Mohd. Nizamuddin Another vs Syed Jhahangir Hussain Another

This appeal is filed by the appellants-claimants aggrieved by the order and decree, dated 03.05.2007 passed in O.P.No.664 of 2007 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-Principal District Judge, Medak at Sangareddy (for short “the Tribunal).

Brief facts of the case are that the appellants filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.4,00,000/- for the death of one Mohd. Pasha (hereinafter referred to as “the deceased”). It is stated that on that day, the deceased, along with his friend, was proceeding on Hero Honda Splendor Motor Cycle bearing No.AP 23 L 2913 and when they reached Addagatta Cross Roads on Khajipally-Gaddapotharam Road, one Tipper bearing No.AP 28 X 5532 driven by its driver in a rash and negligent manner at high speed and dashed the motor cycle, due to which the deceased and his friend have fallen down and sustained injuries and the deceased died on the spot. On complaint, a case in Crime No.42 of 2007 has been registered against the driver of the Tipper bearing No.AP 28 X 5532. It is also stated that the deceased was working as Contract Labourer and was earning Rs.6,000/- per month. Due to sudden demise of the deceased, the appellants lost their source of income. The 1st respondent is the owner and the 2nd respondent is the insurer of the Tipper bearing No.AP 28 X 5532, are jointly and severally liable to pay the compensation.

The 1st respondent, owner of the Tipper filed counter denying the averments made in the claim-petition including the manner in which the accident took place, age, occupation and income of the deceased. It is also stated that the Tipper was insured with the 2nd respondent and the policy was in force as on the date of the accident, hence, the 2nd respondent alone is liable to pay the compensation, if any, awarded by the Tribunal.

The 2nd respondent filed counter denying all the averments made in the claim-petition including the manner in which the accident took place, age, avocation and income of the deceased. It is specifically contended that the driver of the Tipper was not holding valid and effective licence at the time of alleged accident. It is further contended that there was no negligence on the part of the driver of the Tipper and the accident occurred due to the negligence of the rider of the Motor Cycle and as such, the claim-petition is bad for non-joinder of necessary parties i.e., owner and insurer of the Motor Cycle. It is also stated that the quantum of compensation claimed is excessive and baseless and prayed to dismiss the petition.

Basing on the above pleadings, the Tribunal framed the following issues:

1) Whether the accident occurred due to the rash and negligent driving of the driver of the crime vehicle?

2) Whether the petitioners are entitled for compensation, if so, at what quantum and from whom?

3) To what relief?

On behalf of the appellants, P.Ws.1 and 2 were examined and Exs.A1 to A6 were marked. On behalf of the respondents, R.W.1 was examined and Exs.B1 to B4 were marked.

After considering the oral and documentary evidence available on record, the Tribunal dismissed the claim-petition holding that the vehicle has been implicated by the police at the instance of the claimants. Aggrieved by the said order, the appellants/claimants filed the present appeal.

Heard both sides and perused the record.

Learned Counsel for the claimants would submit that the Tribunal erroneously not considered the evidence of P.W.2, who is an eye witness to the accident. Further, the contents of Exs.A1 to A3 would show that the driver of the Tipper drove the vehicle in a rash and negligent manner. The insurance company had not produced any contra evidence before the tribunal to prove that there was no rash and negligence on the part of the driver of the offending vehicle. In support of his contention, he relied upon the judgment of the Apex Court in Sunita and others v. Rajasthan State Road Transport Corporation and others (2020) 13 SCC 486. Insofar as the quantum of compensation is concerned, learned Counsel for the appellants/claimants would submit that the deceased was aged about 20 years and he was working as contractor labour and earning Rs.6,000/- per month. Therefore, he seeks to set aside the impugned order of the Tribunal by awarding appropriate compensation.

