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Fair Order M.V.O.P.No.20/16, Dt.06092019
X ADJ/GZL.
In The Court of Chairman, The Motor Accident Claims Tribunal –
cum- X Additional District Judge, Gurazala.
Present:- Sri T.Mallikarjuna Rao,
Chairman, Motor Accident Claims Tribunal – cum -
X Additional District Judge, Gurazala.
Friday, this the 6 th day of September, 2019.
M.V.O.P.No.20/2016
Between:
1. Nimmala Venkateswarlu, S/o.Ramaswamy, Hindu, Aged about 55 Years, Agricultural Coolie.
2. Nimmala Tirupathamma, W/o.Venkateswarlu, Hindu, Aged about 50 Years, Agricultural Coolie.
Both are residents of Karampudi Village and Mandal, Guntur District.. . . Petitioners
And
1. Andhra Pradesh State Road Transport Corporation, Represented by its Regional Manager, Guntur, Guntur District. (Owner of the Bus bearing No.AP11Z 3236)
2. Vennu Hanumantha Rao, S/o.Satyanarayana, Hindu, Aged about 45 Years, Driver in APSRTC, R/o.D.No.8-52/A, Railway Station Back Side, Piduguralla Town and Mandal, Guntur District (Driver of RTC Bus No.AP11Z 3236)
3. Katikala Srinivasa Rao @ Bala Krishna, S/o.Koteswara Rao, Hindu, Aged about 42 Years, R/o.Indira Nagar Colony, Karampudi Village and Mandal, Guntur District. (Owner of Lorry Bearing No.AP13T 1433)
4. Katikala Anil Kumar, S/o.Srinivasa Rao, Hindu, Aged about 18 Years, R/o.Indira Nagar Colony, Karampudi Village and Mandal, Guntur District. . . . Respondents (Driver of Lorry Bearing No.AP13T 1433) No.1 to 4
(Respondents Nos.3 and 4 added as per Orders in I.A.No.560/2017
dated 18-01-2018)
(Lorry Number amended as per Orders in I.A.No.516/19, dt.19-07-19)
This petition coming on 13-08-2019 before me for hearing in the presence of Smt.N.Syamala Devi, Advocate for Petitioners and of Sri P.Ramanjaneyulu, Advocate for Respondent No.1, Sri Ch.Koteswara Rao, Advocate for Respondents Nos.3 and 4 and Respondent No.2 remained exparte, upon hearing and considering the material on record, having stood over for consideration till this day, this Tribunal delivered the following::
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Fair Order M.V.O.P.No.20/16, Dt.06092019
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O R D E R
This claim application filed on behalf of the Petitioners Nos.1 and 2 under Section 166 of Motor Vehicles Act, 1988 (herein after referred as “Act” for brevity) claiming compensation amount of Rs.16,50,000/- (Rupees Sixteen Lakhs and Fifty Thousand only) on the account of the death of the deceased/Nimmala Manikanta in the road accident occurred on 22-11-2015.
02.Originally, the petition has been filed against Respondents
No.1 and 2 only. By virtue of the Orders passed in I.A.No.560/2017, dated 18-01-2018, 3rd and 4th Respondents have been added.
03.The brief averments of the petition, in brief, are as follows:
(a).It is submitted that the 1st respondent is the owner of RTC Bus bearing Registration No.AP11Z 3236 and the 2nd Respondent is its driver by the time of accident and the 3rd respondent is the owner of the lorry bearing No.AP13T 1433 and the 4th respondent is the insurer of the said lorry.
(b).It is submitted that on 22-11-2015 at about 2.30 P.M., while the Nimmala Manikanta (hereinafter be referred as deceased) and others were going in a lorry bearing registration No.AP12, 1433 from
Devarampadu Village to Karempudi, the driver of the RTC bus bearing registration No.AP11Z 3236 while driving the same in a rash and negligent manner coming from opposite direction came extreme wrong side and hit the lorry, as a result of which Nimmala Manikanta and others sustained severe injury and immediately after the accident the said Manikanta was shifted to Sai Tirumala Super Speciality Hospital,
Narasaraopet, Guntur District and as his condition was critical, he was brought to NRI Hospital, Mangalagiri where he succumbed to injuries on 15-12-2015. In the said accident six persons died and some others sustained severe injuries.
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(c).After the accident, the matter was reported to the Police and
SHO of Piduguralla Town Police Station registered the same as a case in
Cr.No.351/2015 under Sections 337, 338 and 304-A of IPC against the driver of the RTC bus. It is submitted that the accident was caused only due to rash and negligent driving of the driver of RTC bus and the driver and owner of the lorry. The Owner of RTC bus veraciously liable for negligent act of the driver i.e., 2nd respondent.
(d).It is submitted that the deceased was aged about 19 years and he was clerk in the broker office of Chirumamilla Srinu and his salary was
Rs.10,000/- per month. By taking the future prospectus of the deceased, his income will be more. On account of the death of the deceased, the petitioners lost their financial support. The petitioners spent nearly
Rs.4,00,000/- for his treatment apart from the attendant charges, funeral expenses and transportation charges. Except the petitioners, there are no other dependants and legal representatives to the deceased, as the petitioners lost their dependency, in addition to the mental agony and suffering due to the premature death of the deceased.
