Andhra HC (Pre-Telangana)
Kollipara Veera Raghavamma And Anr. vs S. Raghavaraju And Ors. on 21 September, 1995
Equivalent citations: 1996(3)ALT483
Author: Syed Saadatullah Hussaini
Bench: Syed Saadatullah Hussaini
JUDGMENT Syed Saadatullah Hussaini, J.
1. This Letters Patent Appeal is filed against the judgment of a learned single Judge in A.A.O.No. 1045 of 1984, dismissing it by order dated 30-11-1988 confirming the judgment of the Motor Vehicles Accidents Claims Tribunal (I Additional District Judge, Guntur) in Original Petition No. 482 of 1982, dated 19-3-1984.
2. The claimant, appellants herein, are the parents of the deceased boy-aged 17 years who died in an accident on 22-5-1982 at about 8.00 pm. While the deceased was going on cycle, the lorry APK 2045 proceeding from Kollipara to Tenali, owned by respondent No. 1, dashed against the cycle at Nandivelugu village on Guntur - Kollipara road and the deceased fell down and died instantaneously. The appellants herein filed claim petition alleging that the death of the boy was due to rash and negligent driving of the vehicle by respondent No. 2 - driver. Respondent No. 3 Insurance Company with which the vehicle was insured contested the claim petition. Respondent Nos. 1 and 3 took the plea that the vehicle had dashed against a poll and the death of the deceased was not due to the rash and negligent driving of the vehicle by respondent No. 2.
3. The Tribunal on an appreciation of the oral and documentary evidence held that rash and negligent driving by respondent No. 2 has not been proved and dismissed the claim. In the appeal before the High Court, a learned single Judge of this Court considered only the evidence of P.W.3 and rejected it as being not trustworthy. The learned Judge held that there is no word in the evidence that the deceased fell under the wheels of the vehicle and that any part of the vehicle ran over him; obviously, P.W3 is a set-up witness.
4. We have gone through the evidence of P.W.3 and of P.Ws. 1 and 2 who are the parents of the deceased. The evidence of P.W.3 cannot be disregarded, for, it has been specifically stated in his evidence that he saw the accident and that he has specifically stated that "the accident occurred at about 8.00pm. The deceased was going on a cycle. A lorry bearing No. APK 2045 was coming in speed and he did not blow horn. The place of accident is very busy/hit the deceased and he fell down. He died on the spot"
5. This version of P.W.3 was not challenged in the cross-examination. There was not even a suggestion to the effect that P.W.3 did not witness the occurrence. His evidence was rejected merely on the ground that he was not examined in the criminal case filed against the driver which ended in acquittal. We do not think that merely because the witness was not examined in the criminal case his evidence can be rejected. We are fortified in this view by a decision of this Court reported in APSRTC v. Sravaji Aruna, . We therefore, accept the evidence of P.W.3 that the accident was due to rash and negligent3 driving of the vehicle by respondent No. 2 driver. It is significant in this case that the driver of the lorry, who is respondent No. 2, remained ex parte. He was not examined by the respondents to speak as to how the accident actually happended. The owner of the lorry, respondent No. 1, who examined himself as R.W.1, asserted that the accident was not due to rash and negligent driving of respondent No. 2. But, admittedly, he was not an eyewitness. We do not want to place any reliance on his evidence. In the circumstances, we hold that the death of the deceased boy was due to rash and negligent driving of the lorry by respondent No. 2.
6. The learned counsel appearing for respondent No. 3 raised a preliminary objection with regard to the maintainability of the appeal placing reliance on a Division Bench decision of this Court reported in Sharifa Bee v. APSRTC, 1990 (3) ALT 628 which held as follows:
"It is necessary to take out notices to a party respondent who has remained ex parte in the lower Court, by impleading him in the appeal as a respondent, for the purpose of a decision in the main appeal........."
7. In this case, respondent No. 2 remained ex parte in lower Court and no notice was taken out to him in the appeal and in this appeal before us. The above said case proceeded as if the Civil Procedure Code is applicable to the claim petitions under the Motor Vehicles Act, 1988. The procedure applicable to the Motor Vehicles Accidents Claims Tribunals is framed under the A.P .Motor Vehicles Rules, 1964. Rule 517 of the Rules is in the following terms:
"517 (1) Notice to parties involved - If the application is not dismissed Under Rule 516, the Claims Tribunal shall send to the owner of the motor vehicle involved in the accident and its insurer, a copy of the application, together with a notice of the date on which it will hear the application, and may call upon the parties to produce on that date any evidence which they may wish to tender."