On the other hand, the learned Standing Counsel for the Insurance Company submitted that there are so many discrepancies in the evidence adduced by the claimants with regard to the involvement of the crime vehicle and, therefore, the Tribunal has rightly dismissed the claim of the claimants and the said order does not require any interference by this Court.

The point that arises for consideration in this appeal is whether the claimants have proved the involvement of the Tipper bearing No.AP 28 Z 5532 in the accident and, if so, what is the just and reasonable compensation to which the claimants are entitled to?

A perusal of the material on record would show that basing on the complaint lodged by one Md.Khaja Pasha, who is the brother of the deceased, a case in Crime No.42 of 2007 of IDA Bollaram Police Station, Medak District was registered on 18.05.2007 to the effect that an unknown vehicle has caused the accident. Even in the inquest panchanama, it is mentioned that one unknown vehicle hit the motor cycle of the deceased. After concluding investigation, a charge sheet has been filed before the Judicial First Class Magistrate, Special Mobile Court, Medak, against the driver of Tipper bearing No.AP 28 X 5532 on 30.05.2007. The contents of the charge sheet would show that after registration of the crime, the Investigating Officer has conducted investigation and during the course of investigation, he has conducted scene observation and rough sketch was drawn, referred the dead body to the hospital for post mortem examination, also held inquest over the dead body of the deceased and also examined the eye witness (P.W.2 herein) to the accident apart from relatives of the deceased and recorded their statements. The contents of the charge sheet further revealed that on 23.05.2007 i.e., within six days after the accident, the 1st respondent herein, who is the owner of the Tipper, has produced the accused person Akula Veeresham, driver of Tipper bearing No.AP 28 X 5532 along with the offending vehicle. On interrogation in the presence of mediators, the driver of the Tipper confessed to have committed the offence. No objection was raised by the respondents at the time of marking the said F.I.R. and charge sheet. P.W.2-eye witness to the accident categorically deposed before the Tribunal that on the date of accident, himself and one Dasarath went to Narsapur for personal work and while returning to Khazipally, when they reached near Addagatta Cross road, they found a Tipper and on seeing them, the driver of Tipper suddenly started the tipper and proceeded towards Khazipally and they found both the deceased were lying by the side of the road. It is no doubt true that P.W.2 was shown as L.W.6 being the eyewitness in the charge sheet. In Sunitha’s case (supra), the Apex Court held that “Claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.” It is also to be noted that in a claim for compensation under Section 166 of Motor Vehicles Act, 1988, the claimants have to prove the incident only on preponderance of probabilities and the standard of proof beyond reasonable doubt is not required as held by the Hon'ble Supreme Court in the decision rendered in Bimla Devi Vs. Himachal Road Transport Corporation AIR 2009 SC 2819.

In the instant case, the evidence of P.W.2 coupled with contents of the charge sheet clearly show that the driver of the Tipper drove the vehicle in a rash and negligent manner at high speed and dashed the motor cycle of the deceased. The accident was occurred on 18.05.2007, the owner of the vehicle has surrendered the driver of the offending vehicle on 23.05.2007 and the police filed charge sheet on 30.05.2007. Hence, there is no dispute with regard to the involvement of the said offending vehicle in the accident as the police after due investigation found that the said driver of the Tipper was responsible for the accident.

In view of the aforesaid discussion, I hold that the appellants, by examining P.W.2 and marking Exs.A1 and A6, amply proved that it is the offending vehicle i.e., Tipper that has caused the accident resulting into the death of the deceased. Hence, the finding of the Tribunal that the Tipper was not involved in the accident, is set aside and it is held that the deceased died on account of rash and negligent driving of the driver of the Tipper.

Since the accident was occurred on 18.05.2007 and the claim-petition filed by the appellants relate to 2007, instead of relegating the parties to the Tribunal for awarding the appropriate compensation, which will again taken some considerable time, this Court deems it fit to determine the compensation basing on the evidence adduced before the Tribunal.