04.The Respondent No.2 having remained exparte.
05.The 1 st respondent filed written statement by contending that the Corporation did not admit the factum and manner of the accident and age, occupation and income of the deceased. There is no rash and negligence on the part of the driver of APSRTC bus bearing No.AP11Z 3236 at the time of accident and hence the 1st respondent is not liable to pay any compensation amount and the accident was occurred only due to rash, negligence and confusing state of the driver of the lorry bearing
No.AP12T 1433, in which the deceased was travelling as unauthorized passenger in goods vehicle and the death of the deceased on the alleged accident was occurred only due to the composite negligence of both drivers of the lorry and bus and the petition is bad for non-joinder of proper and necessary parties i.e., the owner and insurer of the lorry bearing No.AP12T 1433 and the 1st respondent plied the bus on the alleged date of accident in the said route and the petitioner is not the dependant on the earnings of the deceased.
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06.The 4th Respondent adopted the written statement filed by the 3rd Respondent. The 3rd respondent filed written statement by contending that the accident on 22-11-2015 was caused only due to the negligence and rash driving of the APSRTC driver i.e., the 2nd Respondent and no crime was registered against the Respondents No.3 and 4 attributing them responsible for the said accident and it clearly shows that there is no fault on the part of Respondents No.3 and 4 in the above said accident and the 1st respondent openly apologized and gave a paper statement stating that the said accident was occurred due to rash and negligent driving of the 2nd respondent only and they will help immediately and pay the compensation to the death and injured persons and the 3rd respondent is having licence to his lorry and Piduguralla police verified all the concerned registration documents of lorry and found correct and the respondents No.3 and 4 were added in the petition only as formal parties.
07.Based on the strength of pleadings, the following issues are settled for trial:
1. Whether the death of Nimmala Manikanta/deceased occurred due to rash and negligent driving of the driver of APSRTC bus bearing No.AP11Z 3236 or the accident occurred due to rash and negligent driving of the driver of Lorry bearing No.AP13T 1433?
2. Whether Petitioners are entitled for the amount of compensation claimed by them, if so, to what amount and from whom?
3. To what relief?
08.On behalf of petitioners, P.Ws.1 and 2 were examined and
Ex.A.1 to A.10 were marked. No evidence is let on behalf of the
Respondents.
09.Heard both sides. Written arguments submitted on behalf of
Petitioners and Respondent No.1.
ISSUE NO.1:-
10.To prove the manner of the accident, the father of the deceased/Petitioner No.1-Nimmala Venkateswarlu was examined as P.W.1.
According to the evidence of P.W.1, on 22-11-2015 at about 2.00 P.M., 5
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X ADJ/GZL. while he along with his wife and their son-Nimmala Manikanta (deceased in this petition) and others were going in a lorry from Devarampadu
Village of Rajupalem Mandal, the Respondent No.2-Driver of RTC bus bearing registration No.AP11Z 3236 drove the bus in a rash and negligent manner coming from opposite direction came extreme wrong side and hit the lorry, in which they were going, due to which his wife, his son and others sustained injuries.
11. It is the evidence of P.W.1 that immediately after the accident, his son and his wife were shifted to Sai Tirumala Super Specialty Hospital,
Narasaraopet and as the condition of his son was critical, his son was taken to NRI Medical College and Hospital, China Kakani, where he succumbed injuries on 15-12-2015. It is also the evidence of P.W.1 that the accident was reported to the Police and SHO, Piduguralla Town Police
Station Registered the case in Cr.No.351/2015 under Sections 337, 338 and 304-A of IPC against the driver of RTC bus that was involved in the accident and same was being investigated into.
The reading of P.W.1 clearly goes to show that his son-
Manikanta died due to injuries sustained in the accident. The said evidence of P.W.1 is also not disputed.
12.Initially this petition is filed against Respondents Nos.1 and 2, subsequently the petitioners have impleaded the Respondents Nos.3 and 4, the owner and driver of lorry bearing No.AP13T 1433 respectively in view of the contentions raised by the respondent No.1 in the written statement. Respondents No.3 filed the written statement by contending that the accident occurred due to negligence and rash driving of the 2nd respondent. Respondents Nos.3 and 4 have not disputed the case of petitioners that their son was travelling in the lorry bearing No.AP13T 1433 at the time of accident.
13.From the reading of the Written Statement filed by
Respondent No.1 and also suggestions put to P.W.1 during the cross- examination, it can be seen that Respondent No.1 has not disputed the case of petitioners that their son succumbed to injuries sustained in the accident. However, it is the case of Respondent No.1 that the accident 6
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X ADJ/GZL. took place due to negligence of the lorry driver and it has also taken another plea that the accident was occurred due to the composite negligence of the driver of the lorry.
14.The 2ndpetitioner also examined as P.W.2/Nimmala
Thirupathamma. She stated in her evidence that she, her son and others were also was travelling in the lorry at the time of accident and she categorically stated in her chief-examination that the RTC bus bearing registration No.AP11Z 3236 came in a rash and negligent manner in opposite direction in extreme wrong side and hit the lorry, in which they were going. P.W.2 also stated in her evidence that immediately after the accident, herself and her son were shifted to Sai Tirumala Super Specialty
Hospital, Narasaraopet and as the condition of her son was critical, her son was taken to NRI Medical College and Hospital, China Kakani, where he succumbed injuries on 15-12-2015. The testimonies of P.Ws.1 and 2 establishes the death of Manikanta/deceased due to injuries sustained in the accident held on 22-11-2015 at about 2.20 P.M.
