Sri P. MutyalaNaidu

IN THE MOTOR ACCIDENTS CLAIMS TRIBUNAL (DISTRICT

JUDGE), VIZIANAGARAM

Present: Sri P. Mutyala Naidu, M.A., B.L., Chairman (District Judge), Motor Accidents Claims Tribunal, Vizianagaram.

Monday, this the 28th day of October, 2013.

M.O.P.No.447/2008

Between:

1.Kubireddy Achama Naidu (died).

2.Kubireddy Kamulamma

3.Allu Padma

4.Kubireddy Ramesh

5.Kubireddy Prasad (Petitioners 3 to 5 are added as L.Rs. of the deceased 1st petitioner, as per order in I.A.1766/2012, dt.07.11.2012) …Petitioners And:

1.M. Rajendar Reddy

2.A. Prabhakar Reddy…Respondents

This petition coming on 22.10.2013 for disposal before me in the presence of Sri G. Rama Mohana Rao, Advocate for petitioners and of Sri D. Swaroop Kumar, Advocate for respondents 1 and 2 and having stood over for consideration till this day, this Tribunal passed the following:-

O R D E R

1.This petition is filed under Section 163-A of M.V. Act claiming a total compensation of ` .5,00,000/- for the death of the deceased Kubireddy Ravi in a motor accident, which took place on 08.05.2007 at 21:00 hours on Parigi Road in

Shadnagar P.S. Limits in Mahaboobnagar District, by his parents.

2.The case of the petitioners is briefly stated as follows:

Originally, this petition was filed by the parents of the deceased Ravi pending petition, the 1st petitioner, who is the father of the deceased died and petitioners 3 to 5, who are his sister and brothers were impleaded. The crime vehicle involved in the accident is a tractor-trailer bearing No. AP 22 T 6211 and 6212; on 08.05.2007, at 21:00 hours the deceased and other workers travelling in the company jeep from Shadnagar to Mogiligadda in order to attend night shift duty, when they are proceeding near petrol bunk at Parigi road, the 1st respondent drove the tractor-trailer in a rash and negligent manner and dashed the jeep resulting in the deceased Ravi sustained severe injuries to his right hand, right leg and head and immediately, he

M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.447/2008 (death)2 was taken to Community Health Centre, Shadnagar where he was given first aid and he was being taken to NIMS Hospital, Hyderabad, but he died at 22:00 hours, while shifting to NIMS Hospital. The deceased worked as a factory worker at Kediya Iron

Company, Molligedda village, Mahaboobnagar district and was earning `.8,500/- per month at the time of accident; the petitioners are dependants on the deceased; due to the sudden death of the deceased, they lost their love and affection and bread earning member of the family.

3.The contention of the respondents 1 and 2 is, that the 1st respondent who is the driver of the tractor-trailer got a valid driving license to drive the vehicle, the jeep was coming in opposite direction with more passengers than permitted in a high speed and tried to overtake the vehicle and in that process came very nearer to the tractor and inspite of the efforts made by the 1st respondent to avoid the crash, the jeep driver, himself, dashed the tractor; the driver and owner of the jeep are having very much influence and got managed the police to register the case against the 1st respondent even though the accident occurred due to the negligence of the jeep driver only.

4.This is a case arriving out of a collision and, therefore, the petition is liable to be dismissed for non-joinder of necessary parties. It is further contended that the proposed legal representatives of the 1st respondent did not file any documentary evidence to prove that they are the legal representatives of the deceased. The petitioner No.3 is a married women, who was married to one Srinivasa Rao of

Dharmvaram village, as such she is not a dependent on her parents; petitioners 4 and 5 are male members aged 30 and 29 years respectively at the time of filing of the petitioner, and, they are also not the dependants on the deceased.

5.On the pleadings, the following issues are settled for enquiry:

1.Whether the accident was occurred resulting death caused to Kubireddy Ravi due to involvement of the vehicle Tractor-Trailer bearing No. AP 22 T 6211 and 6212?

2.Whether the petitioners are entitled for compensation? If so, what quantum and what is the liability of the respondents?

3.To what relief?

6. During enquiry, on behalf of the petitioners, the 2nd petitioner K.

Kamulamma was examined as P.w.1. Exs.A.1 to A.5 are marked for the petitioners.

M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.447/2008 (death)3

No witnesses were examined and no documents were marked on behalf of the respondents 1 and 2.

7.Issue No.1 :

Whether the accident was occurred resulting death caused to Kubireddy Ravi due to involvement of the vehicle Tractor-Trailer bearing No. AP 22 T 6211 and 6212?

