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2023 DIGILAW 54 (AP)

Kalluru Lakshmi Devi v. A. P. S. R. T. C.

2023-01-05

T.MALLIKARJUNA RAO

body2023
JUDGMENT : 1. Aggrieved by the order dated 07.03.2009 in M.V.O.P. No.440 of 2005 passed by the Chairman, Motor Accidents Claims Tribunal-cum-District Judge, Nellore, the claimants filed M.A.C.M.A. No.1822 of 2014, whereas the respondent-A.P.S.R.T.C., represented by its Managing Director, Musheerabad, Hyderabad, has filed M.A.C.M.A. No.566 of 2022. As both appeals arise out of the orders passed in M.V.O.P. No.440 of 2005, both appeals are disposed of by common Judgment. 2. For the sake of convenience, hereinafter, the parties will be referred to as per their rankings in the M.V.O.P. as claimants and respondents. 3. The claimants have filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.9,50,000/- for the death of Kalluru Venkata Reddy alias Venkateswara Reddy, who died in the accident. The said Kalluru Venkata Reddy alias Venkateswara Reddy will hereinafter be referred to as 'the deceased’. 4. The claimant's case is that on 12.02.2005 at about 7.30 PM, the deceased and one Penchalaiah were proceeding from Kanisiripalem by walk towards Buchireddipalem village, when they reached near Achari saw mill on Bombay road, Buchireddipalem, the R.T.C. bus bearing No.AP10 Z 4356 (hereinafter referred to as 'offending bus') being driven by its driver in a rash and negligent manner at high speed without blowing the horn, came from Atmakur side and hit the deceased from his behind. As a result of which, the deceased sustained bleeding injuries on his head and died on the spot. 5. It is not in dispute that the first claimant is the wife, claimants 2 and 3 are minor children, claimants 4 and 5 are sisters, and 6th claimant is the father of the deceased and is dependent on him. 6. The relationship between the claimants with the deceased, as referred to in the claim petition, is not disputed by the respondent. 7. The respondent filed its counter, submitting that the on the date and time of the accident, the offending bus came from Anasuya Nagar to go to Nellore and near Buchireddipalem, they saw a group of people on the left side of the road. The offending bus stayed at Buchireddipalem for about 10 minutes. Nobody was informed about the accident; the bus's passengers stated that the bus was not involved in any accident at that time. The offending bus stayed at Buchireddipalem for about 10 minutes. Nobody was informed about the accident; the bus's passengers stated that the bus was not involved in any accident at that time. The news was published in the newspaper dated 12.02.2005 to the effect that the deceased died in a road accident caused by an unidentified vehicle. It shows that the offending bus was not involved in the accident. The dependency of the claimants and the income of the deceased are disputed. The claim is excessive and untenable. 8. Based on the pleadings, the Tribunal framed appropriate issues. During the trial, on behalf of claimants, P.Ws.1 and 2 were examined and marked Exs.A.1 to A.5. On behalf of the respondent, R.W.1 got examined, and no documents were marked. 9. The learned Tribunal, after evaluating the evidence on record, held that the accident occurred due to the rash and negligent driving of the offending bus driver, which resulted in the death of the deceased, awarded compensation of Rs.3,83,500/- with interest at 7.5% per annum from the date of the petition till the date of realization. 10. Heard both the learned counsel. 11. Learned counsel for the claimants/appellants in M.A.C.M.A. No.1822 of 2014 contended that the Tribunal granted less compensation without properly appreciating the oral and documentary evidence on record. The Tribunal erred in assessing the income of the deceased as Rs.2,700/- per month; it ought to have considered that the deceased was doing husk business and was earning Rs.15,000/- per month; the Tribunal erred in compensating only Rs.53,500/- to the father of the deceased (father in law of the 1st appellant). The Tribunal erred in not considering the Ex.A4-M.V.I report; the Tribunal erred in not considering the love and affection, and mental suffering of the wife, parents, and children of the deceased. 12. Learned counsel for the respondent/appellant in M.A.C.M.A. No.566 of 2022 contended that the Tribunal erred in awarding excess and exorbitant compensation for the death of the deceased; the Tribunal erred to see that one Penchalaiah who is walking along with the deceased was neither examined as a witness nor reported about the accident to the police. 12. Learned counsel for the respondent/appellant in M.A.C.M.A. No.566 of 2022 contended that the Tribunal erred in awarding excess and exorbitant compensation for the death of the deceased; the Tribunal erred to see that one Penchalaiah who is walking along with the deceased was neither examined as a witness nor reported about the accident to the police. The Tribunal erred to see that PW.2, who is an eye witness to the accident, neither tried to stop the offending bus involved in the accident nor lodged any complaint in the police station about the accident; the Tribunal erred to see that the offending bus never involved in the accident; the Tribunal erred in taking the monthly income of deceased at Rs.2,700/- and applied multiplier 17 in the absence of any acceptable evidence on record; the Tribunal erred in awarding Rs.15,000/- towards consortium. 