MACMA/84/2005 of K. Subbayyamma Vs D. Deva Reddy on 31 December 2014

JUDGMENT:

This appeal is preferred by the petitioners seeking compensation having gotdissatisfied with the dismissal order, dated 19.10.2004, in MVOP No.503 of 2003 onthe file of Chairman, Motor Vehicles Accidents Claims Tribunal–cum–PrincipalDistrict Judge, Kurnool.

2. The appellants herein are the petitioners in the O.P. before the Tribunal,while respondent Nos.1 and 2, who are owner and insurer of the Tractor and Trailerbearing No.AP-21-V-0062 and 0063 that involved in the accident, are respondentNos.1 and 2, respectively.

3. For the sake of convenience, the parties herein are hereinafter referred toas they are arrayed in the O.P. before the Tribunal.

4. The facts, in brief, are that one Seetharama Raju was doing milk businessearning Rs.5,000/- per month and was aged 55 years. On 28.04.2000, when he wasstanding at his village Raja Nagar with milk cans to go to Adoni, a tractor and trailerbearing registration No.AP-21-V-0062 and 0063, respectively, driven at high speedand in a rash and negligent manner coming from Adoni has hit him, due to which, hefell down, resulting his instantaneous death. Hence, the petitioners soughtcompensation of Rs.2,00,000/-, against respondent Nos.1 and 2, who are the ownerand insurer of the tractor and trailor, respectively, that involved in the accident.

5. Before the Tribunal, respondent No.1 remained ex parte.

6. Respondent No.2 filed counter requiring the petitioners to prove thematerial allegations made in the petition, and resisting the claim on the ground thatthe petition is bad for non-joinder of the driver of the vehicle, sought to dismiss theclaim. Respondent No.2 filed a petition under Section 170 of the Motor Vehicles Act,1988 (for short, “the Act”), which, of course, was filed subsequently, and the samewas allowed by the Tribunal.

7. In the direction of accounting the responsibility for the accident, theTribunal framed three issues. During enquiry, petitioner No.3 examined himself asPW.1 and also examined K.Narasappa as PW.2 and marked Exs.A-1 to A-6. Onbehalf of the contesting respondents, one B.Venkata Rao was examined as RW.1and Exs.B-1 to B-3 were marked.

8. The Tribunal, on issue No.1, on appraisal of evidence led by the petitionersand respondent No.2, observing that PW.1, who was examined as a witness in thecriminal case against the driver of the vehicle, in question, has turned hostile, butnow he has turned around and gave contra evidence in the O.P., and that he cannotbe allowed to blow hot and cold, at the same time recorded a finding that thepetitioners failed to prove the accident and held that the involvement of the vehicle,in question, was highly doubtful.

9. The Tribunal, on issue No.2, after taking into consideration the notionalincome of the deceased at Rs.15,000/- per annum as per Second Schedule ofSection 163A of the Act, on the premise that the petitioners failed to prove the definite income of thedeceased, deducted 1/3[rd] therefrom and arrived at Rs.10,000/- as loss ofdependency and taking the age of the deceased as 55 years and by applyingmultiplier ‘11’, as provided in the Second Schedule to Section 163A of the Act,arrived at Rs.55,000/- towards future loss of contribution to the family, which in factappears to be wholly incorrect. Since the remainder is to be construed asRs.10,000/- per annum and when multiplied by applying ‘11’, it works out toRs.1,10,000/-. The Tribunal of course granted Rs.15,000/- towards loss ofconsortium, Rs.15,000/- towards loss of estate, Rs.2,500/- towards funeral expenses and Rs.500/- for transporting the dead body to their house and thus, arrived atRs.88,000/-, which ought to be Rs.1,43,000/-. However, in view of the findingrecorded by the Tribunal on issue No.1, dismissed the claim with costs.

