Andhra Pradesh High Court - Amravati
The Medical Officer, Parvatipuram 2 Ors vs Routhu Jayalakshmi 2 Ors on 30 December, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A No.2701 of 2006
JUDGMENT:
1. This appeal under section 173 of Motor Vehicles Act, 1988 (for short M.V Act) is filed, questioning the award passed by Motor Vehicles Accidents Claims Tribunal-cum-I Additional District Judge, Vizianagaram, dated 18.09.2006, whereby the claim of claimants was allowed in part, awarding compensation of Rs.9,92,000/-.
2. First appellant is District Malaria Officer and appellant Nos.2 and 3 are State and State Health Transport Officer, Sajneevareddy Nagar, Hyderabad respectively. The parties to the appeal will be hereinafter referred as arrayed before the Tribunal, for convenience.
3. The petitioners filed petition under Section 166 of M.V Act, claiming compensation of Rs.15,00,000/-. First petitioner is wife and second petitioner is unmarried daughter of deceased Routhu Raminaidu, who died in road accident, occurred on 22.06.2003. On the date of accident, the said Raminaidu, after completion of his work at Bobbili, returning to Salur on motor bike on far left side of road, along with pillion rider, reached near Growth center, Bobbili at about 2:30 p.m, a jeep bearing registration No.AP 35 9668, driven by first respondent in rash and negligent manner, at high speed, dashed against the motor bike of Raminaidu, which resulted in accident and the said Raminaidu died on the spot, whereas, the pillion rider sustained injuries. Immediately, the accident was reported to police, who registered a case in Crime No.65 of 2003 of Bobbili police station for the offence punishable under Section 304-A of Indian Penal Code, against first respondent. The dead body was referred to Government 2 MSM, J Macma_2701_ 2006 Hospital, after conducting postmortem examination, issued postmortem certificate, holding that cause of death is due to injuries received in the accident.
4. The deceased Raminaidu was hale and healthy, working as Line Inspector in A.P Transco, he was earning Rs.12,572.50/- per month, due to sudden death of Raminaidu, petitioners lost dependency and became destitute. Hence, they claimed compensation under various heads.
5. First respondent filed counter, denying material allegations inter alia contending that the deceased Raminaidu was coming from Bobbili to go to Ramabhadrapuram and deceased Raminaidu drove the motor bike at high speed and in rash and negligent manner, hit electrical pole, when first respondent was about to overtake lorry, while going towards Parvatipuram, on observing the motor bike, suddenly applied brakes by first respondent and the jeep turned turtle, without touching motor bike. Thus, the accident was not occurred due to rash and negligent driving of first respondent, petition without adding owner and insurer of motor bike is not maintainable. First respondent also denied the age and monthly income of deceased Raminaidu, requested to dismiss the petition.
6. Second respondent filed counter independently, whereas, respondent Nos.3 and 4 adopted the counter filed by second respondent. Second respondent disputed rashness and negligence on the part of first respondent, while contending that first respondent was about to overtake a lorry, while proceeding towards 3 MSM, J Macma_2701_ 2006 Parvatipuram, on observing motor bike, applied sudden brakes, thereupon the jeep turned turtle, without touching the motor bike, petition without impleading the owner and insurer of motor bike is not maintainable, age of deceased Raminaidu and contribution to family etc., were also denied by respondent Nos.2 to 4, requested to dismiss the petition.
7. Based on the above pleadings, the Tribunal framed the following issues:
1. Whether the accident occurred due to rash and negligent driving of driver of jeep bearing No.AP 35 9668?
2. Whether the petitioners are entitled to any compensation, if so, from which of the respondents?
3. To what relief?
During enquiry, on behalf of petitioners P.W.1 to P.W.3 were examined, marked Exs.A1 to A6. On behalf respondents R.W.1 to R.W.3 were examined, marked Ex.R1.
Upon hearing argument of both the counsel, the Tribunal awarded compensation of Rs.9,92,000/- together with consequential benefits including interest etc, while permitting petitioners to withdraw the amount as per guidelines of Susamma Thomas case, making all the respondents liable to pay compensation, jointly and severally.
8. Aggrieved by the award, the present appeal is filed, while denying rashness and negligence attributed to first respondent and quantum of compensation, including multiplier applicable to age group of 54, income of deceased Raminaidu, including contribution to family by deceased Raminaidu and contended that compensation amount awarded is excessive, when first respondent was not guilty of 4 MSM, J Macma_2701_ 2006 rashness and negligence, question of awarding compensation against any of respondents does not arise, prayed to allow the appeal, setting aside the award passed by Tribunal.
9. Considering rival contentions, perusing material available on record, the points that arise for consideration are:
1. Whether the driver of jeep bearing No.AP 35 9668 is guilty of rashness and negligence, if so the accident occurred due to rash and negligent driving of jeep by first respondent?
2. Whether the respondents are entitled to compensation against any of the respondent, if so at what rate?
10. POINT No.1:-
From the beginning, it is the case of petitioners that the accident occurred due to rash and negligent driving of jeep bearing No.AP 35 9668, which hit the deceased Raminaidu, while he was proceeding on motor bike. Whereas, the defence set up by respondents is that when first respondent intend to overtake a lorry, he noticed the motor bike ridden by deceased Raminaidu, suddenly the first respondent applied brakes, due to that the jeep turned turtle, whereas, the motor bike hit electric pole and deceased Raminaidu succumbed to injuries, instantaneously.