15.The Respondents have not chosen to cross-examine the witness/P.W.2. The evidence of P.W.2 is remained unchallenged, as such this Tribunal finds no reason to disbelieve the evidence of P.W.2, which is supported and corroborated by documentary evidence produced by P.W.1.
16.Though it is suggested to P.W.1 in the cross-examination that due to rash driving of the driver of the lorry, the accident occurred, but
P.W.1 denied the suggestion. Nothing is elicited in the cross-examination of
P.W.1 to discredit his evidence. The petitioner has also relied on Ex.A.1-
Certified Copy of FIR in Cr.No.351/2015 of Piduguralla Town P.S, dt.22-11- 2015. A reading of Ex.A.1/Report shows that it was lodged by one
Nagendla Mohana Rao and the information received at Police Station on 22-11-2015 at 3.15 P.M. Whereas the accident occurred on 22-11-2015 at 2.20 P.M, thus within one hour of the accident the said report was lodged.
From the reading of Ex.A.1/Report it is clear that the informant was travelling in the RTC bus at the time of accident, the informant clearly stated in the report that the accident occurred due to rash and negligent driving of the driver of RTC bus. Ex.A.1/Report corroborates the case of 7
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X ADJ/GZL. petitioners regarding the manner of the accident. The petitioners have also relied on Ex.A.2/Certified Copy of Charge sheet dated 27-07-2016.
17.A reading of Ex.A.2/Charge Sheet shows that five persons who were travelling in the APSRTC bus died due to injuries sustained in the accident and two passengers who were travelling in the lorry also died due to injuries sustained in the accident, after investigation the
Investigation Officer came to conclusion that the accident occurred due to rash and negligent driving of the RTC bus driver i.e., Respondent No.2 herein. According to the averments of charge sheet, the accident was occurred while the lorry proceeding towards Karempudi, reached turning on the Karempudi Road near Dattatreya Swamy Temple, the driver of RTC bus drove the bus in a rash and negligent manner while taking turn at the scene of offence he was unable to control the vehicle, due to his rash and negligent driving hit the lorry from opposite direction. The evidence of
P.W.1 coupled with the un-challenged evidence of P.W.2 is supported and corroborated by the contents of Exs.A.1 and A.2.
18.The petitioners have also relied on Ex.A.4/Certified Copy of
Postmortem Certificate dated 12-12-2015. The material placed before the
Tribunal clearly shows the death of son of petitioners due to injuries sustained in the accident. The said fact is also not seriously disputed by the Respondents Nos.1 and 2.
19.The learned counsel for the Respondent No.1 relied on a decision reported in 2006(6) ALT 147, Shamshuddin and another V.
Atta Anaruddin and another, wherein it is observed that:
“The negligence of a person cannot be judged, merely on the
ground that he was charge sheeted and even if one of the driver’s is
a little careful there would be possibility to avert the accident.
20.The counsel for Respondent No.1 also relied on a decision reported on 2008 ACJ 1165, T.O.Anthony V. Karvarnan and others, wherein Hon’ble Apex Court observed that:
“Composite negligence refers to the negligence on the part of
the two or more persons. Where a person is injured as a result of
negligence on the part of two or more wrongdoers, it is said that the
person was injured on account of composite negligence of those
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wrongdoers. In such a case, each wrongdoer, is jointly and severally
liable to the injured for payment of the entire damages and the
injured person has the choice of proceeding against all or any of
them ….. and it is further held that: Where a person suffers injury, partly due to negligence
on the part of another person or persons, and partly, as a result of
his own negligence, then the negligence on the part of the injured
which contributed to the accident is referred to as his contributory
negligence”.
21.The learned counsel for Respondent No.1 also reliedon a decision reported in 2016 ACJ 1, Kamlesh and others V. Attar Singh and others, wherein the Hon’ble Apex Court observed that:
“The method and manner in which the accident has
taken place leaves no room for doubt that both the drivers are
negligent and man may live but the circumstances do not is the
cardinal principle of evolution of evidence and thus it was a case of
composite negligence and both the drivers were joint tort feasors
and it is also observed that in the case of composite negligence, the
petitioner is entitled to sue both or any of the joint tort feasors and
to recover the entire compensation as liability of joint tort feasors is
joint and several and he can recover at his option hold damages
from any of them”.
22.He also relied on 2011 ACJ 1693, New India Assurance
Company Limited V. Olivia Sawain and others, wherein it was observed that:
“As the principle of res ipsa loquitur is demonstrably
applicable, the burden shifts on to the appellant to prove that the
accident was not a headon collision, but it was due to negligence of
the driver of Tata Sumo. No such proof is forthcoming. Under the
circumstances, I do not find any reason to upset the findings of the
Tribunal”.
23.Coming to the facts of present case, it is not the case of any of the respondents that the accident occurred due to negligence of the deceased. Now it is to be seen whether the accident occurred due to negligence of APSRTC Bus Driver or negligence of Lorry Driver or composite negligence of both the drivers.
