Thoparapu Laxmi Narsaiah vs Narsaiah

Dr. B. Siva Sankara Rao, J.—The claimants filed the appeal against the order/award in M.V.O.P. No. 712 of 2003 on the file of Motor Accidents Claims Tribunal-cum- District Judge, Nizamabad (for short, ''Tribunal'') dismissing the claim in the claim petition u/s 166 of the Motor Vehicle Act, 1988 (for short, ''the Act'').

Heard Sri P. Vidyasagar, the learned counsel for the appellants-claimants and none appeared on behalf of either of the respondents.

Perused the material on record.

The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

The grounds of appeal are that the award of the tribunal dismissing the claim is contrary to law, out come of improper appreciation of evidence and framing of a point for decision, grossly erred in holding that the accident was not the result of rash and negligent driving of the driver of the vehicle and for mechanical defect, hence to set aside the dismissal of the award and to allow the appeal by granting the compensation as prayed for before the tribunal.

The claimants, through the counsel, earlier submitted their arguments in part and taken time, but they did not submit further arguments. Hence taken no more arguments, but for to decide on merits.

The first respondent while appearing as claimant No. 1 through the counsel, in the capacity of owner of the vehicle even contested before the tribunal not chosen to appear in that capacity. It is also important to note that he cannot stand one way as respondent-owner and the other way one of the claimants. However, the fact remains mother is Class-I legal heir and dependent of the deceased and the first respondent-father is wrongly arrayed to maintain the claim.

It is the contention of the second respondent that the tribunal is right in dismissing the claim and for this Court while sitting in appeal there is nothing to interfere, further submitted that the deceased is not a coolie, much less hamali or workmen within the meaning of Workmen Compensation Act, 1923 (for short ''WC Act'') to claim any compensation being unauthorized passenger of the goods carriage, for which the policy not covered the risk by any additional premium and not covered any statutory liability u/s 147 of Motor Vehicles Act, 1988 (for short ''MV Act''). Hence to dismiss the appeal.

It is also contention that the claim u/s 166 of the M.V. Act is not maintainable, since the occurrence of the accident was due to mechanical defect.

Now the points for consideration are,

Whether the claim filed u/s 166 of the M.V. Act and the first respondent owner being the father of the deceased as first claimant cannot stand in that position and thereby the claim is not maintainable?

Whether the deceased is workmen within the meaning of Section 2(n) of WC Act or attracting the person u/s 12 of the WC Act and if so from the accident if at all not due to negligent driving of the driver of the goods carriage from any mechanical defect even the claim filed u/s 166 of MV Act instead of either u/s 167 of MV Act read with Section 166 of M.V. Act or u/s 163-A of MV Act cannot be considered from wrong quoting of the provision for its maintainability and if so the dismissal order of the Tribunal is liable to be set aside and if so with what observation, the compensation if any and what interest?

To what relief?

Point Nos. 1 & 2:

The fact that on 24.05.2003 at about 3.00 a.m. the deceased while traveling in the goods carriage of his father/first respondent/first claimant met with death not in dispute, he sustained multiple fractures also not in dispute. A perusal of Ex. A.2, P.M.E. report, dated 24.05.2003, speaks about the particulars of the injuries viz., right side of head crushed with frontal bone fracture, brain tissues seen, right eye crushed, right maxilla mandible and temporal bone fractured, left eye protruded, laceration of right hand dorsal with injury another laceration of lower 1/3rd of hand, muscle tendon seen, multiple punctured lacerated wounds on abdomen and lower part of chest, noticed fractured on right humorous laceration with fracture of shaft of femur right ankle, lower end of tibia and fibula fractured left tibia with multiple fractures, there is renal tear extracted up to scrotum and the opinion of the doctor is due to shock and hemorrhage and cardio respiratory arrest as a result of the multiple grievous and crush injuries. It is important to note from this P.M.E. report that the deceased was crushed under the wheels.

