APHC010061122019 IN THE HIGH COURT OF ANDHRA PRADESH FRIDAY, THE TWO THOUSAND AND TWENTY FIVE THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL Between: C Nookaratnam and Others M Gayatri and Others Counsel for the Appellant(S): 1. SRINIVASA RAO KURAPATI Counsel for the Respondent(S): 1. RAMA MOHAN RAO KOTHA 2. AMANCHARLA SATISH BABU 3. IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) THE TWENTY EIGHTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 118/2019 C Nookaratnam and Others ...APPELLANT(S) AND ...RESPONDENT(S) Counsel for the Appellant(S): SRINIVASA RAO KURAPATI Counsel for the Respondent(S): RAMA MOHAN RAO KOTHA SATISH BABU IN THE HIGH COURT OF ANDHRA PRADESH [3333] TWENTY EIGHTH DAY OF MARCH THE HONOURABLE SMT JUSTICE V.SUJATHA MISCELLANEOUS APPEAL NO: 118/2019 ...APPELLANT(S) ...RESPONDENT(S) 2 The Court made the following Judgment: This appeal under Section 173 of the Motor Vehicles Act 1988, (in short ‘M.V.Act’), has been filed by the claimants/appellants, seeking enhancement of the Award, dated 10.12.2018, passed in M.V.O.P.No.1352 of 2011 on the file of the Motor Vehicle Accidents Claims Tribunal-cum-XIII Additional District Judge, Gajuwaka (in short ‘the Tribunal’). 2. The brief facts of the case are as follows: On 29.04.2010, at about 09:00 hours, Sri Chintakayala Siva Kumar @ Siva (deceased) boarded the bus bearing No.AP31 Y 1413 at Narsipatnam Town as a driver and after reaching Visakhapatnam, he returned to Narsipatnam again in the same bus on the very same day. When the said bus reached BHPV Junction at about 13:00 hours, driver of a lorry bearing No.AP 31 U 8499, which was going infront of the bus being driven by the deceased, drove the lorry in a rash and negligent manner, without following the traffic rules. While so, on seeing the beat constable in that junction, the lorry driver applied sudden breaks, resulting which the driver of the bus (deceased), who was following the said lorry got in contact to the rear side of the lorry, as there was no chance to escape, in which the deceased received grievous fracture injuries to both legs and the stomach of the deceased also got pressed to the steering which caused grievous internal injuries. Immediately, the deceased was 3 shifted to APEX Hospital for treatment, wherein he underwent treatment for one (01) week in ICU and thereafter, he was shifted to Simhadri Hospital, for better treatment wherein he underwent abdomen operation, which failed due to the unconscious condition of the deceased. The deceased was inpatient for more than one (01) month in Simhadri Hospital and spent more than Rs.7,00,000/- (Rupees seven lakhs only) for his treatment in both hospitals. While so, the deceased died on 08.06.2012 at about 13:55 hours while taking treatment in the Simhadri Hospital. 3. Respondent Nos.1, 5 to 8 therein remained ex parte and the 3rd respondent died. Respondent No.2/Bajaj Allianz General Insurance Company Limited and respondent No.4/National Insurance Company Limited contested before the Tribunal below. 4. Respondent No.2/Insurance Company filed counter affidavit before the Tribunal and submitted that the lorry bearing registration No.AP 31 U 8499 was insured with the respondent No.2/Insurance Company, subject to certain terms and conditions. As per the Motor Vehicle Rules, the deceased was supposed to maintain considerable distance between his front vehicle and his vehicle in order to stop suddenly in case of any emergency. But, the deceased failed to maintain the same and that was the major reason for occurrence of the accident. There is no negligence on the part of the driver of the lorry. Moreover, the petitioners have to prove that they are the legal 4 heirs of the deceased and also prove the income of the deceased as Rs.8,000/- per month. 5. Respondent No.4/National Insurance Company Limited also filed counter affidavit before the Tribunal below and submitted that, as the deceased was the owner-cum-driver of the bus bearing registration No.AP 31 Y 1413, he is not 3rd party and therefore, the claim is not maintainable. The investigation results show that the accident took place due to rash and negligent driving of the driver of the lorry. Respondent No.4/Insurance Company is not a necessary party to the said proceedings. The vehicle does not belong to the deceased and the deceased does not have valid driving license, but the vehicle was insured with respondent No.4/Insurance Company. The petitioners have to prove the age and income of the deceased. 