The Divisional Manager, United India Insurance Co. Ltd vs Jerripothula Ganga Devi & Ors.

On 12.08.2016, while the deceased proceeding on his motorcycle bearing No. AP02 F 1506 from his village towards Dharmavaram, and upon reaching near the Municipal Office, Dharmavaram, the driver of the APSRTC bus bearing No. AP02 TC 6177 drove the bus rashly and negligently and hit the motorcycle from its behind and as a result, he died on the spot. A case in Crime No.268 of 2016 was registered for the offence under Section 304-A IPC.

As on the date of the accident, the deceased aged about 47 years, hale and healthy, and was engaged in the milk business and cultivation. He was earning Rs.40,000/- per month from the milk business and Rs.1,00,000/- per annum from agriculture. On account of his sudden demise, the petitioners lost financial support, love and affection.

Respondent Nos.1 to 4 are owner, insurer, driver and hirer of the APSRTC bearing No.AP 02 TC 6177 and as such, they are jointly and severally liable to pay compensation.

Whether the accident dated 12.08.2016 occurred due to the rash and negligent driving of the driver of the APSRTC bus bearing No. AP02 TC 6177?

Whether the petitioners are entitled to compensation? If so, what is the just and reasonable amount, and which of the respondents are liable to pay it?

Whether the judgment and decree dated 15.10.2018 passed by the Tribunal are sustainable in law and on facts?

During trial, petitioner No.1 filed her examination-in-chief affidavit in lieu of her chief examination by reiterating the averments mentioned in the petition, and the petitioners relied upon the evidence of PW-2, coupled with Exs.A1 to A5. As can be seen from the record, PW-1, who is wife of the deceased, is not an eyewitness to the accident, and the only available evidence to prove the manner and method of accident is that of PW-2. He testified that while the deceased going on his motorcycle, respondent No.3, driver of the APSRTC bus, drove the same in a rash and negligent manner and dashed against the motorcycle of the deceased from its behind and as a result of which, he died on the spot. Nothing useful material is elicited in the cross-examination of PW-2.

Further, a case in Crime No.268 of 2016 is registered for the offence under Section 304-A IPC and after completion of investigation, the police laid Ex.A5-charge sheet, alleging that the accident occurred due to rash and negligent driving of respondent No.3. Having argued that the accident occurred due to the rash and negligent driving of the deceased and that there was no negligence on the part of respondent No.3, neither respondent No.2 nor respondent No.4 adduced any evidence. Moreover, respondent No.3, who is the best person to speak about the manner of the accident, was also not examined, and such non-examination is fatal to the case of the respondents. The unchallenged eyewitness account, considered together with the contemporaneous police and medical records, establishes on a preponderance of probabilities that the accident occurred due to the rash and negligent driving of the APSRTC bus by respondent No.3, Jerripothula Venkata Ramudu sustained injuries in the accident and succumbed to the said injuries. Accordingly, Point No.1 is answered in favour of the petitioners.

The petitioners asserted that the deceased, aged about 47 years, was engaged in the milk business and was earning Rs.40,000/- per month, he was also cultivating land and was earning Rs.1,00,000/- per annum, as on the date of accident. They claimed that his death deprived them of financial support and companionship. The age of the deceased is recorded as 47 years, in Ex.A2/inquest report, and Ex.A3/post-mortem report. In the absence of contrary evidence, the tribunal was justified in accepting his age as 47 years on the date of the accident.

b). Learned counsel for respondent No.2 contended that petitioner Nos.2 to 4, being major and married children of the deceased and petitioner No.1, were not entitled to compensation. In this regard, it is to be noted that in Manjuri Bera v. Oriental Insurance Company^{11.2007 ACJ 1279 SC}, the Hon’ble Supreme Court explained that the right of a legal representative to maintain a claim is distinct from the entitlement to loss of dependency, and that compensation may form part of the estate of the deceased. The principle applies to the legal representatives of the deceased, even if they are majors or earning members. The same principle is followed in Bajaj General Insurance Company Limited and another v. Bipasa Rai and others ^{22.2022 ACJ 1406} , and Balvender Singh v. Vijay Kumar and others ^{33.2022 ACJ 1140} . Therefore, petitioner Nos.2 to 4, being legal representatives of the deceased, are not disentitled from maintaining the claim merely because they are majors or married. So, all the petitioners are entitled for compensation.

c). As regards the income of the deceased, although the petitioners claimed earnings of Rs.40,000/- per month from the milk business and Rs.1,00,000/- per annum from agriculture, they did not adduce oral or documentary evidence substantiating those amounts. In the absence of supporting evidence, the claimed income cannot be accepted. Having regard to the facts and circumstances, including the year of the accident (2016), the Tribunal assessed the deceased’s monthly income at Rs.7,500/-. In the absence of any material warranting a different assessment, the said determination cannot be said to be unreasonable.

d). Learned counsel for the respondent/ Insurance Company contended that one-fourth of the income ought not to have been deducted towards personal and living expenses because petitioner Nos.2 to 4 were majors and residing separately. The appropriate deduction, however, is determined with reference to the number of dependants and the applicable principles governing computation of loss of dependency, rather than the mere fact that some legal representatives are majors. On the record and grounds as presented, no sufficient material has been shown to demonstrate that the Tribunal’s computation requires interference. Accordingly, no ground is made out to interfere with the compensation of Rs.9,32,500/- awarded by the Tribunal.

e). On the question of liability, this Court has already gave finding that respondent No.3, the driver of the bus bearing No. AP02 TC 6177, was responsible for the accident. The petitioners pleaded that respondent No.1 was the owner, respondent No.2 the insurer, respondent No.3 the driver and respondent No.4 the hirer of the bus, and sought to hold them jointly and severally liable.

f). Learned counsel for respondent No.2 contended that respondent No.2 was not the owner of the bus and that respondent No.3 was employed as the driver of respondent No.4 and as such, they are not liable to pay compensation. It is apposite to mention here that T. Ramakrishna v. Valluri Babu Rao and others^{44.2017 (1) ALD 453} where the vehicle had been hired to APSRTC, the Hon’ble High Court considered the liability of the owner, APSRTC and the insurer. In the circumstances of that case, joint liability was fastened on the owner and APSRTC, and the insurer was directed to satisfy the award in the absence of a policy violation. The decision also considered the definition of “owner” under Section 2(30) of the Motor Vehicles Act, 1988, in relation to APSRTC.

g). Further, in Managing Director, Karnataka State Road Transport Corporation v. New India Assurance Co. Ltd. and Anr^{55.2016 (2) SCC 382}, the Hon’ble Supreme Court considered the scope of Sections 2(19) and 2(30) of the Motor Vehicles Act, 1988, and held that KSRTC could be treated as an owner for the purposes of Section 2(30). The decision considered buses operated under lease or hire-purchase arrangements. Applying the principles of the above decisions to the facts of the present case, the contention that the hirer alone or the insurer alone should bear the liability cannot be accepted. It is not in dispute that the insurance policy of the offending vehicle was in force on the date of the accident, and no established policy breach has been demonstrated on the evidence placed before the Court. The tribunal’s fastening of liability jointly and severally on respondent Nos.1 to 4, therefore, does not warrant interference. Hence, this point is answered accordingly.