Andhra Pradesh High Court - Amravati
M/S.Shriram General Insurance Company ... vs V.J.Radhika, on 7 December, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
M.A.C.M.A. No.456 OF 2020
JUDGMENT:-
This M.A.C.M.A. is directed against the award, dated 11.12.2019 in M.V.OP.No.132 of 2018, on the file of Motor Accident Claims Tribunal-cum-IX Additional District Judge, Chittoor ("Tribunal" for short), by the unsuccessful third respondent/Insurance Company.
2) The parties to this MACMA will hereinafter be referred to as described before the learned Tribunal for the sake of convenience.
3) The respondent Nos.1 and 2 herein are the claimants in M.V.O.P.No.132 of 2018, who filed the claim under Section 166 of Motor Vehicles Act, seeking to award compensation of Rs.20,00,000/- for the death of their son in the motor vehicle accident, in which the Auto bearing Registration No.A.P.03-TE-7934 ("offending vehicle" for short) involved and the first respondent was the driver and the second respondent was the owner.
4) The case of the claimants, in brief, as set out before the learned Tribunal, is that the claimants are the parents of one V.J. Vighnesh (hereinafter will be referred to as "deceased"). 2 The first respondent was the driver of offending vehicle. The second respondent was the owner of the said offending vehicle. The third respondent was the insurer of the second respondent vehicle. The deceased was hale and healthy and was aged about 20 years as on the date of accident. He was studying B. Tech III year in Sri Venkateswara College of Engineering and Technology, RVS Nagar, Tirupati Road, Chittoor. On 08.05.2017 at about 1-30 a.m., on Chittoor-Puttur Road, the son of the claimants was proceeding on motorcycle bearing Registration No.PY-01-CG-1103 towards Puttur side. By then the offending vehicle driven by the first respondent in a rash and negligent manner came in opposite direction and dashed the motorcycle due to which, the deceased fell down on the left side of the road and received head injury and died. He was shifted to Government Hospital, Chittoor. Basing on the report given by the second claimant, a case in Crime No.41 of 2017 was registered. The deceased was the only son of the claimants and due to sudden demise of him, they lost their only son who would look after them had he been alive. Hence, the petition.
5) The second respondent got filed written statement which was adopted by the first respondent. The contention of the respondent Nos.1 and 2 according to the written statement of the second respondent is that there is no negligence on the 3 part of the first respondent driver of the vehicle. The deceased himself suddenly crossed the road in a drunken condition without observing the vehicle belonging to the second respondent. The traffic police falsely registered the case against the first respondent in Crime No.41 of 2017 under Section 304-A of Indian Penal Code and Section 134(A) and (B) and Section 3 r/w 181 of M.V. Act to help the claimants. The second respondent insured the offending auto with the third respondent vide Policy No.417053/31/18/000037. It was in force as on the date of accident. The validity of the policy was from 08.04.2017 to 07.04.2018. Hence, the second respondent is not liable to pay any compensation to the claimants and the third respondent alone is liable to pay compensation. Hence, the petition is liable to be dismissed.
6) The third respondent/insurance company before the learned Tribunal filed a written statement contenting in substance that the third respondent is not aware that the accident took place only on account of the rash and negligent driving of the driver of the driver i.e., first respondent and thereby the second respondent is vicariously liable. The driver of the offending vehicle, who allegedly caused the accident, had no driving license to drive the offending vehicle and he was not qualified for holding or obtaining such driving license. The 4 second respondent willfully and knowingly allowed the vehicle to be driven by a person, who had no valid driving license as on the date of accident, as such, there was a contravention of the provisions of the Motor Vehicles Act. Hence, the second respondent alone is liable to pay compensation and the claim against the third respondent is to be dismissed. It is the duty of the second respondent to furnish the particulars of the policy, date, time and place of accident. It is also the duty of the police to forward all the relevant documents to the concerned insurer. The petition is bad for non-joinder of owner and insurer of the motorcycle bearing No.PY-01-CG-1103. The compensation claimed is excessive. Hence, the petition is liable to be dismissed.
7) On the basis of the above pleadings, the learned Tribunal settled the following issues:
(1) Whether the accident was occurred due to rash and negligent driving of the driver of the auto bearing No.A.P.03-TE-7934 or due to rash and negligent riding of the rider of the motorcycle bearing No.PY-01-CG-1103 or by both?
(2) Whether the petition is bad for non-joinder of necessary parties?
(3) Whether the claimants are entitled for any compensation, if so, to what quantum and from whom? 5 (4) To what relief?