6. The Tribunal framed the following issues for consideration: 1. Whether the pleaded motor vehicle accident has occurred on 29.04.2010 at about 13.00 hours at BHPV signal point, NH-5 road, Visakhapatnam, resulting the death of Ch. Siva Kumar @ Siva? 2. Whether the accident occurred due to the fault of the driver of lorry bearing No.AP 31 U 8499? 3. Whether the claimants are entitled for compensation and if so, to what amount and what is the liability of respondents? 4. To what relief? 7. On behalf of the claimants, 1st petitioner was examined as P.W.1 & other witnessed were examined as P.Ws.2 to 4 and Exs.A1 5 to A.7 and Exs.X1 & X2 were marked. On behalf of the respondents, the Assistant Manager-Legal of respondent No.2/Insurance Company was examined as R.W.1 and the Assistant Officer of respondent No.4/Insurance Company was examined as R.W.2 and Exs.B.1 & B.2 true copy of the polices were got marked. 8. The Tribunal below having found that the deceased, who is the driver of the said bus, was negligible for not maintaining proper distance and the driver of the lorry stopped his vehicle suddenly and as such, held that there is negligence on the part of both drivers of the said lorry & the bus and the liability was fixed equally at 50% on both the drivers. 9. Though P.W.1, who is the wife of the deceased claimed that the deceased used to draw salary of Rs.8,000/- per month, but on the ground that she was possessing White Ration Card and in the absence of any documentary evidence to prove the income of the deceased, the Tribunal below, as held by the Hon’ble Apex Court in the case of Govind Yadav vs. New India Insurance Company Ltd., 1 decided on 01.11.2011, took the annual income of the deceased as Rs.36,000/- (National Annual Income). 10. As the age of the deceased was 36 years by the date of his death, as per the table suggested in Sarla Varma vs. Delhi 1 Civil Appeal No.9014 of 2011 6 Transport Corporation Ltd., 2 , the Tribunal below applied the multiplier as “15”. The Tribunal below, as held by the Hon’ble Apex Court in case of National Insurance Company Limited vs. Pranay Sethi and others3, took percentage of future prospects at the rate of 40%, as the age of deceased was below 40 years. The income together with 40% future prospects is equal to Rs.50,400/- (Rs.36,000/- + Rs.14,400/-). Deducting 1/3rd of Rs.50,400/- (Rs.50,400/- -Rs.16800/- =Rs.33,600/-) towards personal expenses of the deceased, the Tribunal below has arrived at an amount of Rs.5,04,000/- towards loss of dependency, by applying the multiplier as 15 (Rs.33,600/- x 15). 11. Though the appellants herein claimed an amount of Rs.5,83,614/- (Rupees Five Lakhs Eighty Three Thousand Six Hundred and Fourteen only) vide Ex.A.7, which is the discharge bill issued by the Simhadri Hospital, the Tribunal below failed to consider the same on the ground that, as the appellants are the White Ration Card holders, they might have got treated under Aarogyasree, which infact is free of cost and as such, the Tribunal below failed to grant any amount for the medical expenses incurred by the appellants herein. 2 2009 ACJ 1295 SC 3 2017 (6) ALT 60 (SC) 7 12. The Tribunal below, by relying on National Insurance Company Limited vs. Pranay Sethi and others 4 , granted Rs.15,000/- towards Funeral Expenses, Rs.40,000/- towards Consortium and Rs.15,000/- towards Loss of Estate and also Rs.5,000/-, as claimed by the appellants towards transportation charges, which comes to the total of Rs.5,79,000/- (Rupees Five Lakhs Seventy Nine Thousand only). After deducting 50% of contributory negligence, on the part of the deceased, the Tribunal below awarded an amount of Rs.2,89,500/- with proportionate costs and interest @ 7.5% per annum from the date of petition, till the date of deposit or realization. 13. The Tribunal having observed that the 1st respondent being the owner, the 2nd being the insurer and the 8th respondent being the of the driver of the lorry and the insurance policy was in force as on the date of the occurrence of the incident, fixed the liability jointly and severally against the respondent Nos.1, 2 & 8. 14. Challenging the said award, seeking enhancement, the present Appeal is preferred by the appellants/claimants. 