8. Under the above Rule, the requirement is only that the Claims Tribunal should send notice to the owner of the motor vehicle involved in the accident and its insurer and not to the driver. We have gone through the above judgment and this Rule 517 of the A.P. Motor Vehicles Rules, 1964 was not brought to the notice of the Division Bench. Had this Rule been noticed by the Division Bench, the Division Bench could have reached a contra decision. In Kranth Sangram Prishath v. Sri N. Janardhan Reddy, (F.B.), a Full Bench of this Court held as follows:
"There is no dearth of decisional law on 'per incuriam' an English Law doctrine adopted by our law. Very rarely this doctrine is invoked and its application is limited to 'decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some inconsistent statutory provision or of some authority binding on the Court concerned' (See Morelle v. Vakeling, (1995) 2 Q.B. 379)"
9. We, therefore, declare that the judgment rendered in Sharifa Bee v. APSRTC (2 supra) is per incuriam. In claims before the Motor Vehicles Accidents Claims Tribunal, notice to the driver is totally unnecessary and we hold that the appeal is maintainable.
10. With regard to the quantum of compensation, the claimants have restricted their claim in the appeal before us to Rs. 48,000/-. The deceased was only a boy of 17 years and on the date of the accident i.e., on 22-5-1982 he had already appeared for the H.S.C. examination and the results were announced after his death and he passed the H.S.C. examination in higher II class, just missing the I class by two marks. Following the decision reported in Bhagwandas v. Mohd. Arif, , we hold that the appropriate multiplier is 20. The father of the boy was doing coffee business and it is also stated that on holidays the deceased was assisting him at his shop. It is also in the evidence that his other sons are all graduates. P.W.I has also stated that he wanted to make his son a doctor. We have observed that the age of the father at the time of the accident is 49 and that of the mother is 45. Had the boy been alive, he could have become at least a graduate at the age of 21 and started earning at the age of 22. He would have earned at least Rs. 2/000/- p.m. and further, if we take, he would have been married at the age of 27 years, during this five years period, he would have helped his parents with a sum of Rs. 1,500/- p.m., keeping Rs. 500/- for his personal expenses. Calculating at this rate the financial dependency of the parents would have been Rs. 90,000/- for these five years period only. After marriage it is reasonable to assume that he would have at least helped his parents by an amount of Rs. 500/- pm. If we take the longevity of the parents to be 65 years, the financial dependency of claimant No. 1, further, would have been for 11 years and of claimant No. 2, mother, would have been for 15 years. The financial dependency of the claimants for these 11 years would have been Rs. 66,000/-. The claimant No. 2, mother, would have lived for four more years after the death of claimant No. 1 and would have received at least half of the amount of Rs. 500/- i.e, Rs. 250/- pm for a period of four years which comes to Rs. 12,000/-. Therefore, the total compensation would come to Rs. 1,68,000/-. Even if we reduce it by half towards unforeseen contingencies, it would come to Rs. 84,000/-. But, in this case the claimants have asked for only Rs. 48,000/-. We, therefore, pass an award for a sum of Rs. 48,000/- to the claimants towards compensation with interest @ 10 per cent per annum from the date of the petition. The respondents are liable to pay this amount jointly and severally. The compensation awarded should be shared equally by bom the claimants. The claimants are not illiterate persons. The claimant No. 1 is a businessman. Having regard to the long time that had elapsed between now and the date of the accident, we are of the view that the claimants should be permitted to withdraw some amount
11. Out of the compensation of Rs. 48,000/- so awarded, an amount of Rs. 24,000/- each in the name of claimant Nos. 1 and 2, shall be kept in fixed deposit in a nationalised bank for a period of ten years and the interest accrued thereon from the date of the petition and the balance of the compensation amount and costs shall be paid to the claimants jointly. The interest accrued on the amount lying in fixed deposit shall be paid quarterly to the claimants. The Tribunal will ensure that the entire amount is first deposited in savings bank account in the names of the claimants. The bank shall not advance any loan against the fixed deposit receipts. The Letters Patent Appeal is allowed with costs.