MACT, TPT1MVOP.No..143/2008
Before the Chairman, Motor Accidents Claims Tribunalcum
VI Additional District Judge, (Fast Track Court)
Present: Sri H.Chandrasekhar,
Chairman, MACTcumV Additional District Judge,
FAC Chairman MACTcumVI Additional District Judge,(Fast Track
Court)
Tirupati.
Wednesday, the Eleventh (11 th ) day of March, 2015
M.V.O.P. No. 143/2008
Between:
1. Mallarapu Munemma.
2. Mallarapu Venkatasubramanyam .. Petitioners.
And:
1. V. Sridevi
2. The New India Assurance Co. Ltd., rep by its Divisional Manager.
3. APSRTC. Rep by its Managing Director,
Musheerabad, Hyderabad .. Respondents.
This petition coming before me on 18122014 for final hearing in the presence of Sri M.Nagaraju, Advocate for petitioners, Sri B.Pratap, Advocate for R2, Sri N.Yoganand, advocate for R3, R1 remained exparte and after hearing both sides and after considering the material on record, this court made the following:
ORDER
This petition is filed u/sec.166(1)(C) of Motor Vehicles Act r/w Rules 475 (1) of A.P.M.V. Rules, 1989 by the petitioners claiming compensation of Rs.2,50,000/ with interest at 18% p.a., due to the death of M.Krishnaiah in a motor vehicle accident that occurred on 03082005 at about 800 PM near Krishnapuram Thana, Tirupati.
02. The brief allegations of the petition are that the 1st petitioner is said to be the wife and the 2nd petitioner is said to be the son of the deceased by name Krishnaiah and he was said to be aged 65 years and drawing monthly pension of Rs.4,000/ and he retired from service in
APSRTC by the date of accident. The petitioners contend that on 0308 2005 at about 800 PM when the deceased was going by walk near
Krishnapuram Thana, Tirupati, R.1's bus bearing No. AP 03 V 4095 which was hired to the 3rd respondent was driven by its driver in a rash and negligent manner while talking over mobile phone and dashed the deceased from his behind, due to which he fell down that the front left
MACT, TPT2MVOP.No..143/2008 wheel of the bus ran over the deceased that immediately the injured was shifted to S.V.R.R.G.G., Hospital, Tirupati, where he succumbed to the injuries on 04082005 at about 00.35 hours that the SHO of Traffic
P.S.,Tirupati registered FIR in Crime No.105/2005 against R.1's driver under section 337 IPC and after investigation he filed charge sheet against R.1's driver under section 304A IPC . The petitioners contend that the deceased was contributing his entire earnings to his family that the 1st petitioner who is the wife of the deceased lost her husband at the fag end of her life that the accident occurred due to the rash and negligent driving of the R.1's bus by its driver during the course of his employment that since R.1 bus was insured with R2 and hired to R3, all the three respondents are jointly and severally liable to pay compensation to them, hence they filed the present petition claiming compensation of
Rs.2,50,000/ with interest at the rate of 18% p.a. from the date of petition till the date of realization.
03. The first respondent remained exparte.
04. The 2nd respondent filed counter denying and disputing the age, income and occupation of the deceased and the medical expenditure as alleged in the petition and submitted that the claim of the petitioners under different heads is excessive and exorbitant that similarly the interest claimed by them is also excessive. The 2nd respondent had further submitted that the driver of the bus had stopped the bus at Krishnapuram
Thana that after the passengers boarded the bus, the driver had started the bus slowly that the deceased who was old got confused and he himself came under the left front wheel of the bus which could not be anticipated by the bus driver. The 2nd respondent had further submitted that 1st respondent had insured his bus with them under passengers carrying commercial vehicle for the period from 04032005 to 0303 2006, subject to terms and conditions of the insurance policy. The 2nd respondent had further submitted that as per IMT 45, 1st respondent did not pay required premium to cover the risk if the vehicle is given on lease and therefore they are not liable to indemnify 1st respondent that since the bus was hired to the 3rd respondent without their knowledge and without paying any premium, they are not liable to pay any compensation
MACT, TPT3MVOP.No..143/2008 to the petitioners. The 2nd respondent had further submitted that the driver of the hire bus was under the control of the 3rd respondent and he was functioning as per the directions of the 3rd respondent that the route permit was in the name of the 3rd respondent, hence it is the 3rd respondent alone who is liable to pay compensation if any. The 2nd respondent had further submitted that there is a civil dispute pending between the 1st petitioner and one M.K.Munemma over the death benefits of the deceased on the point who is the wife of the deceased that since the said suit is not disposed off they cannot be penalized by way of interest that M.K.Munemma is proper and necessary party to the petition.