The contents of Ex. A.1 - F.I.R. speaks that on 23.05.2003 the deceased proceeded to Nizamabad market in the D.C.M. van along with mangoes load, at N.H. 16 near culvert No. 33/6, the van joint rod was broken, front portion of the mini van lost control and dashed against tree, as such the son of complainant, who was in the cabin of the van, died on the spot and another laborer - Yerranna sustained injuries. On information of the driver, he came there and shifted the injured persons to Government Hospital and hence to take action.

Undisputedly in the claim petition stated that the said D.C.M. van belongs to him. He cannot be a claimant, thereby his claim being a claimant is liable to be dismissed to stand as the respondent-owner of the vehicle. There remained two claimants, who are mother and major sister of the deceased. When parents are alive, the major sister of the deceased is not entitled for compensation. Thus, there remained a sole dependant, mother of the deceased, as she is class-I legal heir within the meaning of Legal Representative under the M.V. Act read with A.P. M.V. Rules. The claim made by her for the death of her son against her husband being the owner of the van and the insured nowhere be deviated by virtue of the relationship.

There is no bar for setting the law in motion and from the very report given by him, which was placed reliance upon by the claimants, that was relied by the insurer to the contention that the accident was the result of the mechanical defect and not because of any negligent driving of the driver. As the very report speaks that the joint rod was broken thereby he lost control and dashed a tree and the deceased was in the cabin along with another laborer, Yerranna. In the report he mentioned that the deceased was traveling with the mango load to claim as workmen.

In Ex. P.1 -F.I.R., he mentioned that the deceased was traveling with the mango load. To claim as workmen u/s 2(n) and Section 12 of the Act, the owner of the vehicle must show that the deceased was employed by him. It is not his version in Ex. P.1, F.I.R. It is the settled law that the F.I.R and the charge sheet themselves are not evidence without proof. However, when the claimant made contents of F.I.R. as part of claim petition filed F.I.R and charge sheet by placing reliance, there is nothing to prevent the insurer or owner as respondents to place reliance there on to appreciate as laid down by the Apex Court in its expression in National Insurance Company Ltd. Vs. Savitri Devi and Others etc., referring to National Insurance Co. Ltd. Vs. Rattani and Others, .

Having regard to the above, the deceased is the son of the first respondent, who is owner of the vehicle, is not mentioned as owner of mango load, but for simply said traveling that the deceased and one Yerranna traveling on the mango load and not even his case the mango load belongs to his son or he was the attendant on behalf of any other owner of the goods. The deceased was no other than the unauthorized passenger from the F.I.R. placed reliance by the claimants, which was given by first claimant, who is first respondent discussed supra. It is important to note from said F.I.R. that had the deceased was struck in the cabin itself due to joint rod broken and dashed a tree, the question of sustaining crush injury does not arise, but for fall from the cabin and ran over the vehicle under the wheels. It is to say, the movement an unauthorized passenger fell down, he ceases the status and becomes third party vide United India Insurance Company Limited Vs. Kurva Yejju Mallamma and Others, ; Kanwar Shamsher Singh and Others Vs. Satbir Singh and Others, , Oriental Insurance Co. Ltd. and Another Vs. Edward D''Cruz and Others, ; Thoznilalar Transport Company Vs. Valliammal and Others, & A. Subramani Vs. Mani and Others, .

