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Judgment
Assailing the judgment and decree dated 15.07.2011 in M.V.O.P.No.208 of 2008 passed by the Motor Accidents Claims Tribunal-cum-II Additional District Judge, East Godavari at Amalapuram, respondent No.2/APSRTC preferred the instant appeal for granting compensation of Rs.4,06,000/- for the untimely death of Sri Mortha Veera Venkata Satyanarayana.
Parties are being referred to as per their positions before the Tribunal, for the sake of convenience and clarity.
The case of the petitioners in brief is thus:
On 05.02.2007 while the deceased and some other passengers were travelling in an auto bearing No.AP 5V 7708 and when the auto reached near the house of Kalidindi Lakshminarayanraju, Komaragiri Village at about 01.30 P.M., an APSRTC bus bearing No.AP11 Z 5364 came in a rash and negligent manner and dashed the auto. As a result, Mortha Veera Venkata Satyanarayana died on the spot and other passengers sustained grievous injuries. The accident occurred due to the rash and negligent driving of respondent No.1/driver of APSRTC bus, and a case in Crime No.9 of 2007 was registered for the offence under Sections 304-A and 338 of IPC. As on the date of the accident, the deceased aged 35 years, hale and healthy, doing coolie work and earning Rs.3,000/- per month. Respondent No.1 is the driver of the bus, Respondent No.2 is the owner of the bus, Respondent No.3 is the owner of auto and Respondent No.4 is the insurer of the auto. Therefore, all the respondents are jointly and severally liable to pay compensation.
Having received notices, respondent Nos.1 and 3 remained ex parte.
Respondent Nos.2 and 4 filed counters separately, refuting the averments made in the petition, wherein, inter alia contended that there was no negligence on the part of respondent No.1, more than permitted number of passengers were travelling in the auto bearing No.AP 5V 7708, respondent No.2 had violated the terms and conditions of the policy, there was no negligence on the part of respondent No.1, petitioners claimed excessive compensation, and with other formal denials, prayed to dismiss the petition.
During trial, petitioner No.1 examined herself as PW1, and the petitioners examined the eyewitness as PW2, and filed Exs.A1 to A5 documents. As against the said evidence, respondent Nos.2 and 4 examined RWs 1 to 3 and filed Exs.B1 to B3 and X1 to X3 documents. At the culmination of the trial, the learned Tribunal allowed the petition in part awarding compensation of Rs.4,06,000/- with interest @ 7.5% from the date of petition, i.e., 30.12.2008, till the date of deposit, fixing liability on respondent Nos.1 and 2.
Feeling aggrieved by the said decree and judgment, respondent No.2/APSRTC preferred the instant appeal, urging the following grounds:
The judgment and decree of the Tribunal is contrary to law, weight of evidence and probabilities of the case.
ii) The learned Tribunal failed to exercise its jurisdiction and failed to appreciate the evidence on record.
iii) The learned Tribunal wrongly fixed liability upon respondent No.2.
iv) The learned Tribunal failed to consider that at the time of accident, more than the permitted passengers were travelling in the auto.
The learned Tribunal below failed to consider that the accident occurred due to rash and negligent driving of the driver of the auto and that he had no driving license at the time of the accident, and, with other formal grounds, prayed to allow the appeal.
Heard learned counsel for the appellants and the learned counsel for the respondents/claimants.
On hearing both sides and upon perusing the material available on record, including the impugned judgment and decree dated 15.07.2011, the points that would arise for consideration are as follows:
Whether the accident occurred due to the rash and negligent driving of respondent No.1 or driver of auto bearing No.AP 5V 7708 or due to the contributory negligence of both the driers?
Whether the petitioners are entitled to compensation? If so, to what amount, and from which of the respondents?
Whether the decree and judgment dated 15.07.2011 passed by the learned II Additional District Judge, East Godavari at Amalapuram, are sustainable in law and on facts?
To what relief?
Being the first appellate Court and the final fact-finding Court, this Court has to re-examine and re-appreciate the entire oral and documentary evidence on record.
Point No.1:
During the trial, petitioner No.1 filed her examination-in-chief affidavit in lieu of her chief examination, reiterating the averments mentioned in the petition, and the petitioners relied upon the evidence of PW2 coupled with Exs.A1 to A5 documents.