The 2nd respondent sought protection under section 147 to 149 and permission to contest the petition under section 170 of M.V. Act and prayed the tribunal to dismiss the petition with costs against it.
05. The R3 filed counter denying and disputing the age, income, occupation of the deceased, the manner of accident as alleged in the petition and submitted that there was no negligence on the part of the
R.1's driver that R1 had hired the bus with them as per the agreement that as per paras iv and v in the said agreement, respondents 1 and 2 alone are liable to pay compensation if any to the third parties. The 3rd respondent sought protection under sections 147 to 149 of MV. Act, hence prayed the tribunal to dismiss the petition with exemplary costs against it.
06. Basing on the above pleadings, the following issues had been settled for trial.
1. Whether the deceased died in a motor vehicle accident
that took place on 030820905 due to rash and negligent
driving of the driver of APSRTC bus bearing Reg. No.AP
03V4095?
2. Whether the petitioners who are being L.Rs of the
deceased are entitled to compensation ? If so, to what
amount and from whom?
3. To what relief?
MACT, TPT4MVOP.No..143/2008
07. On behalf of the petitioners PWs.1 to 4 are examined, Exs.A.1 to A.5 are marked. On behalf of R3, RW.1 is examined, Ex.B1 is marked.
On behalf of R2, Ex. B2 is marked with consent and no oral evidence was adduced for R2.
08. Heard both, perused records
09. Issue No.1:The petitioners contend that when the deceased was going by walk, he was knocked down by R.1's bus driver that the left front wheel of the bus which was hired to the 3rd respondent ran over the deceased causing multiple grievous injuries that the injured was immediately shifted to S.V.R.R.G.G., Hospital, Tirupati where he succumbed to injuries on the intervening night of 3/482005 at about 00.35 hours. The 2nd petitioner who is said to be son of the deceased is examined as PW1. He filed his chief affidavit by reiterating the contents in the petition. The relevant documents are marked as Exs.A1 to A5. It is the contention of the 2nd respondent that due to old age, the deceased could not observe the traffic and he himself came under the left front wheel of the bus and there is no negligence on the part of the bus driver.
When this was suggested to PW1, he denied the same but admittedly this witness has not witnessed the accident. It is further contention of the 2nd respondent insurance company that there is a civil dispute between the 1st petitioner and another woman who also claims to be the wife of the deceased. But in the counter 2nd respondent did not mention the suit number or the court in which the said suit is alleged to be pending. In the cross examination of PW.1 also the 2nd respondent company did not suggest the suit number or the court in which such suit is said to be pending, but however when this was suggested to PW.1 for R2, he denied the same. In the cross examination of PW1, it was suggested for 2nd respondent that one Ravi Sankar is the son of the deceased through another woman, but PW1 denied the same. However there is no such pleading in the counter filed by the 2nd respondent. Therefore the contention of the 2nd respondent company that another woman filed a suit to declare her as the wife of the deceased cannot be believed. Though the 2nd respondent company had raised this objection in the counter, 2nd respondent did not adduce any evidence in this aspect to prove that the
MACT, TPT5MVOP.No..143/2008 petitioners are not the legal heirs of the deceased. The petitioners examined PWs.2 and 3 who are said to be the eye witnesses to the accident. They filed their chief affidavits stating that the accident occurred due to rash and negligent driving of the bus driver. But they had admitted that though they were present at the scene of offence, they were not examined by the police. The petitioners summoned the defacto complainant who lodged report in this case, as PW.4. PW.4 who is now working as ASI of police at Nagalapuram P.S deposed that on 03082005 he was working as police constable in Tirupati Traffic police station that on that day he was posted on duty at Krishnapuram Thana from 600 PM to 1000 PM., that on that day at about 800 PM one hire bus came to
Krishnapuram Thana bus stop and it was stopped there that he found a crowd near the bus and immediately he rushed there and found the deceased with bleeding injuries on his legs near the left front wheel of the bus and immediately he had sent the injured to S.V.R.R.G.G., Hospital by an auto and he lodged a report under Ex.A.1 . In the cross examination for R2, he admitted that he had not seen the accident. But however the evidence of PWs.2, 3, Ex.A2 which is the certified copy of charge sheet filed against the R.1's bus driver shows the accident occurred due to rash and negligent driving of the bus driver only. Accordingly this issue is answered in favour of the petitioners.