15. Learned counsel for the appellants/petitioners contends that the Tribunal below erroneously granted meagre compensation by equally fixing the contributory negligence on the part of the driver of 4 2017 (6) ALT 60 (SC) 8 the lorry and as well as the deceased at 50%. The Tribunal failed to consider the medical expenses filed Ex.A.7 for an amount of Rs.5,83,614/-. The Tribunal also failed to consider the income of the deceased as Rs.8,000/- per month, instead took the income as Rs.3,000/- per month. 16. On the contrary, learned Standing Counsel for respondent No.2/Bajaj Allianz Insurance Company Limited contends that the incident occurred due to the negligence on the part of the deceased, having failed to maintain considerable distance between his front vehicle and his vehicle. He also contends that there is no negligence on the part of the driver of the lorry. 17. And also, learned Standing Counsel for respondent No.4/National Insurance Company Limited contends that the deceased being the owner-cum-driver of the bus, is not 3rd party and hence, the claim is not maintainable. He also contends that the accident occurred due to rash and negligent driving of the driver of the lorry. 18. To decide whether there is contributory negligence on the part of the deceased, it is necessary to advert to the evidence of P.W.2. 19. P.W.2, who is the Conductor of the Bus bearing No.AP 31 Y 1413, deposed in his evidence that the driver of lorry, afraid of 9 seeing the beat constable in the junction, applied sudden brake to the crime vehicle lorry, as a result of which deceased who was driving the bus behind the Crime vehicle Lorry, unable to control the bus, dashed to the rear side of crime vehicle lorry as there was no chance to escape from the accident, due to the said accident deceased sustained grievous injuries. 20. Relying on the evidence of P.W.2, the Tribunal rightly held that there is negligence on the part of the deceased also, as he failed to maintain proper distance between the lorry and his bus. Regulation 23 of the Rules of the Road Regulations, 1989, deals with “distance from vehicles in front”. “23. Distance from vehicles in front.- The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop.” 21. In “Nishan Singh Vs. Oriental Insurance Company Limited5” the Apex Court while referring to the said Regulation 23, held as follows: “The expression ‘sufficient distance’ has not been defined in the Regulations or elsewhere. The thumb Rule of sufficient distance is at least a safe distance of two to three seconds gap in ideal conditions to avert collision and to allow the following driver time to respond.” 5 (2018) 6 SCC 765 10 22. In view of the law laid down by the Apex Court in the said judgment, as the deceased did not maintain proper distance between his vehicle and crime lorry, this Court is not inclined to interfere with the finding recorded by the Tribunal that there was 50% contributory negligence on the part of the deceased and the driver of the offending lorry. 23. P.W.4, who is none other than Billing Manager in Simhadri Hospital, Visakhapatnam, wherein the deceased was admitted immediately after the accident on 06.05.2010 and discharged on 08.06.2010, supported the case of the claimants with regard to issuance of Ex.A.7 - Discharge Bill. It is also not the case of the P.W.4 that the deceased was white ration card holder and was also holding Aarogyasree card, as such the treatment given to him in the said hospital was free of cost. It is not even the case of the claimants that they are white ration cardholders. Basing on the suggestion given to P.W.4 during the course of cross-examination by respondent No.2 that free treatment was holding white ration card and given to white ration cardholders and separate record is maintained for Aarogyasree cardholders, it cannot be believed that the deceased was given treatment free of cost. Even otherwise Ex.A.7 is the original discharge bill for Rs.5,83,614/- and the same was admitted by P.W.4 during his cross-examination. 11 24. In view of the same, this Court is of the opinion that Ex.A.7, being the original discharge bill, is believable and the claimants are entitled for an amount of Rs.5,83,614/- towards medical charges in addition to the amount already granted by the Tribunal. 25. Accordingly, the appeal is allowed in part enhancing the compensation from Rs.2,89,500/- to Rs.8,73,114/- with interest at 6% P.A. However, the claimants are permitted to withdraw the compensation proportionately in accordance with the directions given by the Tribunal in the Award. There shall be no order as to costs. As a sequel, Interlocutory Applications pending, if any, shall stand closed. __________________ JUSTICE V.SUJATHA Date: 28.03.2025 MDP