This petition is filed under section 163(a) of M.V. Act, therefore, it is not incumbent upon the petitioners to prove the rashness or negligence or otherwise on the part of the 1st respondent. What is required is that the petitioners to prove that the accident took place, when the vehicle was in motion on a public road. In fact, the factum of accident and that the said accident occurred in a public road is not disputed by the respondents 1 and 2 also. Besides this fact, the petitioners examined P.w.1 and filed Ex.A.1, copy of F.I.R., in Cr. No.186/2007 of Shadnagar P.S., Ex.A.4 is true copy of charge sheet and Ex.A.5, inquest report. The above said documents also would show that the accident took place, when the vehicles were in motion on a public road.

8.At this juncture, it is relevant to consider the plea taken by the respondents 1 and 2 in this regard. It is specifically pleaded in the counter that the accident took place only due to the rash and negligent driving of the driver of the jeep and accident could not be averted despite the best efforts made by the 1st respondent.

The other alternative plea is that it is a case of collision between two vehicles.

9.In the counter, the respondents have contended that the petition itself is liable to be dismissed for non joinder of necessary parties i.e. the driver and owner of the jeep, in which the deceased Ravi was travelled. However, in the written arguments filed by the Advocate for the respondents, it is mentioned that impleading one of contributory choice is left to the claimant, he relied on a decision reported in

P.Rajagop.al Reddy v. A.P. State Road Transport Corporation, Hyderabad 1 for the proposition that:

“A claim cannot be dismissed in toto on the ground of non joinder of owner of Insurer of the opposite motor cycle and impleading one of the contributory negligence left to the claimant.” 1 2010(6) ALD 521

M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.447/2008 (death)4

In view of the ratio laid down in the aforesaid decision, the petition need not be dismissed for non-joinder of the driver and owner of the jeep.

10.It is to be decided as to the onus of the proof i.e. on whom the burden lies to prove that the accident took place due to the rash and negligent driving of the driver of the jeep or that it is a case of collision between jeep and tractor-trailer. I have, already, pointed out that this petition is filed U/s.163(a) of M.V. Act and the petitioners are not expected to adduce evidence to prove the rashness or negligence on the part of the 1st respondent.

11.Therefore, the burden lies on t he respondents to prove that it is a case of collision. The learned Counsel for the respondents has argued that mere filing charge sheet against the 1 st respondent is not sufficient to conclude that he is negligent and the petitioners have to place evidence to prove that 1 st respondent drove the vehicle in a rash and negligent manner. He cited, the following two decisions and other decision in support of his arguments:

1.Shamshuddin and another v Atta Anaruddin and another 2 for the proposition that:

“negligence of a person cannot be judged merely on the ground that he was charge sheeted”

2.Agnuru Jaya Ramulu v. Mohammed Afzal Miyan and another 3 for the proposition that:

“on a collision between two vehicles taken place only when drivers of both vehicles are negligent and when claimants failed to produce scene of offence, Panchanama prepared by police, adverse inference has to be drawn against the claimants”

12.I have already pointed out that the burden lies on the respondents to prove the rashness and negligence on the part of the driver of the jeep or that it is a case of collision between two vehicles. Though the respondents 1 and 2 have not adduced any evidence and filed any documents, the documents filed by the petitioners Exs.A.1, A.4 and A.5 disclose that it is a case of head on collision between the crime vehicles Tractor-Trailer and jeep. In a case of head on collision, 2 2006(6) AL:T 147 3 2006 ACJ 855

M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.447/2008 (death)5 the liability of the respondents 1 and 2 can be considered on issue No.2. Hence, this issue is answered accordingly.

13.Issue No.2:

Whether the petitioners are entitled for compensation? If so, what quantum and what is the liability of the respondents?

The evidence of P.w.1, Exs.A.2, A.4 and A.5 would disclose that the deceased Ravi died due to the injuries sustained in the accident in question. The other consideration is the age in order to decide the multiplier. Since the deceased is unmarried and the claimants are his parents, his age is not relevant but the age of the mother of the deceased is relevant. As per the contents of the petition, the age of the 2nd petitioner, the mother of the deceased is mentioned as 50 years. Therefore, basing on the said age, appropriate multiplier has to be decided. The learned counsel

for the respondent has argued that the petitioners have not filed any documents to

prove that the deceased was working as a worker in Kedia Iron Company, Mogiligadda village, Mahaboobnagar district and he was earning `.8,500/- per month, and in the cross-examination, P.w.1 admitted that she has not filed the salary certificate of her son.

14. Ex.A.1 is the earliest document, in this document, it is clearly mentioned that the deceased was working as a worker in Kedia Iron Factory along with the other persons travelling in the jeep. The said fact was also incorporated in Ex.A.4, charge sheet and Ex.A.5, inquest report. Thus, the documents filed by the petitioners coupled with the evidence of P.w.1 clearly indicate that the deceased was working as a worker in Kedia Iron Company, but what is lacking is that there is no proof of exact income, of the deceased, per month.