10. Issue No.2: It is the contention of the 2nd respondent company that one M.K.Munemma filed a civil suit at Tirupati in respect of the death benefit of the deceased against the 1st petitioner, but as discussed above, 2nd respondent company did not mention the suit number or the court in which such suit is said to be pending. When this was suggested to PW.1, he denied the same. As discussed above though 2nd respondent contended that there is a suit pending against the 1st petitioner which is filed by one M.K. Munemma with regard to the death benefits of the deceased, they have not adduced any evidence to that effect. Therefore basing on the evidence on record and basing on Ex.A5 which is the family members certificate issued by Tahsildar, it is held that the petitioners are the only legal heirs of the deceased.
11. The petitioners claim that the deceased was getting
MACT, TPT6MVOP.No..143/2008 monthly pension of Rs.4,000/ after retiring from service in APSRTC but they have not filed any record to that effect. This has been admitted by
PW.1 also in his cross examination. The petitioners contend the age of the deceased as 65 years at the time of accident. A perusal of Exs.A3 and
A4 which are certified copies of postmortem report and inquest report reveals the age of the deceased as 65 years. Therefore the age of the deceased is taken as 65 years only. Since the petitioners failed to produce any record to show the monthly earnings of the deceased, the notional income of the deceased is taken as Rs.3,000/ per month. Since the age of the deceased is found to be 65 years, as per the table given by the Hon’ble
Supreme Court in Sarla Verma’s case the multiplier adopted is “5”. After deducting 1/3 of his income towards his personal expenses, the remaining 2/3 amount which is contributed to the family of the deceased comes to Rs.2,000/ per month and the annual contribution is
Rs.24,000/. When this is multiplied with multiplier '5', the compensation on account of loss of dependency comes to Rs.1,20,000/. Apart from it the 1st petitioner being the wife is awarded a sum of Rs.25,000/ towards loss of consortium. Apart from it the petitioners are awarded a sum of
Rs.10,000/towards loss of estate, Rs.25,000/ towards funeral expenditure, Rs.3,000/ towards transport expenditure, thus totally the petitioners are awarded a sum of Rs.1,83,000/ only.
12. The 2nd respondent insurance company contends that since
R.1's bus was hired with the 3rd respondent without their knowledge and since 1st respondent did not pay required premium to cover the risk in case of hiring the bus, it is not liable to indemnify 1st respondent and therefore it is not liable to pay any compensation to the petitioners. The 3rd respondent contends that since the bus driven by R.1's driver during the course of his employment and since R.1's bus is insured with R2, as per their agreement they are not liable to pay any compensation to the petitioners. In these aspects R3 had examined their Superintendent in the office of Regional Manager, ARSRTC, Tirupati as RW.1. In his chief examination, he deposed that R.1's bus was hired on 19032001 for five years. Ex.B1 is the agreement dated 19032005 and the agreement is valid till 18032006. RW.1 further deposed that 1st respondent alone is liable to pay compensation if any to the petitioners.
MACT, TPT7MVOP.No..143/2008
13. The learned counsel for the 2nd respondent had submitted that since the 1st respondent did not pay required premium as per IMT 45, 2nd respondent is not liable to pay compensation to the petitioners.
Therefore he prayed the court to dismiss the petition against the 2nd respondent. The learned counsel for the 3rd respondent APSRTC had submitted that since the insurance policy (Ex.B2) was in force on the date of accident, 2nd respondent cannot avoid its liability. In this aspect he had relied upon a judgment reported in 2011 ACJ 2145 S.C. in the case of
U.P. State Road Transport Corporation Vs. Kulsum and others wherein
Their Lordships held that when the insurance company had not denied the coverage of the insurance policy at the time of accident, the owner of the vehicle has not violated any terms and conditions of the policy and provisions of the Act, the insurance company is liable to pay compensation to the petitioners. The learned counsel for the 3rd respondent had further relied upon judgments reported in 2013 (1) ALD
644 (Full Bench) in the case of APSRTC, Hyderabad and another Vs.
B.Kanakaratnabai and others which is followed in the case of APSRTC,
Hyderabad Vs. Guguloth Keema and others which is reported in 2013
(6) ALD 379, wherein the Hon'ble full bench held that mere hiring of insured bus by its owner to APSRTC would not in any manner limit liability and accountability of Insurance Companies and notwithstanding hiring of insured buses by owners to APSRTC, insurance companies shall be solely and exclusively liable for payment of compensation arising out of third party claims. Therefore in view of the above said judgments, the respondents 1 and 2 alone are held liable to pay compensation to the petitioners. Accordingly this issue is answered.