8) During the course of trial, the first claimant got herself examined as P.W.1 and further examined one K.J. Ganesh, the so-called direct witness to the occurrence as P.W.2 and further got marked Ex.A.1 to Ex.A.8. On behalf of the 3rd respondent, the Sub-Inspector of Police, who investigated the criminal case was examined as R.W.1 and further the representative of the third respondent was examined as R.W.2.
Ex.B.1-the insurance policy was marked on behalf of the third respondent.
9) The learned Tribunal on hearing both sides and on considering the oral as well as documentary evidence, answered the issues Nos.1 to 3 in favour of the claimants. While holding so, the learned Tribunal awarded compensation of Rs.18,44,400/- and directed the third respondent to first pay the award amount within 30 days from the date of award and recover the same from the respondent Nos.1 and 2 i.e., driver and owner of the offending vehicle. The learned Tribunal made finding that the first respondent had not possessed a valid driving license to drive the offending vehicle, as such, ordered to pay and recovery. Felt aggrieved of the award, dated 11.12.2019, the third respondent filed the present MACMA. 6
10) Now in deciding this MACMA, the points that arise for consideration are as follows:
(1) Whether the award, dated 11.12.2019 in M.V.O.P.No.132 of 2018, on the file of Motor Accident Claims Tribunal-cum-IX Additional District Judge, Chittoor, is sustainable under law and facts and whether there are any grounds to interfere with the same?
(2) To what relief?
Point Nos.1 and 2:
11) Sri Gudi Srinivasu, learned counsel appearing for the appellant, would contend that the FIR was registered after about seven months after the date of occurrence and the offending vehicle was planted according to the defence of the appellant.
He would submit further that P.W.2 who deposed as if he was a direct witness to the occurrence was unnatural witness. He was resident of Chennai. He claimed his presence at the time of accident during midnight. Neither he lodged any report with the police nor he come forward before the police to give about the particulars of the offence. After about seven months only he claimed to have brought the facts to the notice of the police. His conduct in this regard is suspicious. Initially the police investigated the case and filed referred charge sheet on the ground that the vehicle caused the accident is not traceable as it is unknown vehicle. Later, he claimed to have reopened the 7 case basing on the so-called letter of P.W.2 which was sent to Superintendent of Police concerned. The said letter was not filed before the learned Tribunal. P.W.1 was not a direct witness to the occurrence. She was only hearsay witness. Though the date of accident was on 08.05.2017, the police could ascertain the particulars of the first respondent and particulars of the offending vehicle after about seven months and it is wholly suspicious. The offending vehicle was planted by the respondent Nos.1 and 2 in collusion with the police. Police simply filed the charge sheet to help the claimants. The first respondent had no valid driving license. His driving license was expired in the year 2005 according to the findings made by the learned Tribunal with reference to the Motor Vehicle Inspector's report. When that is the case, there was no justification for the learned Tribunal to order the third respondent to pay the compensation and to make recovery thereof from the respondent Nos.1 and 2. The learned Tribunal considered the income of the deceased as that of Rs.12,000/- per month, though the claimants failed to prove that the deceased completed B.Tech and the learned Tribunal erred in awarding future prospects. At any rate, the award of the learned Tribunal need interference, as such, he sought to allow the MACMA.
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12) In spite of the opportunity given, no arguments are advanced on behalf of the respondent Nos.1 and 2, though they engaged counsel.
13) P.W.1 before the learned Tribunal was no other than the first claimant who got filed her chief examination affidavit putting forth the facts in tune with the pleadings. Through her examination, Ex.A.1 to Ex.A.8 are marked. Ex.A.1 is the certified copy of FIR in Crime No.41 of 2017 of Chittoor Traffic Police Station. Ex.A.2 is the certified copy of charge sheet. Ex.A.3 is the certified copy of inquest report. Ex.A.4 is the certified copy of M.V. Inspector's report. Ex.A.5 is the certified copy of postmortem report. Ex.A.6 is the certified copy of accident information report. Ex.A.7 is the bonafide certificate, dated 05.11.2018 issued by Sri Venkateswara College of Engineering and Technology, Chittoor. Ex.A.8 is the student I.D. card of the deceased.
