Andhra HC (Pre-Telangana)
Adapaka Eswaramma And Others vs N. Chandra Sekhar on 23 January, 2001
Equivalent citations: 2002ACJ1544, 2001(2)ALD234, 2001(2)ALT89, AIRONLINE 2001 AP 15
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER
1. This appeal is filed by the claimants, who are the wife and children of one Adapaka Shyam Sundara Rao who died in a road accident on 4-11-1987 at Jagadamba Junction, Visakhapatnam. The claimants filed OP 139 of 1989, on the file of the Motor Accidents Claims Tribunal, Visakhapatnam, under Section 110-A of the Motor Vehicles Act for compensation of rupees one lakh.
2. The brief facts of the case are that one Adapaka Shyam Sundara Rao, aged 41 years, husband of first appellant and father of appellants 2 to 4 was coming to Jagadamba Junction, Visakhapatnam, at about 6 p.m. on 4-11-1987, to the city bus stop situate opposite to Daspalla Hotel, to board a city bus. The respondent, N. Chandra Sekhar, suddenly dashed Shyamsundara Rao with his scooter from his behind due to which Shyam Sundara Rao fell down. The respondent immediately removed him to the King George Hospital, Visakhapatnam and left him there in the varandah of the hospital. Shyam Sundara Rao sustained fracture to his left leg and other simple injuries. He was admitted in the hospital. After he was discharged from the hospital, he was again admitted in Orthopaedic Unit as in-patient for some time and later he was discharged. Subsequently he was treated as out-patient for six months. After removal of bandages, Shyamsundara Rao was used to walk with the help of stick, and after one week he died on account of the injuries and also due to mental shock. It is claimed that the respondent being the driver-cum-owner of the Chetak scooter AEV 3448 is liable to pay compensation to the appellants.
3. The respondent filed counter denying the averments made by the petitioner in the OP. Though he admitted that he is the registered owner of the scooter AEV 3448, he contended that as on the date of the accident he was not in Visakhapatnam and that he was at Bokaro Steel City on official duty and after his return from Bokaro Steel City he came to know that his scooter was taken away by the II Town Police of Visakhapatnam, and when he got released the scooter from the police station, he was informed by police that one "Madhu", nephew of the respondent, has driven his scooter on 4-11-1987 and caused the accident. The respondent stated that when he was out of Visakhapatnam, his nephew Madhu took the scooter without his knowledge and permission on 4-11-1987. He further stated that Madhu contested Calendar Case No.44 of 1988 on the file of the IX Addl. Judicial First Class Magistrate, Visakhapatnam which was registered against Madhu under Section 338 IPC stating that the deceased himself dashed the scooter which was being driven by him without any fault and without any rashness or negligence on his (Madhu's) part and the criminal Court acquitted the said Madhu. It was also stated that the during the course of trial in the criminal Court, police did not alter the case from Section 338 IPC to any other section under the Indian Penal Code and there was no post-mortem examination conducted on the dead body of the deceased. The respondent contended he is innocent and not liable to pay compensation. He stated that by the date of the alleged accident, the vehicle was not insured and so the Motor Accidents Claims Tribunal has not jurisdiction to try the original petition.
4. On the basis of the pleadings of the parties, the Tribunal framed the following issues for trial:
(1) Whether the accident occurred and the deceased died due to the rash and negligent driving of the scooter AEV 3448 by its driver?
(2) Whether the petition is not maintainable on the point of jurisdiction?
(3) Whether the petitioners are entitled for compensation, if so, to what amount?
(4) Whether the respondent is liable to pay the compensation?
(5) To what relief?
5. In the Tribunal, the claimants/ appellants herein have examined PWs.1 to 3 and marked Exs.A1 to A4. The respondent examined himself as RW1 and marked Ex.B1, his tour programme.
6. The Tribunal, on consideration of the oral and documentary evidence on record, held that there was no material to show that the respondent drove the scooter and he caused the accident on 4-11-1987, the date on which the accident took place. The respondent is a Junior Engineer in BHPV Limited, Visakhapatnam. Relying on the evidence of RW1, the respondent and Ex.B1 tour programme of the respondent, the Tribunal held that one Madhu, the nephew of the respondent has caused the accident. However, even though according to the learned Judge, the deceased died nearly after six months of the accident, relying on the evidence of PW3, the doctor, the learned Judge gave a finding that there is no nexus between the death of the deceased and the accident and considering the material on record and the evidence, the learned Judge granted a compensation of Rs.8,000/-
7. Aggrieved by the said order, the present CMA is filed by the claimants.
8. Heard the learned Counsel for the appellants and the learned Counsel for the respondent. Perused the record and the order and decree under appeal.