14. Issue No.3: In the result, the petition is partly allowed by awarding just compensation of Rs.1,83,000/ payable by the respondents 1 and 2 only jointly and severally to the petitioners with proportionate costs and interest thereon at the rate of 7.5% per annum from the date of petition till the date of deposit. The petition against the R3 is dismissed.
The 2nd respondent is directed to deposit this amount within two months from the date of this award. The above said amount is apportioned as follows:
MACT, TPT8MVOP.No..143/2008 1st petitioner is awarded a sum of Rs.1,43,000/ including loss of consortium and the 2nd Petitioner is awarded and a sum of Rs.40,000/
On such deposit, the 1st petitioner is permitted to withdraw half of the amount in her share with proportionate costs and interest and her balance amount shall be kept in F.D. in any nationalized bank for a period of two years, 2nd petitioner is permitted to withdraw entire compensation amount with proportionate costs and interest. The petitioners 1 and 2 are entitled to costs and interest proportionately as per their share in the compensation amount. Advocate's fee is fixed at Rs.1,500/
Dictated to the Personal Assistant, transcribed by her,
corrected and and pronounced by me in open court, this the 11th day of
March, 2015.
CHAIRMAN,
Motor Accidents Claims Tribunalcum
V Additional District Judge,
FAC VI Additional District Judge,
(Fast Track Court) Tirupati.
Appendix of Evidence Witnesses examined on behalf of the petitioner: P.W.1: M.Venkata Subramanyam. PW.2: Girinath PW.3: G.D.M.Prasad PW.4: K.Varma Witnesses examined on behalf of Respondents RW.1: G.Kamalakshi Naidu Exhibits marked on behalf of the petitioner: Ex.A1: Certified copy of F.I.R. Ex.A2: Certified copy of charge sheet. Ex.A3: Certified copy of Postmortem report. Ex.A4: Certified copy of Inquest Report. Ex.A5: Certified copy of family members certificate. Exhibits marked on behalf of Respondents: Ex.B1: Copy of Agreement Ex.B2: True copy of insurance policy.
Chairman/MACT/TPT
Fair order in MVOP.143 of 2009
dt: 11032009
MACT, TPT9MVOP.No..143/2008 MACT, TPT10MVOP.No..143/2008
The brief allegations in the petition are that the petitioner is said to be aged about 28 years at the time of accident that she was selling vegetables and earning Rs.4,500/ per month at the time of accident that she was hale and healthy before the accident and she was contributing her earnings to her family that on 20122006 at about 600 PM, when the petitioner was going by walk at Tirumala bye pass road , near Sanjay Gandhi colony junction to Maruthi nagar Korlagunta, opposite to Victory bar and restaurant, R.1's motor cycle bearing No. AP03 S 8987 was driven in a rash and negligent manner and it dashed on the back side of the petitioner, due to which she fell down and sustained fracture in her left leg and knee that immediately after the accident sh was shifted to Balaji Hospital,
Korlagunta, Tirupati and after fist aid, she was shifted to S.V.R.R.G.G. Hospital, Tirupati where she was treated as inpatient for four days and thereafter she took treatment in a private hospital that due to the fracture she lost her income and she could not do vegetable business . She had further submitted that the accident occurred due to the rash and negligence of R.1's rider while discharge his duties as employee that R.1's motor cycle is validly insured with R2. She had further submitted that the SHO., Traffic P.S. Tirupati registered FIR in Cr.No.166/2006 against R.1's driver under section 338 IPC and under section 134 (a) of M.V. Act and later on after completion of investigation charge sheet is also filed against him, therefore both the respondents are liable to pay compensation to her, hence she filed the present petition claiming compensation of Rs.2,00,000/ with interest at the rate of 12% p.a. from the date of petition till the date of realization.
03. R1 remained absent , hence he was set exparte.
04. R2 filed written statement denying and disputing the age, income and occupation of the petitioner, the manner of accident as alleged in the petition, the nature of injures allegedly sustained by her, the nature of treatment, the alleged expenditure incurred by her. R2 had further submitted that the rider of motorcycle was going solely on the left side of the road and at that time the petitioner had suddenly crossed the road without ob serving the vehicles that though the rider of the motorcycle tried his level best to avoid the accident, the accident occurred due to the negligence of the petitioner only.