14) The claimants got examined K.J. Ganesh as P.W.2. He filed his chief examination affidavit which is to the effect that on 08.05.2017 at about 1-30 a.m., he was going by walk on Chittoor-Puttur road in front of Sagar Wines, Kongareddipalli, Chittoor Town and District to go to Tiruthani to catch the private vehicles, near bye-pass road due to his urgency work as there was no buses in the bus stand by then. At that time one boy, 9 aged about 20 years, was going in a motorcycle bearing Registration No.PY-01-CG-1103 proceeding towards Puttur side on the left side of the road very slowly and cautiously. At that time, an Auto bearing Registration No.A.P.03-TE-7934, driven by its driver in a rash and negligent manner came in opposite direction and dashed against the motorcycle as a result the motorcyclist fell down on the left side of the road and received head injury. He also received injuries all over the body and died on the spot due to negligent act of the auto driver. Due to urgency and fear, he went away from the place of accident. He informed the same to the Superintendent of Police through letter narrating the incident and involvement of the vehicle. Later, police examined him and recorded his statement.
15) The evidence of R.W.1, the Sub Inspector of Police, who investigated the case, is that previously he worked as Sub Inspector of Police, Traffic Police, Chittoor. He investigated Crime No.41 of 2017 for the offence under Section 304-A of IPC and Section 134 (A) and (B), Section 3 r/w 181 of M.V. Act. As there are no eye witnesses, initially he filed referred charge sheet, as vehicle is not traced, as it is unknown vehicle. Subsequently, he received a letter, dated 13.12.2017 from Superintendent of Police for further investigation and the same was received by him on 05.02.2018. One Ganesh gave letter to 10 the Superintendent of Police. The Photostat copy of the said letter is in his CD file. The original letter was filed in the Court. The said letter is in English. There are no CC Cameras in working condition nearby the place of accident. In the year 2015 the police installed CC Cameras in Chittoor Town. After examining six witnesses, as they did not state anything he filed referred charge sheet. L.W.12-A. Manigandan and L.W.13- K.Payani who are cited as witnesses in charge sheet No.82 of 2018 are not the official witnesses. The parents of the deceased were not present at the time of recording confessional statement of accused. L.W.12 and L.W.13 are not relatives of the deceased. He recorded the statement of K.J. Ganesh (L.W.7) by calling him to the police station. He recorded the statements of L.W.7, L.W.8, L.W.12 and L.W.13 in traffic police station.
16) The representative of the third respondent viz., A. Rajasekhar Reddy, the Legal Officer, got filed his chief examination affidavit. The deposition of R.W.2 is to the effect that P.W.2 sent a letter to the Superintendent of Police, Chittoor as if he was eye witness to the occurrence and the police investigated the case and filed the charge sheet. The claimants got implanted the crime vehicle and managed everything to get compensation. There is no involvement of the offending vehicle. The claimants influenced the police and got registered a case 11 with false allegations. The first respondent had no valid driving license. The second respondent violated the terms and conditions of the policy by handing over the offending vehicle to the first respondent. Police also filed charge sheet against the driver of the offending vehicle under Section 3 r/w 181 of the M.V. Act. Hence, the third respondent is not liable to pay any compensation.
17) In deciding this MACMA, firstly, this Court would like to deal with as to whether the deceased died on account of rash and negligent act of the driver of the offending vehicle. Admittedly, according to P.W.1, she was not a witness to the occurrence. There is also no dispute that in Ex.A.1, the report lodged by P.W.2, there is no mention about the name of the driver or registered number of the offending vehicle. Admittedly, when the parents of the deceased were not witnesses to the occurrence and they came to know about the accident after the death of the deceased Ex.A.1 was not supposed to contain the particulars of the offending vehicle and the driver. It is no doubt true that the police could ascertain the role of the first respondent and the involvement of the offending vehicle in the accident basing on the so-called information furnished by P.W.2 to the Superintendent of Police after about seven months subsequent to the incident. Though the FIR was 12 registered promptly on the date of incident itself, but there was delay on the part of police in ascertaining the involvement of the offending vehicle and ascertain the role of the driver of the offending vehicle. Merely because there was slackness on the part of police and delay in the investigation, the case of the claimants cannot be thrown out. In a case like a claim under M.V. Act, the Tribunal has to consider only the preponderance of the probabilities. So, looking into the preponderance of the probabilities, the Tribunal has to give finding as to whether there was rash and negligent act on the part of the driver of the offending vehicle. While dealing so, the learned Tribunal is not supposed to look into as to whether the claimants proved the case beyond reasonable doubt. The standard of proof like in criminal case cannot be applied in a claim under Motor Vehicles Act.