9. Counsel for the appellants contended that the facts of the accident are not in dispute and the learned Judge also given a finding that the accident was caused due to the rash driving of the scooter by one Madhu, nephew of the respondent and having given such finding granting a meager amount of Rs.8000/-. According to the Counsel, the amount granted is very meager and the findings are perverse.
Counsel for the appellants further contended that even though the deceased died after six months of the accident, the evidence of the doctor PW3 who examined the deceased, a reputed Professor in Visakhapatnam, supports the case of the appellants that the deceased died due to the complications that have arisen to him out of the injuries sustained by him in the accident. Counsel contended that the Tribunal ought to have granted the compensation as prayed for by the appellants in the OP.
10. Counsel for the respondent contended that the award of the Tribunal granting a compensation of Rs.8000/- is perfectly justified and there is no ground to interfere with the same. He submits that the learned Judge, even though there is no evidence that the respondent has caused the accident, has stretched long and awarded the sum of Rs.8000/-. That itself is a very high amount and when once the learned Judge has given a finding that the respondent is not responsible for the accident he ought to have dismissed the OP in toto and instead of that he has granted Rs.8000/-. He further contended that there is no evidence to show that the death of the deceased is caused due to the injuries suffered by him in the accident. Counsel for respondent relied on the decisions--(1) Fakirappa Hanumanthappa v. Babulal Makabal Sab, 1976 ACJ 487 and (2) Chandrakant Parsekar v. Rosy Simoes, 1995 ACJ 767. Deriving support from the principle laid down in Fakirappa's case (supra), learned Counsel for the respondent submitted that in this case there is no evidence to show that the deceased died due to the multiple complications that have arisen out of the injuries suffered by him in the accident in question.
11. In view of the rival contentions, the following points would arise for consideration:
(1) What is the effect of the maxim/ doctrine "actio personalis mortiur cum persona" on the facts of this case, and whether the appellants are entitled to any compensation or relief, due to the injuries suffered by the deceased in the accident?
(2) Whether the owner of the scooter, 2nd respondent, can escape liability to pay compensation on the ground that he has, not driven the scooter (and that his nephew drove the same), and what is the vicarious liability of the owner of the scooter?
(3) .........
12. Point No.1: Reg: Applicability of the doctrine/maxim "actio personalis mortiur cum persona" etc :--Before proceeding to consider point No.1, the principles laid down in Fakirappa's case (supra) and Chandrakant Parsekar's case (supra), and a resume of the evidence on record required to be noted.
13. In Fakirappa's case (supra), a Division Bench of the Karnataka High Court held that the legal representatives of the deceased person who died in a motor accident are not entitled to file an application for compensation under Section 110 of the Motor Vehicles Act unless the death has resulted from the motor accident.
14. In Chandrakant Parsekar's case (supra), a Division Bench of the Bombay High Court held that if a vehicle is borrowed by a third party from its registered owner and if the borrower causes any accident, the registered owner of the vehicle is not liable to pay compensation to the injured or the dependants of the deceased who died in such an accident.
15. A careful scrutiny of the evidence on record and the order under appeal in this case, no doubt, reveal that the learned Judge found that the respondent has not committed the accident. But at the same time, according to the own showing of the respondent, and the averments made by the respondent in his counter, his nephew Madhu has driven the scooter on the date of the accident (4-11-1987) and that the said Madhu caused the accident. The deceased Shyamsundara Rao suffered fracture to his left leg and he was treated in the Government hospital. The medical evidence of PW3 supports the version of the appellants that Shyamsundara Rao was treated in the hospital as in-patient. As per the evidence of PW3, the Doctor, Shyamsundara Rao was admitted in the King George Hospital, Visakhapatnam on 5-11-1987 for fracture of both bones of his left leg and was discharged from the hospital on 7-11-1987. Again, Shyamsundara Rao was examined on 2-4-1988 and on that day, and it was found that the fracture was healed and he was advised to come to the hospital for check up after six weeks thereafter he did not go to the hospital and subsequently he died on 9-5-1988. So, as rightly held by the learned Judge, there is absolutely no evidence to show as to what happened to Shyamsundara Rao after he has taken the treatment in the hospital for the last time on 2-4-1988.