13. Now the points that arise for consideration are : 1. Whether the Tribunal is justified in holding that the death of the deceased occurred due to the rash and negligent driving of the offending bus driver? 2. Whether the compensation awarded by the Tribunal is just and reasonable, or does it require enhancement? POINT No.1: 14. The first petitioner was examined as PW.1; she is the deceased's wife. Admittedly, she is not an eyewitness to the accident. The claimants got examined PW.2. K. Venkateswarlu, to prove the manner of the accident, is also cited as a witness in Ex.A5 Charge sheet filed against the offending bus driver in relation to the accident in question. His evidence goes to show that on 12.02.2005 at about 7.30 PM, while he was standing near Achari Sawmill on Bombay road at Buchieddipalem, he noticed that the deceased was proceeding by walk towards Buchireddipalem and the offending R.T.C. bus driven by its driver in a rash and negligent manner at high speed came from Atmakur side, hit the deceased from the behind, as a result of which, the deceased fell on the road, sustained injuries on his head and died on the spot. 15. The respondent got examined the driver of the offending bus as RW.1. He admitted the registration of the crime against him in relation to the accident in question. The respondent has not chosen to examine any passengers who travelled in the bus at the time of the accident to establish the non-involvement of the offending bus. 15. The respondent got examined the driver of the offending bus as RW.1. He admitted the registration of the crime against him in relation to the accident in question. The respondent has not chosen to examine any passengers who travelled in the bus at the time of the accident to establish the non-involvement of the offending bus. Though it is contended that it is published in Newspapers that the accident was caused by the unidentified vehicle, the respondent has not chosen to file Newspapers. To show the involvement of the offending bus in the accident, the petitioner relied on Ex.A1-certified copy of the F.I.R. and Ex.A5 copy of the charge sheet. 16. The case of the claimants that the death of the deceased occurred due to injuries sustained in the accident is not disputed. Ex.A2-Postmortem report and Ex.A3-copy of Inquest report also establishes the fact. As rightly pointed out by the Tribunal, Ex.A4-Motorvehicle Inspector reports do not show that the accident was due to any mechanical defect of the offending vehicle. The contents of Ex.A1-F.I.R show the R.T.C bus involvement in the accident. As per Ex.A1-F.I.R, the offence occurred on 12.02.2005 between 7.00 PM to 7.30 PM, whereas on the same day, at about 8.30 PM, the report was lodged by PW.2 about the accident. It is not the case of the respondent that the said bus was not plied on that route during the time of the accident. The said fact can be proved by placing documentary evidence before the Court. 17. As seen from the record, the claimant also relied on Ex.A5, the certified copy of the charge sheet. The contents of the charge sheet show the involvement of the offending vehicle in the accident. It is clearly alleged that on 12.02.2005 at 7.30 PM, the accused (G. Janardhan) drove the R.T.C bus AP10-Z-4356 rashly and negligently while proceeding from Buchi towards the Jonnavada and dashed against the deceased. No evidence is placed by the respondent to show that the contents of the charge sheet are incorrect. 18. In a decision between K. Rajani and others V. M.Satyanarayana Goud and others, 2015 ACJ 797 , the Hon’ble High Court is pleased to observe that : “when the insurance company came to know that the police investigation is false, they must also challenge the charge sheet in appropriate proceedings. 18. In a decision between K. Rajani and others V. M.Satyanarayana Goud and others, 2015 ACJ 797 , the Hon’ble High Court is pleased to observe 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 totally incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false”. 19. 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”. 20. There is nothing on record to suggest that the Investigating Officer filed a charge sheet against the driver of the A.P.S.R.T.C bus without conducting a proper investigation. Also, it is difficult to assume that the Police Officer could fabricate a case against the driver of the offending bus in the absence of evidence. 21. In proceedings 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. As such, it is by now well settled that even F.I.R. 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 and for reaching a conclusion. The preponderance of probabilities is the touchstone for arriving at a conclusion regarding rashness and negligence as well as the accident mode and manner of happening. 22. The reading of the documents placed before the Tribunal clearly shows that the accident occurred due to rash and negligent driving of the driver of the A.P.S.R.T.C. bus. The preponderance of probabilities is the touchstone for arriving at a conclusion regarding rashness and negligence as well as the accident mode and manner of happening. 