A perusal of the evidence available on record would show that the deceased was aged about 20 years at the time of the accident and was working as Contract Labourer and earning Rs.6,000/- per month but no evidence whatsoever was produced to show that the deceased was earning Rs.6,000/- per month. In Latha Wadhwa vs. State of Bihar (2001) 8 SCC 197 the Apex Court held that even there is no proof of income and earnings, the income can be reasonably estimated. Since the deceased was aged about

20 years and he was able bodied person, this Court inclined to take the income of the deceased at Rs.3,000/- per month. Apart from the same, the claimants are also entitled to addition of 40% towards future prospects, as per the decision of the Hon’ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others 2017 ACJ 2700. Therefore, monthly income of the deceased comes to Rs.4,200/- (Rs.3,000/- + Rs.1200/-). From this, 50% is to be deducted towards personal and living expenses as the deceased was a bachelor. After deducting 50% amount towards his personal and living expenses, the contribution of the deceased to the family would be Rs.2,100/- per month. Since the age of the deceased was 20 years at the time of the accident, the appropriate multiplier is ‘18’. Adopting multiplier ‘18’, the total loss of dependency would be Rs.2,100/- x 12 x 18 = Rs.4,53,600/-. The claimants are also entitled to Rs.33,000/- under the conventional heads as per Pranay Sethi’s case (supra). Thus, in all the claimants are entitled to Rs.4,86,600/- rounded of to Rs.4,87,000/-.

At this stage, the learned Counsel for the Insurance company submits that the claimants claimed only a sum of Rs.4,00,000/- as compensation and the quantum of compensation which is now awarded would go beyond the claim made which is impermissible under law.

Insofar as the liability is concerned, learned Standing Counsel for the Insurance Company is that though the vehicle involved in the accident, the driver of the Tipper as well as the rider of the motor cycle on which the deceased was proceeding were not having valid driving licence at the time of the accident, as such the insurance company is not liable to pay the compensation as the owner of the Tipper has violated the terms and conditions of the policy. In this regard, it is to be seen from the record that though the Insurance Company has taken the said plea before the Tribunal, but neither produced the driving licence nor examined the driver of the Tipper to establish the fact that the driver of the Tipper was not having valid driving licence at the time of the accident. There is no force in the contention of the learned Standing Counsel Since the accident occurred due to the negligence of the driver of the Tipper and in the absence of any evidence to prove that the driver of the Tipper was not having valid driving licence at the time of the accident. Since Ex.B4 policy was in force as on the date of accident covering the risk of the third parties and the deceased comes under the category of third party, both the respondents being owner and insurer of the offending vehicle, Tipper are jointly and severally liable to pay the aforesaid compensation.

In Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another (2011) 10 SCC 756, the Apex Court while referring to Nagappa Vs. Gurudayal Singh 2003 ACJ 12 (SC) held as under:

“It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident.”

In view of the Judgments of the Apex Court referred to above, the appellants/claimants are entitled to get more amount than what has been claimed. Further, the Motor Vehicles Act being a beneficial piece of legislation, where the interest of the appellants/claimants is a paramount consideration the Courts should always endeavour to extend the benefit to the appellants/claimants to a just and reasonable extent.

In the result, the appeal is allowed setting aside the order and decree, dated 03.05.2010 passed in O.P.No.664 of 2007 on the file of the Chairman, Motor Accident Claims Tribunal-cum-Principal District Judge, Medak at Sangareddy. The appellants/ claimants are awarded compensation of Rs.4,87,000/- with interest @ 7.5% per annum from the date of petition till the date of realisation. Both the respondents are jointly and severally liable to pay the said amount and they are directed to deposit the said amount within two months from the date of receipt of a copy of this judgment. The entire compensation amount shall be apportioned to the appellants equally. On such deposit, all the claimants are permitted to withdraw their share amount without furnishing any security. However, the claimants are directed to pay Deficit Court Fee on the enhanced amount. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.