16. Dealing with the aspect of applicability of the maxim "actio personalis mortiur cum persona", (i.e., personal action dies with a person) to motor accidents claims, a learned single Judge of this Court (Justice Ramakrishnam Raju) in Nurani Jamal v. Naram Srinivasarao, 1994 ACJ 222, elaborately discussed the same after considering number of judgments. In that case, originally the claimant filed a compensation petition for the injuries sustained by him in a motor accident. During the pendency of that OP he met with another accident and died. The legal heirs of the deceased filed implead petition. The said petition was dismissed by the trial Court. Aggrieved by the dismissal of the implead petition, the legal heirs filed CRP. This Court considered the question whether the claim for damages survives after the death of the injured in a motor accident, and whether the legal representatives can continue the action if there is loss to the estate of the deceased. The question was answered in the affirmative by this Court and it was held that the action for damages for personal injuries will not die with the death of the injured and the maxim "actio personalis mortiur cum persona" has no application where there is loss to the estate of the deceased. The learned Judge has relied on the decision of this Court in Kongara Narayanamma v. Uppala China Simhachalam, 1975 ACJ 448 (AP), wherein a learned single Judge of this Court (Justice M. Krishna Rao), while considering the applicability of the maxim "actio personalis mortiur cum persona" held:
"In making a claim, a claimant could claim loss to his property of whatever description caused by the accident. There is no warrant for holding that the cause of action in respect of that loss would not survive to the legal representatives. In Halsbury's Laws of England, Vol.28, page 100, it was stated that it was well settled that under the head 'loss to the estate of the deceased; damages could be claimed towards pain and suffering, loss of earnings and other damages actually suffered by the victim between the date of the accident and the moment of death, damages towards loss of personal property and damages towards loss of expectation of life may be awarded. If after the death of a person injured, the legal representatives could claim for pain and suffering, loss of earnings as loss to the state, I fail to see on what principle, if a claim was made by an injured person and he dies thereafter, the cause of action would not survive to the legal representatives".
17. The Division Bench of the Karnataka High Court in Fakirappa Hanumanthappa v. Babulal Makabal Sab, 1976 ACJ 487 (supra) has taken the view that the legal representatives cannot claim compensation due to the injuries suffered by the deceased until and unless the injuries resulted in the death. Even though the facts in the present case on hand do not clearly establish that the deceased died because of the said accident and even though there is no evidence to that effect, the appellants are entitled to compensation for the injuries suffered by the deceased. Apart from that, the claim petition shows that the claimants claimed an amount of Rs.10,000/- towards medical expenses and extra nourishment spent on the deceased and claimed an amount of Rs.20,000/- under the head of general damages apart from Rs.70,000/- claimed for loss of consortium. In view of the finding given by the trial Judge that the death was not caused due to the injuries suffered by the deceased in the accident, the appellants are certainly entitled to minimum amount of Rs.10,000/-towards medical expenses and extra nourishment apart from general damages of Rs.5,000/-. But, at the same time, they are not entitled to loss of consortium because they failed to establish the cause of the death is due the injuries suffered by the deceased in the said accident. Therefore, in view of the above discussion, and following the decisions of this Court in Nurani Jamal v. Naram Srinivasarao, 1994 ACJ 222 and Narayanamma v. Uppala China Simhachalam, 1975 ACJ 444 (AP) (supra), I hold that the maxim/doctrine "actio personalis mortiur cum persona" has no application to the case on hand, and the appellants/claimants are entitled to a total compensation of Rs. 15,000/-. Point No.1 is answered accordingly.
18. Point No.2: Reg. Vicarious liability of the owner of the vehicle :
Regarding this point, whether the owner of the scooter, even though he has not caused the accident, is in any way responsible for payment of compensation, learned Counsel for respondent, relying on the decision of the Bombay High Court in Chandrakant Parsekar v. Rosy Simoes, 1995 ACJ 767, contended that if a third party borrows a vehicle from the owner and caused an accident as held by the Bombay High Court that the owner is not liable to pay any compensation.