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24.According to the case of petitioners, the accident occurred only on the account of negligence driving of APSRTC Driver. Though, the drivers of both vehicles were shown as parties to this proceeding, they have not explained the manner of the accident.
25.It is relevant to note that the respondents 1 and 2 have not chosen to examine any witnesses to establish that the accident occurred due to the contributory negligence on the part of the drivers of both the vehicles and they have also not placed any circumstantial evidence before this Tribunal to come to a conclusion that the manner in which the accident took place shows that both the drivers were responsible for the accident. However, they relied on the contents of Ex.A.3/Certified Copy of
MVI Report. It goes to show that the Motor Vehicle Inspector inspected the RTC bus bearing registration No.AP11Z 3236 and its right side bumper, cabin, body and steering wheel, break pipes, pedals and seats damaged. Basing on the damage caused to the RTC bus, it cannot be said that because of the negligence of the Lorry Driver, such damages were caused to the RTC bus and due to hitting of RTC bus to the lorry, it cannot be said that such damages could not have been caused to it.
26.In a decision reported in 2015 ACJ 797 in between K.Rajani and others V. M.Satyanarayana Goud and others, 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”.
27.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
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probabilities. The standard of proof beyond reasonable
doubt could not have been applied”.
In the same Judgment the Apex Court also observes as follows: “It is difficult to speak that the Police Officer Could fabricate a case against the respondent”.
28.It can be seen that no evidence is placed by the respondent
Nos.1 and 2 to show that the contents of the charge sheet, are incorrect.
The contents of charge sheet also supports the case of petitioners regarding the death of their son due to injuries sustained in the accident.
Without placing any material before the Tribunal, it is not prudent on the part of the respondents to doubt the investigation held by the concerned
Police Officer. There is no reason for the petitioners to foist a false case against the respondents 1 and 2. There is nothing on the record to suggest that the Investigation Officer who filed the charge sheet against driver i.e., 2nd respondent had any reason to fabricate case against him. Even, it is assumed for the sake of convenience, as contended by Respondent No.1 that the accident took place due to composite negligence of Respondents
No.2 and 4, as per the principle laid down by the Hon’ble Apex Court which was referred to above, the petitioners are entitled to recover the compensation amount from any one of the joint tort feasors and as such the filing of this petition initially against Respondents Nos.1 and 2 and claiming compensation amount from Respondents Nos.1 and 2, cannot be found fault with. It can be seen that even after adding of Respondents
Nos.3 and 4 as parties to the proceedings, it has not alleged in the petition that the accident occurred due to negligent driving of Respondent No.4-
Lorry Driver.
29.In a proceeding under the M.V.Act, where procedure is a summary procedure, there is no need to go by strict rules of pleading or evidence. 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 FIR or Police Papers, when made part of claim petition can be looked into for giving a finding in respect of happening of the accident and for reaching conclusion examined in broader probabilities of their case, in 11
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X ADJ/GZL. order to achieve object of social welfare legislation. The preponderance of probabilities is the touch stone for arriving at a conclusion regarding rashness and negligent as well as mode and manner of happening of the accident.
30.It can be seen from the record that, though the Respondents
Nos.2 and 4, drivers of both the vehicles received notice in M.V.O.P, they have not chosen to contest the matter. In view of the same, there will be no difficulty to observe that the 2nd respondent had not disputed the case of the petitioners with regard to 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 2nd respondent.
The 2nd respondent, who was the driver of the offending vehicle is a competent person to speak about the accident, but for the reasons best known to him he has not chosen to contest the matter.
31.On the other hand, the 1st respondent has not taken steps to get examined respondent Nos.2 and 4 by taking out summons. Even, the respondent No.1 insurance company has not stated how it has come to know about the manner of the accident. It is not the case of the respondent No.1 that its staff witnessed the accident. When it contends that the accident occurred due to contributory or composite negligence, it is to place necessary evidence before the Tribunal basing on which,
Tribunal has to come its own conclusion. As already observed, the petitioner has placed the FIR lodged with the police about the manner of the accident and the charge sheet filed against the respondent No.2 making him responsible to the accident. The contents of charge sheet are supported by the evidence of P.Ws.1 and 2 who were travelling in the lorry at the time of accident along with the deceased/Manikanta. There is no material placed by the Respondent No.1 to show that the accident occurred due to composite negligence driving of drivers of APSRTC bus and lorry.
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32.Therefore, considering that the respondents Nos.1 and 2 have not placed any material disputing the case put forth by the petitioners and also considering the fact that they also admitted the involvement of the offending APSRTC bus at the time of accident and they also admitted to some extent that the lorry driver contributed to the accident and upon careful reading of the evidence of P.Ws.1 and 2, this Tribunal finds that nothing substantial has come to disbelieve their testimony. Simply because, the deceased was travelling in the lorry, though he may not be supposed to travel, it does not give licence to the opposite vehicle to hit the lorry by proceeding on extreme wrong side and escape from the liability of payment of compensation amount, more particularly when there is no fault on the part of the driver of the lorry/R.4.Merely because there was head-on collision, it cannot be said that the accident occurred due to negligence of both the vehicles and when the evidence of P.Ws.1 and 2 coupled with Exs.A.1 and A.2 documents show that while taking turn Respondent No.2 drove the RTC Bus rashly and hit the vehicle which was proceeding on its way and there is nothing on the record to suggest that the lorry driver/R.4 had got opportunity to avert the accident, in any way.