11. To substantiate the contention of petitioners, the person who is direct witness to the accident is examined as P.W.2, besides examining first petitioner as P.W.1. P.W.1 is not an eye witness to the accident admittedly. Therefore, her evidence is of no use to prove rashness and negligence attributed to driver of jeep. Coming to the evidence of P.W.2, he specifically testified that the accident took place 5 MSM, J Macma_2701_ 2006 near Growth center, at about 2:30 p.m. On the date, the deceased was coming from Bobbili on motor bike, on the left side of road, at the same time a jeep came from opposite direction, dashed the motor bike, Raminaidu died on the spot. P.W.2 is rickshaw puller present at Growth center at the time of accident. Thus, he witnessed the accident, personally, that took place at about 2:30 p.m near Growth center. In the cross-examination, counsel for first respondent elicited that P.W.2 was not examined as witness in the criminal case. A suggestion was put to the witness that the accident was not occurred due to rash and negligent act of driver of jeep, P.W.2 did not witness the accident. The suggestion was bluntly denied by the witness. Therefore, nothing could be elicited from the evidence of P.W.2 to disprove the manner of accident, explained by him, in examination in chief.
12. One of the grounds raised before this Court is that non- examination of pillion rider, who sustained injuries in the same accident is fatal and that if the pillion rider is examined, the truth will come out. But the petitioners are required to establish the alleged act of driver of jeep and not required to examine the person who allegedly received injuries in the accident as pillion rider. Therefore, non- examination of pillion rider itself is not sufficient to set aside the award, disbelieving the rashness and negligence attributed to first respondent, since the petitioners established rashness and negligence of first respondent by examining independent witness as P.W.2 i.e. rickshaw puller who was pulling rickshaw at the time of accident and witnessed the accident. Therefore, the evidence of P.W.2 coupled with 6 MSM, J Macma_2701_ 2006 Exs.A1, A3 and A4 are sufficient to conclude that first respondent drove the jeep bearing No.AP 35 9668 in rash and negligent manner, caused the accident which resulted in instantaneous death of Raminaidu.
13. Ex.A2 is postmortem certificate, which would show that cause of death was due to injuries sustained in the accident. Therefore, the cumulative effect of both oral and documentary evidence is that the accident occurred due to rash and negligent driving of jeep by its driver and deceased Raminaidu sustained injuries in the accident, succumbed to injuries instantaneously, this finding is recorded by the Tribunal, based on oral and documentary evidence available on record, which cannot be disturbed lightly on mere raising ground that non-examination of pillion rider is fatal. Therefore, on re-appreciation of entire evidence available on record, it is difficult to come to any other conclusion, than the conclusion arrived by the Tribunal, recording rashness and negligence by the driver of jeep bearing No.AP 35 9668. Therefore, this point is answered against appellants herein/respondents and in favour of respondents herein/claimants.
14. POINT No.2:-
The deceased Raminaidu was aged about 54 years as on the date of accident and the same is supported by postmortem report and other documentary evidence marked as Ex.A2 and A6 driving licence. Thereby, the multiplier applicable to the age group of 51-55 years is
10. The multiplier applicable to age group of 51-55 years is also questioned, but as per judgment of Sarla Verma and others v. Delhi 7 MSM, J Macma_2701_ 2006 Transport Corporation and another1, the multiplier applicable to age group of 51 to 55 years is only 10. The Tribunal rightly concluded that the multiplier applicable to age group of 51 to 55 years is 10.
15. The other factor for assessment of compensation payable under the head of loss of dependency is salary of deceased Raminaidu. Petitioners examined P.W.3 who is U.D clerk, APEPDCL, Bobbili, produced Ex.A5, substantiated that deceased Raminaidu was earning Rs.12,572.50/- per month as gross salary, but the Tribunal did not take into consideration future prospects of age group of 51 to 55 years, but calculated compensation payable to petitioners, applying multiplier. P.W.3 proved that deceased Raminaidu was drawing gross salary of Rs.12,572.50/- per month. When dependents are two including wife and unmarried daughter, 2/3rd shall be taken as contribution to family by the deceased, while deducting 1/3rd towards personal expenses. Therefore, contribution to family per month comes to Rs.8,381.666 paise and the annual contribution to family comes to Rs.1,00,580/- if it is multiplied with 10 it comes to Rs.10,05,800/-, the total compensation under the head of loss of dependency to family comes to Rs.10,05,800/-, but the trial court awarded Rs.9,60,000/-. Apart from that the claimants are entitled to claim compensation under the head loss of love and affection, funeral expenses, loss of consortium and other expenses. Therefore, compensation payable to petitioners comes to Rs.10,37,800/-, but no appeal is filed by claimants. Hence, compensation for death of Raminaidu is limited to Rs.9,92,000/- (Rupees Nine Lakhs Ninety Two Thousand only). As the 1 (2009) 6 SCC 121 8 MSM, J Macma_2701_ 2006 accident occurred due to rash and negligent driving of driver of jeep, as held while answering point No.1, appellants herein and driver of jeep are jointly and severally liable to pay compensation to petitioners. Accordingly, this point is answered in favour of respondents herein/claimants and against appellants herein/respondents.
16. In the result, the appeal is modified, awarding compensation of Rs.9,92,000/- (Rupees Nine Lakhs Ninety Two Thousand only) to respondents/claimants with proportionate costs and interest @ 7.5% per annum, from the date of realization. Time for deposit is 30 days, on such deposit, claimants are entitled to withdraw the eligible amounts as per guidelines in Susamma Thomas case. The claimants are entitled to equal shares in the compensation amount except Rs.15,000/- which is awarded to first claimant towards loss of consortium.
17. Consequently, miscellaneous petitions, pending if any, shall stand closed.
______________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 30.12.2019 Rvk