium Rs.44,000/- Towards parental consortium Rs.88,000/- Towards filial consortium Rs.20,000/- Total Rs.16,02,500/- h. After considering the material on record, this Court holds that the claimants are entitled to an amount of Rs.16,02,500/- with interest at 7.5% per annum. Given the discussion above in the appeal, this court warrants interference with the impugned order and allowed the claim petition. Accordingly, this point is answered. 20. In the result, the appeal is allowed in part with costs setting aside the order dated 28.01.2014 in M.V.O.P. No.972 of 2004 passed by the Chairman, Motor Accidents Claims Tribunal -cum-II Additional District Judge, Amalapuram and awarding compensation of Rs.16,02,500/-(Rupees Sixteen Lakhs Two Thousand Five Hundred Only) with interest at 7.5% per annum from the date of claim petition till realization against respondent Nos.1 to 3. Out of which, the 1st petitioner, wife of the deceased, is entitled to Rs.9,27,500/-(Rupees Nine Lakhs Twenty Seven Thousand Five Hundred Only) with accrued interest and costs, petitioners 2 and 3, children of the deceased, are entitled to an amount of Rs.2,50,000/-(Rupees Two Lakhs Fifty Thousand Only) each with accrued interest and the respondent No.4, father of the deceased, entitled to Rs.75,000/-(Rupees Seventy Five Thousand Only) with accrued interest and respondent No.5, mother of the deceased, is entitled to Rs.1,00,000/-(Rupees One Lakh only) with accrued interest. 21. The respondents 1 to 3 are directed to deposit the compensation within two months from the date of receipt of a copy of the order. On such deposit, respondents 4 and 5 i.e., parents of the deceased are entitled to withdraw their respective shares by filing an appropriate application before the tribunal. 22. After attaining the majority, the petitioners 2 and 3 i.e., children of deceased are entitled to 50% of their respective shares with accrued interest by filing petition before the Tribunal. On such deposit, respondents 4 and 5 i.e., parents of the deceased are entitled to withdraw their respective shares by filing an appropriate application before the tribunal. 22. After attaining the majority, the petitioners 2 and 3 i.e., children of deceased are entitled to 50% of their respective shares with accrued interest by filing petition before the Tribunal. The remaining amount shall be kept in fixed deposit in any Nationalized Bank for a period of two years. 23. The 1st petitioner i.e., wife of deceased is entitled to withdraw 50% of her share with accrued interest by filing application before the Tribunal. The remaining compensation shall be kept in fixed deposit in any Nationalized Bank for a period of two years. 24. The Advocate’s fee is fixed at Rs.15,000/-(Rupees Fifteen Thousand Only). 25. Miscellaneous petitions pending, if any, in this appeal shall stand closed.