R2 had further submitted that the claim of the petitioner is excessive . R2 had further submitted that the rider of the motorcycle was not having valid driving license by the date of accident that R.1's motorcycle was not injured with them by the date of accident. R2 has further submitted that the rate of interest claimed by the petitioner is excessive. R2 sought protection under sections 147, 148 and 149 of MV Act, hence he prayed the
MACT, TPT11MVOP.No..143/2008 tribunal to dismiss the petition with costs.
04.Basing on the above pleadings, the following issues had been settled for trial.
1. Whether the petitioner sustained injuries in motor accident on 20122006 due to rash and negligent driving of a motor cycle bearing No. AP 03 S 8987 by tis driver as pleaded by the petitioner?
2. Whether the petitioner is entitled for compensation ? if so, what amount and from whom?
3. To what relief?
05. On behalf of the petitioner, PW.1 is examined, Exs.A.1 to A.4 are marked.
On behalf of R2 copy of insurance policy is marked as Ex.B1 with consent and no oral evidence has been adduced.
06. Heard both perused records.
07. Issue No.1: The petitioner contends that when she was going by walk , she was knocked down by R.1's rider of the motorcycle and she sustained fracture as discussed above. The petitioner is examined as PW1 by filing her chief affidavit by reiterating the contents in the petition. The relevant documents are marked as Exs.A1 to
A4. In the cross examination she deposed that the place of accident is a double road when it was suggested to her that the accident occurred due to her negligence only, she denied the same. A perusal of Ex.A1 which is certified copy of FIR shows on the report lodged by the petitioner, the SHO Traffic PS., Tirupati registered FIR against the R.1's rider under section 337 IPC. A perusal of Ex.A3 shows that after completion of investigation, the Investigating Officer filed charge sheet against R1 rider for the offence punishable under section 338 IPC , sec. 134 (a) of MV. Act. Thus the evidence of PW.1,
Exs.A1 and A2 clearly reveal that the accident occurrence due to rash and negligent riding of motor cycle of R1. Accordingly this issue is answered in favour of the petitioner.
MACT, TPT12MVOP.No..143/2008
09. Issue No.2: The petitioner claims that she was earning Rs.4,500/ per month by selling vegetables and she used to go on the spot, by putting the vegetables in a basket. In the cross examination she admitted that there is no record to show that she was doing vegetable business . A perusal of Ex.A3 which is certified copy of wound certificate shows the petitioner sustained the following injuries:
1.Contusion over left leg.
2.Deformity of left knee joint
Xray of left knee, crack fracture lateral Tibial condigli ,the second injury is said to be grievous in nature and the first injury is simple in nature Therefore the petitioner is awarded a sum of Rs.1,500/ towards one simple injury , Rs.15,000/ for one fracture.
Though the petitioner contended in the petition and in her chief affidavit that due to injuries she could not continue her business and she sustain4ed permanent disability , but the petitioner had not field any disability certificate or she had not examined any doctor to prove her alleged functional disability. Further the petitioner had not filed any medical bills. However the petitioner is awarded a sum of Rs.10,000/ towards medical expenditure, extra nourishment and attendant charges totally the petitioner is awarded a sum of Rs.26,500/ only payable by the respondents 1 and 2 jointly and severally to the petitioner. Accordingly this point is answered.
13. In the result, the petition is partly allowed by awarding just compensation of Rs.26,500/ payable by the respondents jointly and severally to the petitioner with proportionate costs and interest at the rate of 7.5% per annum from the date of petition till the date of deposit. R2 is directed to deposit this amount within two months. The petitioner is permitted to withdraw the entire compensation amount with proportionate costs and interest. Advocate's fee is fixed at Rs.1,500/ only.
Dictated to the Personal Assistant, transcribed by her, corrected and
pronounced by me in open court, this the 4th day of February, 2015.
CHAIRMAN,
Motor Accidents Claims Tribunalcum
V Additional District Judge,
MACT, TPT13MVOP.No..143/2008
Tirupati.
Appendix of Evidence
Witnesses examined on behalf of the petitioners:
PW.1: M.Usha
Witnesses examined on behalf of the respondent:
Nil
Exhibits marked on behalf of the petitioners:
Ex.A1: Certified copy of FIR in Cr.No. 166/2006
Ex.A2: Certified copy of charge sheet,
Ex.A3: Certified copy of wound certificate,
Ex.A4: Certified copy of Accident infrom report under Form 54
Exhibits marked on behalf of the R2:
Ex.B1: copy of Insurance policy
Chairman/MACT/TPT.