10. Aggrieved by the said order, the instant appeal is preferred contendingthat the Tribunal did not properly appreciate the evidence let in by the petitioners. Itis also stated that the Tribunal was wrong in believing Ex.B-1-copy of judgment inC.C.No.660 of 2000, and Ex.B-2-copy of the deposition of PW.5, since in criminalcases the prosecution has to prove the guilt of the accused beyond reasonabledoubt, which is not so in a civil case. It is also stated that the Tribunal ought to haveprobed into whether there has been compliance of provisions of Section 476(7) ofA.P.Motor Vehicle Rules, 1989, in awarding compensation, which provisionmandates the eligibility to claim compensation by the legal representatives of thedeceased.

It is still further contended that the Tribunal had rightly observed that the contents ofEx.A-1 support the evidence of PW.1 and the contents of Exs.A-2 to A-4 support thecontents of Ex.A-5, but failed to award the compensation merely on the ground that the evidenceadduced in the criminal case is not supporting the claim of the petitioners. Thepetitioners, therefore, sought to grant the compensation claimed by them.

11. Heard Sri K. Janaki Rami Reddy, learned counsel for the petitioners(appellants), and Sri P. Srinivasa Rao, learned counsel for respondent No.2(Insurance Company). None appears for respondent No.1, who is the owner of theTractor and Trailor, despite service of notice.

12. Learned counsel for the appellants placed reliance on the decision of thisCourt in APSRTC and another v. Sravaji Aruna and others for the proposition thatthe judgment of the criminal court is not conclusive and it is open for the claimants toadduce evidence to make out the finding that the accident has occurred as a resultof rash and negligent driving of the driver of the vehicle that involved in the accident.In the same context, learned counsel has also placed reliance on the decision of thisCourt in G.Jaya Lakshmi and others v. Syed Anwar Hussain Quadri and others. Learnedcounsel also placed reliance on a later decision in Laxmi Gontiya and another v.Nand Lal Tahalramani and others tendered by a Division Bench of High Court ofMadhya Pradesh at Jabalpur for the proposition that the evidence and the findingrecorded in a criminal case are inadmissible in a civil case. It is, thus, contended bythe learned counsel for appellants that the Tribunal deviated in appreciating theevidence on record and placed reliance on the evidence of PW.5 in CC No.660 of2000 to defeat the claim of the petitioners, which is not in accordance with theevidentary rule and, thus, sought to set aside the order and to grant thecompensation claimed by the petitioners.

13. Learned counsel for respondent No.2-Insurance Company submits thatthe Tribunal did not commit any error in taking into consideration the evidence ofPW.5 in the criminal case and the Tribunal has rightly held that the petitioners werenot entitled to compensation. He further submits that there has been violation ofconditions of policy, as the Tractor and Trailor were used for the purpose other thanthe one for which the policy was issued and, therefore, seeks to dismiss the appealby confirming the order of the Tribunal.

14. At the outset, it is to be observed whether the Tribunal did really wentwrong in appreciating the legal aspect. Ex.B-2 is the deposition of PW.5 in CCNo.660 of 2000 on the file of Judicial Magistrate of First Class, Adoni. The Tribunal,in paragraph No.12 of the order under challenge referred to the evidence of PW.4 bymentioning that PW.4, who is stated to be the owner of the Tractor, deposed that oneHanumantha Reddy was the driver of the said vehicle and was treated hostile. TheTribunal also referred to the evidence of PWs.1 to 3 and PW.5 and made a commentthat they turned hostile. Therefore, the Tribunal observing that PW.1 cannot beallowed to blow hot and cold at the same time gave finding on issue No.1 againstthe petitioners stating that involvement of the vehicle is highly doubtful. Thatapproach of the Tribunal is absolutely incorrect in view of the well settled legalproposition that the evidence recorded in a criminal case cannot be made use of andso far as admissibility of the judgment in a criminal case is concerned, only the resultis relevant, but not the discussion or the evidence recorded therein.