33. The respondents Nos.1 and 2 have not produced any evidence in rebuttal, as such this Tribunal finds no reason to disbelieve the evidence of P.W.1 and also un-challenged evidence of P.W.2, which is unflinching and steadfast and this Tribunal finds that the petitioners are able to establish that the accident, in question, occurred due to rash and negligent driving of the offending APSRTC BUS by the 2nd respondent and the death of Manikanta was occurred due to injuries sustained in the accident and that this issue is answered in favour of the petitioners and against the respondents Nos.1 and 2.
ISSUE NO.2
34.It is not the case of Respondent No.1 that Respondent No.2 had no valid driving licence at the time of accident and as such it has no liability to pay the compensation amount.
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35.It is the evidence of P.W.1 that immediately after the accident his son/N.Manikanta was shifted to Sai Tirumala Super Specialty Hospital,
Narasaraopet and as his condition was critical, he was brought to N.R.I
Medical College and Hospital, China Kakani where he succumbed to injuries on 15-12-2015. The evidence of P.W.1 is not seriously disputed regarding the undergoing treatment of the deceased in different hospitals as stated by P.W.1 and in support of the said case the petitioner has also filed Ex.A.5-Bunch of cash bills showing the amount paid to NRI Hospital and Ex.A.6-Bunch of cash bills issued by NRI Hospital and Ex.A.7-
Inpatient Bill dated 15-12-2015. Ex.A.7 bill shows that the petitioners spent an amount of Rs.2,91,351/-. Ex.A.5 and A.6 supports the case of petitioners that they spent the said amount towards medicines and for undergoing different tests over the deceased and in Ex.A.7 bills, the bills covered under Exs.A.5 and A.6 are included.
36.The petitioners also relied on Ex.A.8-Pharmacy OP Sales Bills and Ex.A.9-Final Bill of Sai Tirumala Super Specialty Hospital,
Narasaraopet and Ex.A.10-Total Out Patient Bill issued by Sai Tirumala
Super Specialty Hospital, Narasaraopet. It shows that The petitioners spent an amount of Rs.32,714/- towards Medical Expenses in
Sai Tirumala Super Specialty Hospital vide Ex.A.9-Final Bill and Ex.A.8 bills supports the case of the petitioners that they spent amount towards medicines for undergoing different tests. In Ex.A.9 bill, the bills covered under Ex.A.8 are also included. Ex.A.10 shows that the petitioners spent an amount of Rs.5,536/- and the said amount is charged as out patient bill. In Ex.A.4/Postmortem Certificate, there is a clear mention of internal and external injuries sustained by the deceased. The material on record clearly establishes that the deceased had undergone in different hospitals due to injuries sustained in the accident and nothing is elicited in the cross-examination of P.W.1 to discredit his evidence with regard to the medical expenditure incurred by him on his deceased son and the evidence of P.W.2 is also unchallenged.
37.The learned counsel for the Respondent No.1 contended that the petitioners have not chosen to examine the doctors, who issued certificates and as such the said documents cannot be taken into 14
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United India Insurance Company Limited, Hyderabad V. Mohd. Khaj
Rasool Sayyed @ Mohd. Khaja Main Shaik and another, wherein it is observed that
Mere marking of documents through claimants does not amount to proof of said documents.
38.It can be seen from the record that the said documents relied on by the petitioners were marked without raising any objection by the
Respondents. As already observed in preceding paragraphs, the evidence of P.Ws.1 and 2 is not disputed with regard to their son getting treatment in the hospitals as stated by them.
39.In a decision reported in 2003 ACJ 1420, Between
Managing Director, North East Karnataka Road Transport
Corporation V. T.Prabhakar and others, wherein it is held that:
“It is significant to note that the Wound Certificate issued by the doctor have been marked as exhibits with the consent of the parties. The petitioner has not made any sincere effort to rebut the evidence placed by the claimants before the Tribunal in which petitioner entered the witness box and gave evidence
to rebut the documentary evidence available on record”.
40.In the said facts of the case, it is held that non-examination of the doctor is not fatal to the case of the claimant; it is permissible under law, to produce the wound certificate by the claimant issued by the
Medical Officer. Non-examination of the Medical Officer will not vitiate the claim for compensation by the claimant on the basis of Wound Certificate.
41.In a decision reported in 2010(6) ALD 566, New India
Assurance Company Limited, Visakhapatnam V.Korukonda Appa
Rao and Another, wherein it is observed that:
“There is no absolute proposition of law to the effect that in
the absence of the evidence of the doctor, the Tribunal cannot award any
compensation, more particularly, when the injury certificates were
brought on record. It is well within the competence of the Tribunal to
award just and reasonable compensation basing on the oral evidence of
the claimants and they injury certificates brought on record by them”.
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42.Since there is no dispute before the Tribunal regarding the injuries sustained by the deceased as shown in Ex.A.4/Postmortem
Certificate and treatment undergone by him in different hospitals, I find that the Medical Record relied on by the petitioners can be considered, as the said record is marked without raising any objection by the Respondent
No.1. The petitioners have relied on medical record to show the medical expenditure incurred towards the treatment of deceased and they go to show that the petitioners spent an amount of Rs.2,91,351/- +
Rs.32,714/- + Rs.5,536/- = Rs.3,29,601/-.