As seen from the record, PW1/wife of the deceased is not eyewitness to the accident and the only available evidence to prove the manner and method of accident is that of PW2 and RW-1/driver of the APSRTC bus. PW2 testified that on 05.02.2007 while himself, the deceased and other passengers were travelling in the auto bearing No.AP 5V 7708 so as to go to Yanam and when the auto reached the house at K.Lakshminayanaraju, the RTC bus bearing No.AP11 Z 5364 came in a rash and negligent manner and dashed against the auto and as a result of which, the auto crushed, except himself and one Kannidi Veera Venkata Nageswara Rao, all other passengers, including the driver died on the spot. In his cross examination, nothing useful material is elicited. The driver of offending vehicle i.e., RW-1 stated that there was no negligence on his part and that when the bus reached near a curve, having noticed the auto, he slow down the speed, the auto which was coming in the opposite direction with overloaded passengers, came in a rash and negligent manner, driver of the auto lost control and dashed against the bus. In the cross examination, he has categorically admitted that a case in Crime No.9 of 2007 was registered of the offence under Section 304-A and 338 of IPC and after completion of investigation, police laid charge sheet of the said offences.
Although respondent No.2 contended that the accident occurred solely due to the rash and negligent driving of the auto driver, no independent material was produced to substantiate that plea. On the other hand, Exs.A1 and A5 support the petitioners’ case regarding the negligence of respondent No.1. The auto driver also died in the accident and the investigating agency did not attribute any contributory negligence to him. On an overall appreciation of the eyewitness account of PW2, the evidence of RW1 and the documentary evidence, this Court finds that the petitioners have established, on a preponderance of probabilities, that the accident occurred due to the rash and negligent driving of respondent No.1. The mere allegation that the auto was carrying excess passengers, without proof that such overloading contributed to the accident, does not displace this conclusion.
Ex.A4, the Motor Vehicle Inspector’s report, shows that the accident was not caused by any mechanical defect in the APSRTC bus bearing registration No.AP11 Z 5364. Ex.A2, the inquest report, and Ex.A3, the post-mortem report, establish that the deceased sustained injuries in the accident and died as a result thereof. Accordingly, Point No.1 is answered in favour of the petitioners, holding that the accident occurred due to the rash and negligent driving of respondent No.1 and that the deceased died from the injuries sustained in the accident.
Point No.2:
According to the petitioners, the deceased aged about 35 years, was working as a coolie and was earning Rs.3,000/- per month. They also stated that he was hale and healthy and that they had lost his financial support, love and affection. To establish his age, the petitioners relied on Exs.A2 and A3. The age of the deceased is recorded as 30 years in the crime records and no contra evidence is adduced. Having regard to the available record, the Tribunal’s assessment of the deceased’s age and the resulting computation are considered in the context of the evidence on record. The petitioners, being the wife, children and parents of the deceased, are entitled to compensation for the loss occasioned by his death.
Having regard to the nature of the deceased’s occupation and the circumstances of the case, the learned Tribunal assessed his monthly income at Rs.3,000/-. Applying the relevant principles governing computation of compensation, including the applicable multiplier, the Tribunal awarded Rs.4,06,000/- with interest at 7.5% per annum from the date of the petition till the date of deposit and fastened joint and several liability on respondent Nos.1 and 2. The appellant has not demonstrated any specific error in the Tribunal’s assessment or computation.
Insofar as liability of the respondents is concerned, a finding is already given in point No.1 that the accident occurred due to the sole negligence of the respondent No.1. Respondent No.2 is responsible for the acts committed by the respondent No.1 and as such, both the respondents are jointly and severally liable to pay compensation. Hence, this point is answered accordingly.
Point No.3:
On a careful re-appreciation of the entire evidence and having regard to the foregoing discussion, this Court is of the considered view that the findings recorded by the learned Tribunal regarding the manner of the accident, negligence of driver of APSRTC bus, the death of Mortha Veera Venkata Satyanarayana, his occupation and income, and the consequent entitlement to compensation are supported by the evidence on record. The respondents have failed to establish any legal or factual infirmity warranting interference with the impugned order. Hence, this point is answered in favour of the petitioners/claimants and against the respondents.
In the result, and in view of the findings recorded on Point Nos.1 to 3, the Motor Accident Civil Miscellaneous Appeal is dismissed, confirming the judgment and decree dated 15.07.2011 passed in M.V.O.P. No.208 of 2008 by the Motor Accidents Claims Tribunal-cum-II Additional District Judge, East Godavari at Amalapuram. There shall be no order as to costs.
As a sequel thereto, pending miscellaneous petitions, if any, shall stand closed.