Here the legal phrase, Res ipsa loquitur, which clearly applicable to the facts speaks from the P.M. report discussed supra and thus no more oral or documentary evidence is required to be adduced. There is no contra evidence from insurer. Even as Ex. P.2 - P.M.E. report discussed supra itself is sufficient to prove the contents of which not in dispute by the insurer and the Ex. A.1 is the charge sheet speaks accused, I. Ravi was charge sheeted u/s 304-A of I.P.C. by the police after investigation saying the accused himself surrendered and voluntarily confessed as he committed crime and thereby arrested and charge sheeted. From the said charge sheet, there is nothing in favour of the claimants that the accident was the result of rash and negligent driving of the driver and mere surrender of the driver allegedly confessed about the commission of crime itself is no ground to police to file charge sheet from the very F.I.R. speaks so also investigation, the joint rod of the van broken from which mechanical defect, the driver lost his control and dashed the right side tree. When such is the case, the deceased was not a workmen within the meaning of WC Act or attracting a person within the meaning of the WC Act, but unauthorized passenger as concluded supra and there is no rash and negligent driving of the driver of the vehicle, but for mechanical defect, accident resulted, the tribunal is somehow right in dismissing the claim u/s 166 of M.V. Act, but failed to consider in the factual scenario, from mere wrong quoting of the provision is no way fatal, but for duty of the Court to take the claim under correct provision as laid by catena of expressions in this regard, the Power of the tribunal to treat the claim instead u/s 166 of M.V. Act to Section 163-A of M.V. Act, as per the expression of Division Bench of this Court and Bhupathi Prameela and Others Vs. The Superintendent of Police and Others, .

As per the settled law, the claim though filed u/s 166 that was supposed to be filed u/s 163-A as wrong quoting of the provision taken for the correct provision that applies u/s 163-A as the vehicle is while in use the accident occurred, though there is no negligence of driver but for mechanical defect.

Having regard to the above, the moment of the deceased fell on the road from the goods carriage not continued as unauthorized passenger but being third party and even from any mechanical defect, the accident arisen, had he lost the grip while sitting in the vehicle either on the load or in the cabin; Ex. P.1 - F.I.R. speaks he was in the cabin and even but for jumped or fallen down could not be crushed under the wheels. It is to be kept in mind as laid down by the Apex Court in Bimla Devi and Others Vs. Himachal Road Transport Corporation and Others, , that strict proof of accidents not possible but for on preponderance of probabilities. If such is the case, it is Section 163-A of the Act and the structured formula of the second schedule of M.V. Act that is applicable to the claim. Here the insurer rightly contended as observed supra that the deceased was unauthorized passenger in the goods carriage being the son of the owner/insured. In fact it is important to note that though the deceased till he fall down from the vehicle, being unauthorised passenger as held by the Apex Court in Cholleti Bharatamma v. National Insurance Co. Ltd., 2004-ACJ-2094 by reiterating the proposition of National Insurance Co. Ltd. Vs. Bommithi Subbhayamma and Others, that are referred before the Tribunal for the conclusion, it requires to consider further facts, that after he fell down from the vehicle he was third party. It is undisputed thereafter the vehicle run over and he was crushed under the wheels he was succumbed. Then to that extent the insurer is liable to indemnify the owner (insured) to the claimant mother of the deceased. Here for allowing in the vehicle as passenger though from that he did not die, but from its fall later, the self negligence of deceased as well as driver is 25% each and after fall from liability of insured & insurer 50%. From the above, the deceased was aged about 20 years covered by multiplier 18; and even taken his earnings even as per the latest expression of the Apex Court in Kishan Gopal and Another Vs. Lala and Others, of Rs. 30,000/- per annum and if 1/3rd deducted towards personal expenses as per schedule of the Act (though otherwise for bachelor half in a claim u/s 166 of the Act) it comes to Rs. 20,000/- x 18 = Rs. 3,60,000/- and loss of estate and funeral expenses - Rs. 7,500/- which (comes to Rs. 3,67,500/-) is rounded to Rs. 3,68,000/- and 50% liability the respondents 1 and 2 comes to Rs. 1,84,000/- with interest at 7.5% p.a. from the date of filing the appeal till realization.

Accordingly, point Nos. 1 & 2 are answered.

Point No. 3:

In the result, the claim against claimants 1 and 3 is dismissed and the appeal is allowed in favour of the 2nd claimant/appellant by awarding compensation of Rs. 1,84,000/- (Rupees one lakh eighty four thousand only) with interest at the rate of 7.5% per annum from the date of filing of appeal till realization, directing the respondents 1 and 2, who are jointly and severally liable, to deposit the compensation within one month failing which the second claimant - mother of deceased is entitled to execute and recover. On such deposit or recovery, she is permitted to withdraw the same. No costs.

Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.