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Judgment
Assailing the order and decree dated 01.12.2016 passed in M.V.O.P.No.807 of 2009 by the Motor Vehicles Accident Claims Tribunal-cum-XIII Additional District Judge, Vijayawada, the respondent No.2/APSRTC has preferred the instant appeal for granting compensation of Rs.7,21,460/-with interest at 7.5% per annum.
The parties are being referred to as ‘petitioners’ and ‘respondents’ as arrayed in the petition before the Tribunal, for the sake of convenience and clarity.
Case of the petitioners is thus: On 20.05.2009 at about 09.30 A.M, while the deceased D.Prabhakara Prasad going to Vijayawada on his motor cycle bearing No.AP 16 BE 851 towards Vuyyuru and when he reached Eedupugallu, BC Colony at about 9.00 a.m. respondent No.1 drove the RTC bus bearing No.AP 11 Z 2812 in a rash and negligent manner and dashed against the motor cycle of deceased and as a result of which, he sustained multiple grievous injuries. Immediately after the incident, he was shifted to Government General Hospital, Vijayawada and doctor declared brought dead. Upon receipt of information, a case in crime No.116 of 2009 is registered of the offence under Section 304-A of the Indian Penal Code (hereinafter referred to as ‘the Code’) against the driver of the offending vehicle/respondent No.1. The deceased hale and healthy, aged about 30 years and working as VRO of Tadanki Village of Pamidimukkala Mandal and was earning salary of Rs.6,000/- per month. Petitioners are wife and mother of the deceased. Due to the sudden demise of deceased, they lost financial support and love and affection. Respondent No.1 is driver, respondent No.2 is owner of APSRTC bus bearing No.AP 11 Z 2812 and as such they are jointly and severally liable to pay compensation.
Having received notice, respondent No.1 remained ex parte.
Respondent No.2 filed counter contending that there was no negligence on the part of respondent No.1, and the accident occurred due to the rash and negligent riding of the deceased and as such, respondent No.2 is liable to pay compensation and with other formal denials prayed to dismiss the petition.
Taking into consideration of aforementioned pleadings, the learned Tribunal settled the following issues:
1)Whether the accident occurred due to rash and negligent driving of the driver of APSRTC bus bearing No.AP 11 Z 2812 on 21.05.2009.
2)Whether the petitioners are entitled to the compensation? If so, from whom and to what amount?
3)Whether the petitioners are entitled for the compensation against all the respondents?
4)To what relief?
During trial, petitioner No.1 examined herself as PW.1 and the petitioners have got examined PW.2 and filed Exs.A1 to A5, Ex.X1 and X2 documents. As against the said evidence, respondent No.2 has not adduced either oral or documentary evidence. At the culmination of trial, learned Tribunal allowed the petition in part awarding compensation of Rs.7,21,460/-with interest at 7.5% per annum.
Feeling aggrieved by the said judgment and decree, respondent No.2 preferred the instant appeal urging with the following grounds:
The order and decree of the learned tribunal is erroneous, contrary to law and weight of evidence and probabilities of the case.
ii) The learned tribunal erred in awarding compensation of Rs.7,21,460/ with interest at 7.5% per annum.
iii) The learned Tribunal erred in holding that the accident occurred due to rash and negligent driving of respondent No.1.
iv) The learned Tribunal committed serious irregularities in granting compensation, without there being any proper evidence.
The learned Tribunal considered the income of the deceased and granted compensation of Rs.7,21,460/-, and with other formal grounds, prayed to allow the appeal.
Heard Sri N.S.Roopesh, learned counsel representing Sri P.Venkata Rao, learned Standing counsel for APSRTC and learned counsel for respondents/ claimants. Having received notice, respondents/ claimants remained exparte.
On hearing both sides and upon perusing the material available on record, that points that would arise for consideration are:
Whether the accident dated 20.05.2009 occurred due to the rash and negligent driving of the driver of APSRTC bearing No.AP 11Z 2812?
Whether the petitioners are entitled for compensation? If so, to what amount?
Whether the order and decree dated 01.12.2016 passed by the learned Tribunal are sustainable in law and facts?
To what relief?
Being the first appellate court and final fact finding court, this court has to re-examine and re-appreciate the entire oral as well as documentary evidence on record.