15. Adverting to the decision of this court in APSRTC and another’s Case(Supra 1) relied on by the learned counsel for the appellant, wherein it was held thatthe judgment of the criminal court is not binding and is not conclusive, it is not opento adduce evidence on the finding that the accident occurred as a result of rash andnegligent driving, in Laxmi Gontiya‘scase (Supra 3) similar was the propositionenunciated by the Division Bench of the High Court of Madhya Pradesh at Jabalpurin paragraph 11, which is thus:

“11. True, the accused was discharged but not on the ground that the identity of thevehicle involved in the accident is not established, but on the ground that from thestatements of the witnesses recorded during the investigation, under Section 161of the Code of Criminal Procedure, prima facie, rash or negligent act is notestablished. Even this order of discharge has no effect. It is well settled propositionof law that the evidence recorded in criminal case and finding recorded thereonshould not be used in claim cases. For the purpose of claim case, it isinadmissible.”

16. Even this Court in G.Jayalaxmi’s case (Supra 2) held that the evidence incriminal case is not binding on claims of the Tribunal for claiming compensation.Therefore, it is clear that the finding recorded by the Tribunal on issue No.1 is infirmwarranting interference by this Court and, therefore, the finding recorded by theTribunal on issue No.1 is set aside.

17. The next question that falls for consideration in this appeal is whether theamount of Rs.88,000/- arrived at by the Tribunal towards compensation alsowarrants interference.

18. As already mentioned above, the Tribunal having taken the notional incomeof the deceased at Rs.15,000/- per annum, deducted 1/3[rd] therefrom and eventhough it referred to the remaining amount as Rs.10,000/- and by virtue of secondschedule to Section 163-A of the Act, it has applied multiplier ‘11’, keeping in view,the age of the deceased, it has applied the multiplier to the deducted 1/3[rd] portion,instead of applying it to the remainder. At this juncture, it is not necessary to refer to

whether the evidence on record let in by the petitioners would prove that thedeceased was a milk vendor. A perusal of the investigation report marked as Ex.A-2would reflect against Column No.II in the description of the deceased, that theoccupation of the deceased as ‘milk vendor’. So, certainly, the case of the petitionersthat the deceased was a milk vendor cannot be doubted. In fact, FIR also reflectsthat the accident had taken place when the deceased was waiting with a milk can fortransport to Adoni. Petitioners claim that the deceased was earning Rs.5,000/- permonth, but except the assertion made by PW.1 therefor, no further evidence isforthcoming to establish concretely that the deceased was earning a definiteamount. In such an event, only basing on the evidence adduced, the earnings ofmilk vendor have to be arrived. Thus, it would be reasonable to hold that thedeceased must be earning Rs.2,000/- per month as milk vendor and per annum, itworks out to Rs.24,000/- and since the dependants are numbering ‘3’, who are thepetitioners herein, when 1/3[rd] is deducted from Rs.24,000/-, the remainder works outto Rs.16,000/-, towards contribution of the deceased to his family. Even as per thedecision of the Hon’ble Supreme Court in Sarla Verma v. Delhi TransportCorporation, the relevant multiplier is ‘11’ for the age group between 51 and 55.Therefore, when multiplier ‘11’ is applied, it works out to Rs.1,76,000/- towards lossof dependency. The Tribunal has granted an amount of Rs.15,000/- towards loss ofconsortium so far as petitioner No.1 is concerned, and Rs.15,000/- towards loss ofestate, which are not disturbed. So far as funeral expenses and funeral charges areconcerned, same is enhanced to Rs.5,000/- and Rs.2,000/- respectively. Thus,petitioners are totally entitled to Rs.2,13,000/-. No doubt, petitioners restricted theirclaim to Rs.2,00,000/-, but when the compensation arrived at exceeds the amountclaimed and when it is just and adequate, there cannot be any embargo to grant theamount arrived in view of the decision of the Hon’ble Apex Court in Sri Laxman @Laxman Mourya vs. Divisional Manager, Oritl. Ins. Company Ltd., and Anr.,.Therefore, the petitioners are entitled to the compensation of Rs.2,13,000/-, asagainst the order passed by the Tribunal, with interest at 7.5% per anum in view ofdecision of the Hon’ble Apex Court in Rajesh and others v. Rajbir Singh andothers.

stand closed. No order as to costs.

A. SHANKAR NARAYANA, J

December 31, 2014.

LMV

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