18) To test the veracity or otherwise of P.W.2, it is pertinent to look into the cross examination part. During cross examination P.W.2 testified that he is doing business in Chittoor, Puttur and Vellore. He does not know Telugu language. The accident took place in midnight. There are no shops near the place. After the accident he left the place and left bye-pass road to catch the bus. The distance between his village to the accident place is 130 Kms. Nobody gave instructions to give 13 report. In Tamil language he drafted the letter and sent to Superintendent of Police, Chittoor after six or seven months after the accident. He got mentioned the number of the crime vehicle in his diary. He did not produce the said dairy into the Court. He denied that he did not see the accident. He denied that as he has acquaintance with the deceased family in order to help them he came to the Court and deposed false. For the past five or six years he is doing business in and around Chittoor. The above are answers elicited on behalf of the third respondent.
19) It is to be noted that as evident from Ex.A.5- postmortem report, the nature of injuries received by the deceased are fractures, contusions and abrasions and further the internal fractures goes to show that it was a case of road accident. Therefore, basing on Ex.A.5-postmortem report it can certainly be said that the deceased received injuries in a road accident. The claimants have to connect the offending vehicle and the first respondent with the road accident which caused the death of the deceased. For that they have chosen to examine P.W.2. Basing on the so-called letter of P.W.2 to the Superintendent of Police, the police further investigated into the case and filed charge sheet. There is no dispute as evident from the evidence of R.W.1 that initially police referred the case as 14 undetectable. Later, after due permission from the Court concerned they further investigated the case and filed the charge sheet. P.W.2 was alone witness to the so-called accident. The answers that were elicited from the mouth of P.W.2 during cross examination probabalizes a contingency for his presence in and around Chittoor for doing his business.
20) To test the veracity or otherwise of the evidence of P.W.2, a probing across examination was made before the learned Tribunal who deposed that for the past five or six years he is doing business in and around Chittoor. Therefore, his evidence in cross examination reveals the reasons as to why he came to Chittoor on the date of accident. It is a case where the police after investigation filed the charge sheet against the first respondent alleging that he caused the death of the deceased by his rash and negligent act. The cause of death was on account of the injuries received in motor vehicle accident. It is worthwhile to make a mention here that absolutely the respondent Nos.1 and 2 admitted in their defence that the vehicle involved in the accident. The contention of the respondent Nos.1 and 2 is that there was no negligence on the part of the first respondent and the deceased suddenly crossed the road and hit the offending vehicle and received injuries. Here the contention of the third respondent is that the 15 claimants, respondent Nos.1 and 2 and police are in collusive force. It is very difficult to accept such contention. The accident was occurred during midnight when there was no probability for more persons to witness the accident. P.W.2, a faraway person from Chittoor, went away to the village after seeing the accident and later chosen to bring the facts to the notice of the police as if he was witness to the occurrence. The standard of proof to prove the rash and negligent act against a driver in the motor vehicle accidents claim was only preponderance of the probabilities. The evidence on record met with such a requirement.
21) It is to be noted that it is the specific contention of the third respondent that the second respondent allowed the offending vehicle to be driven by the first respondent, though the first respondent had no valid driving license. By virtue of such pleadings, the third respondent admitted that the vehicle was driven by the first respondent and the second respondent violating the terms and conditions of the policy handed over the vehicle to the second respondent. This part of contention probabalize the case of the claimants as to the involvement of the offending vehicle and that it was driven by the first respondent. As evident from Ex.A.4-Motor Vehicle Inspector's report, there was a clear whisper that the driving license of the 16 first respondent was expired in September, 2005. It is a case where the police after investigation laid the charge sheet against the first respondent alleging that he had no valid driving license. It is a case where the first respondent did not enter into the witness box to prove his driving license. The third respondent can rely upon the Ex.A.4-Motor Vehicle Inspector's Report to contend that the first respondent had no driving license as on the date of accident. The contention of the third respondent that the police, claimants and the respondent Nos.1 and 2 colluded together and planted the vehicle cannot stands to any reason looking into the aspect that if really the respondent Nos.1 and 2 colluded with the claimants and planted the vehicle, they have got every knowledge that as the first respondent had no driving license whatsoever as on the date of accident there is likelihood of fixing of the responsibility against the respondent Nos.1 and 2 also to pay compensation. In such circumstances, just for the sake of helping the claimants, nobody will come forward inviting legal liability. Having regard to the above, this Court is of the considered view, the contention of the appellant that offending vehicle is planted in the case cannot stands to any reason.