15.At this juncture, a little bit of guess work is required. In the country side, in Mahaboobnagar District, and in these parts, the unskilled labour is earning not less than `.3,000/- per month. The deceased was a factory worker and he is expected to earn much more than the said amount.

16.Therefore, it would be just and proper to attribute a monthly income of `.5,000/- to the deceased, the yearly income is `.60,000/-. The deceased is an

M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.447/2008 (death)6 unmarried and in case of an unmarried person, what is the amount that could be deducted towards pleasure and necessities is the next question.

17.The deceased being an unmarried expected to spend 50% of his income towards his pleasure and necessities. Therefore, the residue is `.30,000/-.

The age of the mother of the deceased i.e. the 2nd petitioner is 50 years. The appropriate multiplier for the age of 50 to 55 years is 11. Therefore, the dependency arrived at `.3,30,000/- (Rs.30,000 x 11). Besides this compensation, the petitioners are also entitled for a sum of `.1,000/- towards transport charges and `.25,000/- towards funeral expenses. The petitioners are also entitled for a sum of `.15,000/- as compensation towards loss of estate. Thus, the total compensation is arrived at `.3,71,000/- . I have already referred to the following two decisions i.e. (1) 2006 ACJ 855 (Agnuru Jaya Ramulu v. Mommed Afzal Mayan and another) and (2) 2006(6)

ALT 147 (Shamsuhuddin and another v. Atta Anuruddin and another) and in view of the reasons laid down in the aforesaid decisions, since the accident took place due to 50% negligence of the driver (R.1) of the Tractor-Trailer and 50% due to negligence on the part of the jeep driver in a case of head on collision, the respondents 1 and 2 are liable to pay 50% of compensation and the remaining 50% amount of compensation has to be paid by the driver and owner of the jeep. In this case, the petitioners have not impleaded the driver and owner of the jeep and as such, they have to forego 50% of their claim and they are entitled to recover 50% of the amount from R.1 and R.2 which comes to `.1,85,500/- (Rupees One Lakh Eighty Five thousand Five Hundred only).

18.The next question is about apportionment of the compensation among the petitioners. It is contended on behalf of the respondents that the petitioners 3 to 5 are not dependents on the deceased. Since the petitioner No.3 is married living with her husband, petitioners 4 and 5 are majors and earning their own income. The learned counsel for the petitioners has argued that the petitioners 3 to 5 are brought on record as legal representatives of 1st petitioner, who is their father and therefore, the petitioners 3 to 5 are entitled for compensation. P.w.1, in her cross-examination, admitted that the 3rd petitioner who is the daughter is married and her husband is doing agriculture. Therefore, it is apparent that she is not dependent either on the deceased or the 1st petitioner-father. Hence, the 3rd petitioner is not entitled to compensation.

M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.447/2008 (death)7

The ages of the petitioners 4 and 5 are elicited from P.w.1 but nothing has been brought out that they are living separately from 1st petitioner and the deceased and they have got their own income. As such, petitioners 4 and 5 cannot be excluded from claiming compensation on the ground that they are not dependants on the 1st petitioner and the deceased.

19.The ultimate analysis on the point is that the petitioners 2,4 and 5 are entitled to apportion the compensation and out of them, 2nd petitioner is entitled for a lion’s share.

20.Issue No.3:

To what relief?

In the result, this petition is partly allowed with proportionate costs awarding total compensation of ` .1,85,500/- (Rupees one lakh eighty five thousand five hundred) with interest at 06% p.a. from the date of petition till the date of realization.

Respondents 1 and 2 are jointly and severally liable to pay the said amount and they are directed to deposit the said amount into the Court within two months.

The total compensation of `.1,85,500/- shall be apportioned among the petitioners 2 to 5 as depicted below:

2nd petitioner…`.1,05,500/- 4th petitioner …`. 40,000/- 5th petitioner…`. 40,000/-

The petitioners 2, 4 and 5 are permitted to withdraw the entire amount of their respective shares with accrued interest by filing separate applications after deposit is made.

The claim of the 3rd petitioner is dismissed without costs.

Advocate’s fee is fixed at `.1,500/-.

Typed to my dictation, corrected and pronounced by me in open Court, this the 28th day of October, 2013.

Sd./- P. Mutyalanaidu. Chairman Motor Accidents Claims Tribunal Vizianagaram

M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.447/2008 (death)8

APPENDIX OF EVIDENCE

Witnesses Examined

For Petitioner:For Respondents:

P.w.1: K. KamulammaNone

Exhibits Marked

For Petitioner:

Ex.A.1:--:True copy of F.I.R in Cr.No.186/07 of Shadnagar PS Ex.A.2:--:Tue copy of Postmortem Certificate Ex.A.3:--:True copy of Motor Vehicles’ Inspector’s report Ex.A.4:--:True copy of Charge sheet Ex.A.5:--:Inquest Report

For Respondents:NIL

Sd./- P. Mutyalanaidu. Chairman Motor Accidents Claims Tribunal Vizianagaram

M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.447/2008 (death)9

Date of presentation : 22.07.2008. Date of filing :12.08.2008.