19. The facts in Chandrakant Parsekar v. Rosy Simoes, 1995 ACJ 767 are that on 20-12-1985, the deceased, Maria Simoes, aged 20 years, daughter of the first respondent/claimant therein, and one Pascoal Fernandes (respondent No.2 therein, to whom Maria Simoes was proposed to be married), were riding a motor cycle belonged to the appellant therein and which was borrowed by Fernandes and the son of the first respondent therein. When the motor cycle was being driven on a public road at Arpora (Goa), it had an impact on a roadside turn of a tree that had fallen on the ground. The motor cycle skidded after the impact, thereby causing the death of Maria Simoes/daughter of respondent No.1 therein. After recording evidence, the Tribunal held that the insurance company was not liable to pay any compensation, as the liability for the death of the pillion rider was not covered by the policy. The Tribunal held that the driver of the motor cycle Pascoal Fernandes was negligent in driving the motor cycle and fixed the liability on Fernandes, driver of the motor cycle as well as the owner of the same. The driver of the motor cycle Fernandes, did not file any appeal. However, aggrieved by the same, the owner of the motor cycle filed appeal contending that his motor cycle was gratuitously borrowed by Fernandes and the son of the first respondent therein; the deceased Maria was travelling on the motor cycle as a pillion rider gratuitously; and no vicarious liability could be fixed upon the owner of the motor cycle according to the principles governing the law of Torts in that behalf. After considering the matter, the Court held that a person, who had gratuitously borrowed the vehicle, could not make the owner of the vehicle responsible for the unfortunate incident which had occurred on account of the negligent driving of the motor cycle by Fernandes. Ultimately, the Court set aside the award against the owner of the motor cycle, in the fact-situation of that particular case.
20. But, in Oriental Insurance Co., Ltd. v. S.A. Gafer, 1989 ACJ 938, a learned single Judge of this Court (K. Ramaswamy, as His Lordship then was), in an identical set of facts, dealing with 'vicarious liability' of the owner of a motor vehicle for the accident caused by another person driving the motor vehicle, and referring to a number of rulings, held:
"The person in possession of the vehicle must be initially presumed to be the owner unless it is established otherwise. When a vehicle is used in a public place and the accident is caused due to the rash and negligent driving of the driver of the vehicle or the person who drives the vehicle, and the vehicle is put to use in a public place with the permission of the owner, express or implied, the owner is vicariously liable with the user of the vehicle for the injuries caused to the victim and therefore the insurance company having undertaken the liability to indemnify the owner of the tortious act committed is coextensively liable for the damage caused".
21. In this case, the evidence of RW1 shows that his nephew (Madhu) has taken his scooter. There is no mention about whether he has given his consent or not to his nephew to use the scooter. This was not proved beyond doubt, and the said Madhu was not examined before the Tribunal.
22. The view taken by the learned single Judge of this Court in Gofer's case (supra) was followed by the Delhi High Court in Radha Kishan Sachdeva v. Flt.Lt. L.D. Sharma, 1994 ACJ 109. Therefore, I hold that when once a motor vehicle was found in the custody of some third party and if that third party causes any accident, the presumption is that the motor vehicle was used with the consent of the owner thereof, until and unless the contra factual situation is established by acceptable evidence, i.e., there must be a criminal complaint of theft given by the owner of the motor vehicle against third party. If there is no such evidence, the presumption is that the owner of the vehicle has agreed to use the vehicle by the third party.
23. In view of the above discussion, and following the judgment of this Court in Oriental Insurance Co., Ltd. v. S.A. Gofer's case (supra) which was followed by the Delhi High Court in Radha Kishan Sachdeva v. Flt. Lt.L.D. Sharma (supra), on point No.2, I hold that the owner of the scooter in this case, respondent-herein, is liable to pay compensation.
24. As I have already mentioned in the earlier part of this order, the claimants are entitled to a sum of Rs.10,000/- under the head of medical expenses and extra nourishment, besides a sum of Rs.5,000/- as general damages. The Tribunal, in all, awarded a total compensation of Rs.8,000/-only.
25. Having regard to the facts and circumstances of the case, I hereby grant a sum of Rs.10,000/- under the head of 'medical expenses and extra nourishment' and a further sum of Rs.5,000/- as 'general damages'. In all, the appellants are entitled to a total compensation of Rs.15,000/- as against the sum of Rs.8,000/- granted by the Tribunal.
26. In the result, the appeal is partly allowed granting a total compensation of Rs.15,000/- in favour of the appellants and against the respondent, with interest at 12% p.a. from the date of filing of OP till realisation with proportionate costs. In other respects, the order of the Tribunal shall stand confirmed. There shall be no order as to costs.