For the said reasons stated, this Tribunal is of view that an amount of Rs.3,29,601/- can be awarded as Medical Expenses.
43.LOSS OF DEPENDENCY ON ACCOUNT OF THE DEATH OF
DECEASED
Age of deceased:
The Petitioners have not placed any document before the
Tribunal showing the actual age of the deceased. In absence of such evidence, this Tribunal is of view that the age shown in the Postmortem
Report, can be taken into consideration. In the Postmortem Report the age of the deceased is shown to be 19 years. In the Charge Sheet filed against the Respondent No.2 herein also, the age of the Manikanta is shown to be 19 years. In the petition also the deceased age is shown to be 19 years. In the said facts of the case, this Tribunal is inclined to consider the age of
Deceased/Manikatna, is 19 years as the date of his death.
44.The relevant multiplier applicable to the age of the deceased as per the decision of the Hon’ble Apex Court referred in 2009 ACJ 1298 in between Sarla Verma and others V. Delhi Transport Corporation and another is “18” for the age group of 1520 years.
EARNINGS OF THE DECEASED
45.It is the evidence of P.Ws.1 and 2 that their son was a clerk in the broker office of Chirumamilla Srinu and his salary was Rs.10,000/- per month. The petitioners have not placed evidence before the Tribunal in support of the said contention.
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46.In a decision reported in 2011(6) ALT 48 (SC), Sri
Ramachandrappa V. Manager, Royal Sundaram Aliances Insurance
Company Limited, it is observed that:
If the claim made is so exorbitant or if the claim made is contrary
to ground realities, the Tribunal may not accept the claim and may
proceed to determine the possible income by resorting to some guess
work which may include the ground realities prevailing at the relevant
point of time”.
In a decision reported in Valasamma V. Binu Jose, 2014(2)
An.W.R 244 (DB) (Ker) dated 16-12-2013, the Hon’ble Kerala High
Court, held as follows:
Considering these aspects, some guess work will have to be made
for ascertaining the income of the deceased who is not having permanent
job or self employment but having some fixed income.
47.Nothing is elicited in the cross-examination of P.W.1 to disprove his version that his son/Manikanta was working as a clerk in
Chirumamilla Sirnu’s Broker office and the evidence of P.W.2 is not at all disputed in this regard by way of cross-examination. Thus, this Tribunal is inclined to accept their version regarding employment of their son.
Though, there is no material placed before the Tribunal to show the actual earnings of the deceased, this Tribunal is of view that there is every possibility of earning Rs.6,000/- per month by considering the prevailing circumstances by working as a clerk in broker office. Since there is no material before the Tribunal to show that the deceased was self employed or on a fixed salary, this Tribunal is not inclined to award any amount towards Future Prospectus of the deceased.
48.In a decision reported in 2009 ACJ 1298, Sarla Verma and others, V. Delhi Transport Corporation and another, it is observed that:
“Where the deceased was a bachelor and the claimants are the
parents, normally 50% is deducted as personal and living expenses,
because it is assumed that a bachelor would tend to spend more on
himself”.
In view of the above principle laid down, this Tribunal is of view that the half income of the deceased has to be deducted towards 17
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X ADJ/GZL. personal expenses of the deceased and then it would be Rs.3,000/- per month and his annual income would come to Rs.36,000/-. As already observed, the relevant multiplier is “18” that the annual loss of income comes to Rs.36,000/- X 18 = Rs.6,48,000/-.
49.In M.A.C.M.A.No.364/2010 dated 01-02-2016 in between
Dr.Gangaraju Sowmini V. Alavala Sudhakar Reddy and another, it is held that:
Whether nondependant heir of the deceased who died in a
motor accident is entitled to lay claim for compensation under section
166 of the Motor Vehicles Act, 1988 where there is no other dependant
legal heir claiming compensation.
In view of the clear and unambiguous language under Section
166 of the Motor Vehicles Act, it is clear that application can be made
either by the injured or the legal representatives of the deceased. Though
legal representative is not defined under the provisions of the Motor
Vehicles Act , 1988, from Rule 2(g) of the A.P.Motor Vehicles Rules, 1989,
it is clear that the definition of legal representative is given same
meaning as defined under Section 2(11) of the Code of Civil Procedure.
In that view of the matter, there is no basis for contending
that the application is to be filed only by the dependants. As we have
held that dependency is a matter to be taken into consideration for
award of compensation and merely because one is not dependant, that by
itself, is no ground for not entertaining any claim made for grant of
compensation under the Motor Vehicles Act .
Wherein, it is held that the compensation to be awarded
under Section 140 of the Motor Vehicles Act will form part of the estate
of deceased, and further, as the Act also provides for compensation on
other conventional heads, we are of the view that the nondependant also
can lay a claim by filing application under Section 166 of the Act. It is
also to be noticed that the situations may arise, where, one may have
suffered injuries initially but ultimately after filing a claim, may have
succumbed to such injuries also.