IN THE MOTOR ACCIDENTS CLAIMS TRIBUNAL (DISTRICT JUDGE),

VIZIANAGARAM

Present: Sri P. Mutyala Naidu, M.A., B.L., Chairman (District Judge), Motor Accidents Claims Tribunal, Vizianagaram.

Monday, this the 28th day of October, 2013.

M.O.P.No.447/2008.

Between:

1. Kubireddy Achama Naidu (died).

2. Kubireddy Kamulamma, w/o. late Chama Naidu, Hindu, aged about 50 years, house hold duties, residing at Vhina Madhupada village, Gantyada mandal, Vizianagaram District.

3. Allu Padma, w/o Srinivasa Rao, Hindu, aged about 30 years, residing at Dharmavaram village, S.Kota Mandal, Vizianagaram District.

4. Kubireddy Ramesh, s/o late Achamanaidu, Hindu, aged about 29 years, residing at Chinamdhupada village, Gantyada Mandal, Vizianagaram District.

5. Kubireddy Prasad, s/o Achamnaidu, Hindu, aged about 26 years, rest – do-. (Petitioners 3 to 5 are added as L.Rs. of the deceased 1st petitioner, as per order in I.A. 1766/2012, dt.07.11.2012). …Petitioners And:

1. Manakala . Rajender Reddy, s/o Rana Reddy, Hindu, aged about 19 years, driver of the Tractor and Trolley, residing at Krishna Nagar villaghe, Farooqnagar Mandal, Mahabubnagar District.

2. A. Prabhakar Reddy, s/o A Ramaswamy Reddy, Hindu, Owner of Tractor & Trolley, residing at Krishna Nagar village, Farooqunagar Mandal. Mahabubnagar District. …Respondents

This petition is filed under Section 163-A of M.V. Act claiming a total compensation of Rs.5,00,000/- for the death of the deceased Kubireddy Ravi in a motor accident, which took place on 08.05.2007 at 21:00 hours on Parigi Road in Shadnagar P.S. Limits in Mahaboobnagar District, by his parents and for costs.

A Court fee of Rs. 4,360/- is paid U/Rule 475 (1) of A.P.M.V. Rules.

This petition coming on 22.10.2013 for disposal before me in the presence of Sri G. Rama Mohana Rao, Advocate for petitioners and of Sri D. Swaroop Kumar, Advocate for respondents 1 and 2 and having stood over for consideration till this day, this Tribunal doth order and

D E C R E E

i)that the petition be and the same is hereby allowed in part, awarding total compensation of Rs.1,85,000/- (Rupees one lakhs eighty five thousand only) with interest at 06% p.a., from the date of petition i.e., 22.07.2008 till the date of realization; ii)that the Respondents 1 and 2 are jointly and severally liable to pay the said amount and they are hereby directed to deposit the said amount into the Court within two months from the date of this order;

M.A.C.T., (Dist Court), Vizianagaram M.V.O.P.447/2008 (death)10 iii)that out of the total compensation of Rs. 1,85,500/- shall be apportioned among the petitioners 2 to 5 as depicted below: 2nd petitioner … Rs. 1,05,500/- 4th petitioner … Rs. 40,000/- 5th petitioner … Rs. 40,000/- that the petitioners 2, 4 and 5 are permitted to withdraw the entire amount of their respective shares with accrued interest by filing separate applications after deposit is made; iv)that the claim of the 3rd petitioner be and the same is hereby dismissed without costs;

v)that the advocate fee is fixed at Rs.1,500/-; and vi)that the Respondents 1 and 2 do also pay to the petitioners 2, 4 and 5 a sum of Rs.3,092-00 towards proportionate costs of the petition.

Given under my hand and the seal of this Court, this the 28th day of October, 2013.

Sd/- P. Mutyalanaidu

CHAIRMAN (DISTRICT JUDGE)

MOTOR ACCIDENTS CLAIMS TRIBUNAL

VIZIANAGARAM.

TABLE OF COSTS

FOR PETITIONERS 2, 4 and 5:- FOR RESPONDENTS:-

No costs memo is filed.

Stamp on Vakalat :2-00 Stamp on O.P.:1,260-00 Stamp on process:300-00 Typing Charges:30-00 Advocate Fee:1,500-00 Proportionate costs allowed:3,092-00

Sd/- P. Mutyalanaidu

CHAIRMAN (DISTRICT JUDGE)

MOTOR ACCIDENTS CLAIMS TRIBUNAL

VIZIANAGARAM.