22) Another aspect to be considered here is the contention of the appellant non-joinder of the owner and insurer of the motorcycle riding by the deceased is fatal. It is a case 17 where the respondent Nos.1 and 2 pleaded that the accident was occurred on account of the negligent act of the deceased. If that be the case, definitely, the first respondent would have lodged a report. Under the circumstances, the learned Tribunal rightly found that non-joinder of owner and insurer of the motorcycle is not fatal to the case of the claimants. There is no dispute as evident from the evidence of R.W.2 that the offending vehicle was covered under Ex.B.1-Insurace Policy which was in force as on the date of accident. Under the circumstances, this Court is of the considered view that the claimants being the parents of the deceased are entitled to compensation.
23) Now, this Court has to see as to whether the award of the learned Tribunal awarding compensation of Rs.18,44,400/- is on reasonable basis. Admittedly, the deceased was not an earning member. However, as evident from the evidence of P.W.1 coupled with Ex.A.7-boanfide certificate marked on behalf of the claimants, it is clear that the deceased studied in Sri Venkateswara College of Engineering and Technology, Chittoor, for three years. However, the evidence is not clear as to whether he could complete B.Tech degree after completing IV year study. The evidence is lacking in this regard. However, the learned Tribunal rightly looked into all these aspects properly. Therefore, as on the date of death, the 18 deceased was aged about 20 years and he studied in Sri Venkateswara College of Engineering, Chittor for three years. A contention was canvassed on behalf of the claimants before the learned Tribunal to award huge amount of compensation. The learned Tribunal rightly distinguished the citations filed by the claimants on the ground that the evidence is lacking to prove that the deceased was a meritorious student and he was on the verge of completion of B.Tech.
24) Having regard to the overall facts and circumstances, the learned Tribunal was inclined to take into consideration the income of the deceased had he been alive as that of Rs.12,000/- per month as a salary in a company. The learned Tribunal arrived at the income of the deceased as that of Rs.12,000/- per month basing on the notional theory as an employee in any company.
25) It is to be noted that the deceased pursued B.Tech and he completed three years. He was to about enter into college for completion of IV year. He was not a meritorious student according to the evidence available on record. Therefore, the learned Tribunal rightly turned down the request of the claimants to fix more compensation and took into consideration the income of the deceased as that of Rs.12,000/- per month. There was no dispute that the deceased was a 19 bachelor. In view of the judgment in Sarla Verma and others vs. Delhi Transport Corporation and others 1 , the learned Tribunal applied multiplier 18. The learned Tribunal directed 50% of the amount towards personal expenses of the deceased and further relying upon the decision in National Insurance Company Limited vs. Pranay Sethi and others 2 took into consideration 40% of the future prospectus and arrived at the figure of Rs.4,800/- per month and added the same towards notional income. Therefore, the learned Tribunal on the basis of notional theory and further awarding 40% of the future prospectus arrived at figure Rs.16,800/- and deducted 50% of the amount towards personal expenses and considered the net income of the deceased which he would have contributed towards family as that of Rs.8,400/-. So, by applying the multiplier 18, the learned Tribunal arrived at figure Rs.18,14,400/-. There is no dispute that in view of the Pranay Sethis's case (2 supra), the claimants can be awarded Rs.15,000/- for loss of estate and further Rs.15,000/- for funeral expenses. While considering so, the learned Tribunal awarded compensation of Rs.18,44,400/-. It is a case where the deceased was aged about 20 years. He was pursuing B. Tech and in the event of completion of Degree, he would earn salary. 1 AIR 2009 SC 3104 2 AIR 2017 SC 5157 20 The fixation of the amount as Rs.12,000/- per month by the learned Tribunal is on reasonable basis. Insofar as the assessment of the compensation is concerned, the learned Tribunal made reasonable exercise and awarded just compensation.
26) Having regard to the above, this Court is of the considered view that the amount of Rs.18,44,400/- awarded by the learned Tribunal was on reasonable basis, as such, it need no interference. As already pointed out, the accident occurred was due to rash and negligent driving of the driver of the offending vehicle. The evidence on record quietly probabalize the claim of the claimants in this regard. As the first respondent had no valid driving license, in my considered view, the learned Tribunal rightly directed the third respondent to pay the compensation to the claimants and then to recover the same from the respondent Nos.1 and 2. Hence, the order, dated 11.12.2019 in M.V.O.P.No.132 of 2018, on the file of the Motor Accident Claims Tribunal-cum-IX Additional District Judge, Chittoor, is sustainable under law and facts and it need no interference.
27) In the result, the MACMA is dismissed. There shall be no order as to costs.
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Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt.07.12.2023.
PGR 22 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU M.A.C.M.A.No.456 of 2020 Date: 07.12.2023 PGR