Accordingly, we answer the reference, holding that a non
dependant heir of the deceased who died in a motor accident is entitled
to lay a claim for compensation under section 166 of the Motor Vehicles
Act, 1988 where there is no other dependant legal heir for claiming
compensation.
50.In a decision reported in 2014(5) ALD 512, United India
Insurance Company Limited, Hyderabad and another V. Syamrao
metre died by L.Rs, our Hon’ble High Court observed as follows:
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"from the combined reading of the above gives the inevitable conclusion
that dependency is not the only criterion on one breathe and mere legal
representative is also not the only criterion on the other breath, but for to say if
the claimants legal representative/s and suffers from accidental death
of deceased, entitled compensation and one need not be dependant legal
representative; except to say where there are dependants and nondependants,
the dependants to be preferred for grant of compensation over non
dependants, however, if it is shown the non dependants or any of
them are the sufferers they are also entitled to compensation but for to say
the fixing their quantum, their means also require consideration
including which such apportionment”.
51.In a decision reported in Chief Works Manager, Southern
Railway Carriage Works V. V.Manimekalai, 2015 Law Suit (Mad)
3920; in the said case, the claimant was an earning member and therefore, she cannot be said to be dependent on the deceased. In the said facts of the case, it is observed that:
“Wherever the deceased is an earning member, naturally
his savings is an accumulation for the estate which can be divided by
the legal representatives after the death of the deceased. As the legal
representatives had been put to loss of the earning of the deceased,
the legal representatives are also entitled for the compensation”.
The deceased being a widow, naturally she could have lived with
any one of the sons. When the legal representatives, the married
sons of the deceased, are entitled for compensation even though
they are residing separately, the claimants herein will be entitled for
compensation; especially when they are residing with the deceased.
Moreover, the aged parents in many a house are the watchdogs for the
entire house, servants and the grandchildren except a few exceptional
cases. When the claimants had lost such valuable services of their mother
they are entitled for compensation. The loss cannot be substituted by any
other confidant or responsible person either in the family or by
appointing a servant. If the contention of the counsel for the appellant
is accepted, I am not surprised that in future the appellant may plead
that generally the aged ones are only a liability in the family and since
due to the accident the aged one died, the family has got rid of the same
and the drivers should be suitably rewarded by the legal representatives
instead of claiming any compensation for the death of the deceased.
52.The evidence on record discloses that the deceased was living with the petitioners and used to contribute the amount which he got by working as a clerk in broker office.
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53. It is relevant to note that the petitioners are the legal representatives of the deceased. They claimed that they are dependents on the earnings of the deceased. Admittedly, the petitioners are the parents of the deceased. P.Ws.1 and 2 evidence shows that they are also dependent on the earnings of the deceased. There is nothing on the record to suggest that the said evidence of P.Ws.1 and 2, is incorrect. It is relevant to note that the petitioners have filed this application under
Sec.166 of M.V.Act. In view of the same, the petitioners are supposed to prove the rash and negligent driving of the driver. This Tribunal has already given a finding that the petitioners are able to establish the said fact. Being the legal heirs of the deceased, they are entitled to claim an application under Sec.163-A of M.V. Act. In such a case, they are entitled to claim compensation amount without proving the rash and negligent driving of the driver.
54. In a decision reported in 2014 ACJ 1492 (Kerala High
Court) in between Kadeeja and others V. Managing Director, Kerala
State Road Transport Corporation and another, it is observed as follows:
In the case of a claim under Section 163A, the person entitled to claim compensation are legal heirs.
For a claim under Section 163 A, the dependency has no relevancy,
because the persons who are entitled to file an application for
compensation for the death of the deceased are the legal heirs and not
the legal representatives. Once it is proved by the appellants that, they
are legal heirs of the deceased then, in a claim under Section 163 A, they
are entitled to claim compensation for the death of the deceased. Legal
representatives include legal heirs as well and not vice versa.
Once it is proved that, death occurred on account of the use of the
motor vehicle, the legal heirs are entitled to claim compensation, as
provided under the 2 nd schedule to the Motor Vehicles Act, which is based
on only two factors, namely, the age of the deceased and the annual
income of the deceased.
55.Upon considering the material on record, this Tribunal finds that the petitioners are entitled to compensation amount under Section 163-A of M.V.Act being the legal representatives of the deceased as they are able to establish the death of the deceased in a motor accident. When once they are entitled to compensation amount under Section 163-A of 20
Fair Order M.V.O.P.No.20/16, Dt.06092019
X ADJ/GZL. M.V.Act, this Tribunal is of opinion that even otherwise the compensation amount which can be awarded under Section 163-A of M.V.Act can be awarded to the Petitioners though they filed the application under Section 166 of M.V.Act. Even otherwise, this Tribunal is of view that the material placed before the Tribunal is sufficient enough to hold that the petitioners are also dependents on the earnings of the deceased.
56.By following the principles laid down in the said decisions and the evidence on record discloses that the deceased was living with the petitioners and used to contribute the amount which he got by working as a clerk in broker office.
57.As per the observations made in the decision in 2017 ACJ
2700 in between National Insurance Company Limited V. Pranay
Sethi and others, this Tribunal is of view that the following amounts under convention heads; Loss to Estate and Funeral Expenses can be awarded Rs.15,000/- and Rs.15,000/- respectively. This Tribunal is also of view that an amount of Rs.40,000/- can be awarded under the head of
Loss of Love and Affection towards his parents and an amount of
Rs.5,000/- can be awarded towards Transportation Charges.
