CMA/573/2005 of M/S INCABLE NET, Tirupati Pvt. Ltd., Vs S.C.V.Subramanyam Naidu on 28 December 2005

JUDGMENT:

The instant appeal is preferred by the petitioners having gotaggrieved by order and decree, dated 29-11-2004, in M.V.O.P.No.94 of 2003, passed by the learned Chairman, Motor AccidentsClaims Tribunal – cum – III Additional District Judge, Kurnool atNandyal (for short ‘the Tribunal’) on the ground that meagercompensation of Rs.2,71,200/-(Rupees two lakhs seventy onethousand and two hundred only) was granted as against the claimfor Rs.7,00,000/-(Rupees seven lakhs only) laid under Section166(c) of the Motor Vehicles Act, 1988 (for short ‘the Act’).

2. The appellants herein are petitioners in the O.P. beforethe Tribunal, while respondent Nos.1 and 2, who are owner andinsurer of bus bearing registration No.AP 04/T 9598, arerespondent Nos.1 and 2, respectively, and respondent No.3 –Andhra Pradesh State Road Transport Corporation (for short‘APSRTC’), which took the bus on hire, is respondent No.3.

3. For the sake of convenience, the parties are hereinafterreferred to as they were arrayed in the O.P. before the Tribunal.

4. Coming to the facts, on 20-10-2002 at 10.30 A.M., oneJ.C. Veeraiah, husband of the 1[st] petitioner and father of the 2[nd]and 3[rd] petitioners, along with his wife – petitioner No.1, wasproceeding to their house from a Cool Drink Shop at BommalaSatram and when they reached the place of accident, bus bearing registration No.AP 04/T 9598 belonging to the 1[st] respondent andhired by the 3[rd] respondent – APSRTC driven by its driver in arash and negligent manner came from behind and hit him, due towhich, J.C. Veeraiah sustained injuries. Immediately, he wasshifted to Government Hospital, Nandyal, where J.C. Veeraiah,who is hereinafter referred to as ‘deceased’ was declared dead bythe Medical Officer. The petitioners claimed that the deceasedwas 42 years old on the date of accident, working as Operator inM/s Espi Plastic Pipes Industries, Nandyal, drawing salary ofRs.5,100/- per month. In addition to the above, the deceased wasalso getting Rs.400/- to Rs.500/- per month by doing overtimework; Rs.400/- towards conveyance charges and Rs.1000/-towards accommodation charges and, therefore, sought to grantRs.7,00,000/-.

5. Respondent No.1, owner of the vehicle, remained exparte before the Tribunal.

6. Respondent No.2, insurer of the vehicle, filed counteropposing the claim, stating that the 3[rd] respondent alone is liableto pay compensation. While contending that the compensationclaimed by the petitioners is excessive and exorbitant, sought todismiss the claim.

7. The 3[rd] respondent – APSRTC filed separate counteropposing the claim, attributing negligence to the deceased anddisowning its liability, and finally, requested the Tribunal to fastenliability on respondent Nos.1 and 2 alone.

8. The Tribunal framed three issues basing on the above pleadings. During inquiry, on behalf of the petitioners, the 1[st] petitioner examined herself as PW.1 and also examined PWs.2and 3, who are eye-witness to the occurrence and co-employee ofthe deceased and the Finance Manager of the deceased employer,respectively, and Exs.A-1 to A-7 were marked and also gotmarked Exs.X-1 to X-3 as to their entitlement for compensation. On behalf of the respondents, none was examined, but copy ofinsurance policy was marked as Ex.B-1.

9. The Tribunal found issue No.1 in favour of thepetitioners. On issue No.2, the Tribunal though, at one stage,observed that Exs.A-2 and A-5 would reflect the age of deceasedas 42 years, but, somehow, fixed the age of the deceased as 46years, since there was no other proof showing the correct age ofdeceased, and worked out the compensation by taking the basicpay at Rs.1600/- plus Rs.700/- towards incentives and, thus,arrived at Rs.2,300/- as the monthly earnings and Rs.27,600/- asthe annual income. The Tribunal by applying multiplier ‘13’ for theactual loss of income, worked out Rs.18,400/- per annum havingdeducted 1/3[rd] from Rs.27,600/- and arrived at Rs.2,71,200/-towards loss of dependency. Aggrieved of the same, the instantappeal is preferred, agitating certain grounds as mentioned in thegrounds of appeal. One of the main grounds is that the Tribunalought not to have taken the age of deceased as 46 years whenthere is no documentary evidence to show that he was 46 yearsold. The other grounds relate to deprival of amounts towards lossof estate and loss of consortium.

10. Heard Sri K. Rathangapani Reddy, learned counsel forthe petitioners – appellants, and Sri V. Srinivasa Rao, learned Standing Counsel for the 2[nd] respondent – Insurance Company. Though, notices were effected on respondent Nos.1 and 3, noneappeared on their behalf.

11. At the outset, it is to be observed that the petitionersthough, summoned PW.3 and got marked Exs.X-1 to X-3, whichare muster roll in serial No.2 and relevant entries in PaymentRegister and allotment of quarters, respectively, still, thepetitioners have not chosen to file any document to show the exactage of deceased, despite the deceased being an employee of M/sESPI Plastic Pipes Industries, Nandyal. That apart, the petitionershave not chosen to get the appointment order or the serviceregister maintained by the employer of the deceased showing theexact age of the deceased and marked and that, that has been thereason why, the Tribunal fixed the age of deceased as 46 years asagainst the entries made in Exs.A2 and A-5, which are inquestreport and postmortem examination report respectively. It is notas though, that the petitioners were precluded from filing thecertificates in proof of age of the deceased, but, still, they have notchosen to file and not chosen to get the documents summonedfrom the company to show the exact age of the deceased as onthe date of accident. Since the exact age of the deceased isrequired to be placed before the Tribunal in determining the justand reasonable compensation and to view the future prospects,the instant appeal deserves to be remitted to the Tribunal affordingan opportunity to the petitioners for leading further evidence toascertain correct age of the deceased as on the date of accident.

12. In that view of the matter, the order and decree, dated29-11-2004, in M.V.O.P. No.94 of 2003, passed by the Tribunal is

set aside remitting the matter to the Tribunal. The Tribunal isdirected to dispose of the matter, as expeditiously as possible,preferably within a period of six (06) months from the date ofreceipt of a copy of this judgment by affording an opportunity toboth sides for leading further evidence, if any, or to recall andexamine the witnesses already examined to ascertain the correctage of deceased as well as permissible deductions to be made onthe salary of deceased in arriving at the monthly earnings indetermining the just and reasonable compensation. However, it isneedless to mention that the Tribunal shall dispose of the matteron merits uninfluenced by the observations, if any, made by thisCourt.

13. With the above observations, the appeal is allowed. There shall be no order as to costs.

14. As a sequel thereto, miscellaneous applications, if any,pending in the appeal, stand disposed of.

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A. SHANKAR NARAYANA, J

February 11, 2015.

Note:Furnish C.C. of the judgment within one week.(B/o) Mgr