Point No.1:
As seen from the record, there is absolutely no dispute regarding the factum of accident. In order to prove the manner and method of accident, petitioners relied upon the evidence of PW No.1, who testified that on 20.05.2009, her husband went out on his motor cycle bearing No.AP 16 BE 851 and she came to know that the driver of APSRTC bus drove the same in a rash and negligent manner, dashed against her husband’s motor cycle and as such, he sustained injuries and died. Without denying the factum of accident, it is suggested to PW.1 that the accident occurred due to the negligence of the deceased and the same is denied by her. Admittedly, she is not eye witness to the accident. Petitioners have not examined any eye witness to prove the manner and method of accident. However, respondents have not denied the factum of accident, but they only contended that the accident occurred due to rash and negligent riding of the deceased. In this aspect, it is to be noted that basing on the report of the defacto complainant, a case in crime No.116 of 2009 is registered of the offence under Section 304 (A) of the Code against the respondent No.1. Having received summons, respondent No.1 driver of APSRTC remained absent. Respondent No.1 who is best person to speak about the manner and method of accident is not examined and his non examination is fatal to the case of the respondents.
It is evident from the record that Ex.A1 coupled with evidence of PW.1 clinchingly proves that the accident occurred due to the rash and negligent driving of APRTC bus. No rebuttal evidence is adduced by the respondent No.2 on this aspect. So, in the absence of any rebuttal evidence, the evidence of PW.1 coupled with Ex.A1 clinchingly proves that the accident occurred due to the rash and negligent driving of the respondent No.1. As seen from the Ex.A2/ enquest report and Ex.A3/Postmortem report, D.Prabhakara Prasad sustained injuries in the accident and succumbed to the said injuries.
As per the material brought on to the record, this Court came to conclusion that the accident occurred due to the rash and negligent driving of driver of APSRTC bus bearing No.AP 11 Z 2812 i.e., respondent No.1, D.Prabhakara Prasad sustained injuries and succumbed to the said injuries. Accordingly, this point No.1 is accordingly answered in favour of the petitioners and against the respondents.
Point No.2:
As per the version of the petitioners, as on the date of the accident, deceased aged about is 30 years, he was hale and healthy, working as VRO was and drawing Rs.6,000/- per month. As seen from Ex.A2/Inquest report and Ex.A3/Post Mortem report, age of the deceased is mentioned as 30 years. There is no contra evidence to that effect. So, it can safely be held that the age of the deceased was 30 years old, as on the date of accident. Petitioners, who are wife and mother of the deceased are entitled to the compensation.
So fas as income of the deceased is concerned, petitioners have got examined PW.2 and he testified that the deceased appointed as panchayat secretary on contract basis and since 1995, he was working as panchayat secretary and was drawing salary of Rs.5,082/- per month towards consolidated payment and he produced Ex.X1/ service register and Ex.X2/ salary certificate. Nothing useful material is elicited in the cross examination of PW.2. There is no reason to disbelieve the version of PW.1, who is working as MPDO, Pamidimukkala and who had control over the deceased. Therefore, the learned Tribunal had rightly taken the said amount of Rs.5,047/- towards salary of the deceased and having applied the principles laid down by the Hon’ble Apex Court, has awarded compensation of Rs.7,21,460/-.
For 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 Prabhakar Prasad, his occupation and income, and the consequent entitlement to compensation are supported by the evidence on record.
So far as the liability of the respondents is concerned, a finding is already recorded in point No.1 that the accident occurred due to rash and negligent driving of respondent No.1. So, respondent No.2/ APSRTC being owner vicariously liable for the acts committed by the respondent No.1 and as such, respondent Nos.1 and 2 are jointly and severally liable to pay compensation. Hence, this point is answered in favour of the petitioners and against the respondents.
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 are perfectly sustainable in facts and law. 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 in point Nos.1 to 3, this Motor Accident Civil Miscellaneous Appeal is dismissed, confirming the order and decree dated 01.12.2016 passed in M.V.O.P.No.807 of 2009 by the Motor Accident Claims Tribunal-cum-XIII Additional District Judge, Vijayawada. As a sequel thereto, pending miscellaneous petitions, if any, shall stand closed.