58.In view of the reasons stated above, the entitlement of the petitioners for compensation under various heads is calculated, as follows:
1. Medical Expenses of the deceasedRs.3,29,601-00
2. Loss of Future Earnings and dependency ofRs.6,48,000-00 deceased
3. Loss of EstateRs.15,000-00
4. Funeral ExpensesRs.15,000-00
5. Loss of Love and Affection towards parentsRs.40,000-00
6. Transportation ChargesRs.5,000-00
Total: Rs.10,52,601 -00
APPORTIONMENT
59.As the 2nd petitioner happened to be the mother of the deceased, this Tribunal is of view that compensation amount of
Rs.6,00,000/- with accrued interest and total costs can be awarded to her and the 1st petitioner being father of the deceased can be awarded 21
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X ADJ/GZL. compensation amount of Rs.4,52,601/- with accrued interest. Accordingly, the petitioners are entitled to the compensation amount as mentioned above.
60.It is settled law that the rate of interest prevailing in
Nationalized Banks shall be taken into consideration. The rate of interest on fixed deposits vary depending on the period of deposit. Therefore, on an average, 8% of interest can be taken as appropriate in the present case. Therefore, the petitioners are entitled to interest amount @ 8% per annum on the principal amount of compensation from the date of petition till the date of realization. Accordingly, the Issue No.2 is answered.
ISSUE NO.3:
61.In the result, petition is partly allowed with proportionate costs in favour of the petitioners against the Respondents Nos.1 and 2 by awarding compensation amount of Rs.10,52,601/- (Rupees Ten Lakhs
Fifty Two Thousand Six hundred and One Only) to the petitioners with interest @ 8% per annum from the date of filing of this petition till the date of realization.
(a).The Respondents Nos.1 and 2 are jointly and severally liable to pay the said compensation amount to the Petitioners.
(b). The 1st Respondent is directed to deposit the said compensation amount including costs and interest within two months before this
Tribunal from the date of this Order. In the event of failure of deposit, the
Petitioners Nos.1 and 2 are entitled to get the compensation amount by proceeding in accordance with law.
(c).The 1st petitioner being the father of deceased is entitled to compensation amount of Rs.4,52,601/- (Rupees Four Lakhs Fifty Two
Thousand and Six Hundred One only) with accrued interest and the 1st petitioner is permitted to withdraw an amount of Rs.3,50,000/- (Rupees
Three Lakhs Fifty Thousand only) on such deposit and the remaining amount shall be kept in F.D.R in any Nationalized Bank for a period of two years.
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X ADJ/GZL.
(d).The 2nd petitioner being the mother of deceased is entitled to compensation amount of Rs.6,00,000/- (Rupees Six Lakhs only) with accrued interest and total costs and the 1st petitioner is permitted to withdraw an amount of Rs.3,00,000/- (Rupees Three Lakhs only) on such deposit and the remaining amount shall be kept in F.D.R in any
Nationalized Bank for a period of two years.
(e).The petition is dismissed against Respondent Nos.3 and 4, but in the circumstances no costs.
(f).The Award is subjected to any compensation already awarded under Section 140 of the M.V.Act.
(g).The Advocate Fee is fixed at Rs.10,000/-.
(h).The decree will be supplied to the petitioners, after verification by Office as to payment of Court Fee and exemption if any, sought at the time of filing of this case and on clearance of Court Fee dues, if any.
Typed to my dictation by the Stenographer Grade-III, corrected and pronounced by me in open Court, this the 6th day of September, 2019.
Sd/- T.Mallikarjuna Rao,
Chairman, Motor Accident Claims Tribunal – Cum - X Additional District Judge, Gurazala.
Appendix of Evidence
Witnesses Examined
For Petitioners :
P.W.1Nimmala Venkateswarlu
P.W.2Nimmala Tirupathamma
For Respondents : NIL
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Exhibits Marked
For Petitioners:
Certified Copy of FIR in Cr.No.351/15 of Piduguralla Police Ex.A.1 Station dated 22-11-2015.
Certified Copy of Charge Sheet in C.C.No.261/16 of Junior Civil Ex.A.2
Judge’s Court, Piduguralla, dt.27-07-2016.
Ex.A.3Certified Copy of MVI Report, dt.07-12-2015.
Ex.A.4Certified Copy of Postmortem Report, dt.12-12-2015.
Ex.A.5Bunch of Cash Bills paid to NRI General Hospital, Chinakakani.
Ex.A.6Bunch of Cash Bills paid to NRI General Hospital, Chinakakani.
Ex.A.7Inpatient Final Bill, dt.15-12-2015.
Ex.A.8Pharmacy O.P Sale Bills
Final Bill of Sai Tirumala Super Specialty, Narasaraopet, Ex.A.9 dt.27-11-2015.
Total Outpatient Bill N.Manikanta issued by Sai Tirumala Super Ex.A.10 Specialty, Narasaropet.
For Respondents:- NIL
Sd/- T.Mallikarjuna Rao,
Chairman, Motor Accident Claims Tribunal – Cum - X Additional District Judge, Gurazala.