22. The reading of the documents placed before the Tribunal clearly shows that the accident occurred due to rash and negligent driving of the driver of the A.P.S.R.T.C. bus. The Tribunal has accepted the claimant's case regarding the observation made by the Investigating Officer about the manner of the accident and the charge sheet filed against the driver of A.P.S.R.T.C., causing the driver of A.P.S.R.T.C., bus responsible for the said accident. As already observed, the contents of the charge sheet also support the claimants' case regarding the manner of the accident. The respondent places no material to show the non-involvement of the offending bus in the accident. After carefully reading the material on record, this Court views that the finding of the Tribunal that the accident occurred due to rash and negligent driving of the offending bus driver holds good. POINT No.2: 23. As per claimants, the deceased used to do husk business for eking of his livelihood. Ex.A5–charge sheet also referred to the occupation of the deceased as a business. However, no evidence is placed to show the earnings of the deceased. In the absence of such evidence on record, this Court finds that the deceased's earnings can be taken as Rs.3,000/- per month. In a case like this, where there is no specific evidence as to the income of the deceased, the Apex Court in Lakshmi Devi and others Vs. Mohammad Tabber, 2008 ACJ 488 held that, in today's world, even common labour can earn Rs.100/- per day. Based on the above principle, this Court can safely assess the monthly earnings of the deceased at Rs.3,000/- . But the Tribunal wrongly assessed the income of the deceased notionally at Rs.2,700/- per month. 24. As per the claimants case, the deceased was aged 32, whereas the document placed on behalf of the claimants, Ex.A2 and Ex.A3 show the age of the deceased as 34. In the absence of a date of birth certificate or other relevant material documents to show the exact age of the deceased, the Tribunal is justified in assessing the age of the deceased as 35 years. 25. In National Insurance Company Limited Vs. In the absence of a date of birth certificate or other relevant material documents to show the exact age of the deceased, the Tribunal is justified in assessing the age of the deceased as 35 years. 25. In National Insurance Company Limited Vs. Pranay Sethi, 2017 ACJ 270, wherein it is held in case the deceased was self-employed, an additional 40% of the established income should be the warrant where the deceased was below the age of 40 years. Given the same, the annual earnings of the deceased, including a future prospectus, can be assessed at Rs.3,000/- + 40% = Rs.4,200/- . 26. Considering the fact that the deceased has got four dependents, including his father and considering the size of the dependents and in view of the principle laid down in Sarala Verma v. Delhi Transport Corporation, 2009 ACJ 1298 , this Court views that 1/4th of the earnings of the deceased to be deducted towards personal and living expenses. After deduction of 1/4th of the earnings as observed above, the monthly earnings, including the future prospectus of the deceased after deducting personal expenses, would arrive at Rs.3,150/- (i.e., Rs.4,200/- (-) Rs.4,200/- (x) 1/4). 27. To assess the loss of earnings, this Court relied on the Judgment of the Apex Court in Sarla Verma’s case, in which the Apex Court provided the table of the multiplier to be considered for the claims made under Section 166 of the Motor Vehicles Act. Hence, the multiplier for the persons aged between 31 to 35 is provided as ‘16'. Therefore, the loss of dependency can arrive at an amount of Rs.6,04,800/- (Rs.3,150/- x 12 x 16). 28. 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 (SC), 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. (8.7) A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (SC), 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 (SC). 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." 29. 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. In all, the claimants are entitled to the compensation as detailed below : Towards loss of dependency Rs.6,04,800/- Towards funeral expenses Rs.16,500/- Loss of Estate Rs.16,500/- Spousal consortium Rs.44,000/- Parental consortium Rs.88,000/- Filial consortium Rs.10,000/- Total Rs.7,79,800/- 30. As a result, the appeal in M.A.C.M.A.No.566 of 2022 is dismissed without costs. The appeal in M.A.C.M.A. No.1822 of 2014 is partly allowed without costs, enhancing the compensation from an amount of Rs. 3,83,500/- to an amount of Rs.7,79,800/- (Rupees Seven Lakhs Seventy Nine Thousand Eight Hundred only), with interest at 7.5% per annum as awarded by the Tribunal. The respondent-A.P.S.R.T.C is directed to deposit the enhanced compensation amount, excluding the amount deposited, if any, within two months from the receipt of a copy of this order. Out of the enhanced compensation amount, an amount of Rs.50,000/- shall be paid to the 6th petitioner, who is the father of the deceased. The respondent-A.P.S.R.T.C is directed to deposit the enhanced compensation amount, excluding the amount deposited, if any, within two months from the receipt of a copy of this order. Out of the enhanced compensation amount, an amount of Rs.50,000/- shall be paid to the 6th petitioner, who is the father of the deceased. In the remaining enhanced compensation with interest, 1st petitioner is entitled to 50% of the enhanced compensation with interest; the 2nd and 3rd petitioners are entitled to 25% each of the enhanced compensation amount with interest. On such deposit, the claimants are permitted to withdraw their respective shares on filing appropriate applications before the Tribunal as per the Tribunal's award. 31. Miscellaneous Petitions pending, if any, in these appeals shall stand closed.