APHC010027042020 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] TUESDAY,THE TWENTIETH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 153/2022 Between: 1. THE ORIENTAL INSURANCE COMPANY LTD, REPRESENTED BY ITS DIVISIONAL MANAGER ,KAKINADA, EG DIST . ...APPELLANT AND 1. BATCHU ANNAPURNA, W/O LATE SURYA SUBRAHAMANYAM , AGE 60 YEARS FE MALE HINDU ,HOUSE WIFE , R/O 1-117, OLD POST OFFICE MUKKAMALA VILLAGE AMBAJIPETA MANDAL E.G DIST . 2. BATCHU VENKATA KHEERA RAMALINGA KALYAN KUMAR, S/O LATE SURYA SUBRAHAMANYAM ,AGE 43 YEARS, MALE , HINDU ,PVT EMPLOYEE R/O. 1-4- 170/E/6P AND 79/2 MADHAVAPUR COLONY SAINIKPURI, SECUNDERABAD . 3. BATCHU RAMALAKSHMI PRASAD GUPTA, S/O LATE SURYA SUBRAHAMANYAM ,AGE 38 YEARS, MALE , HINDU ,PVT EMPLOYEE R/O 8-3-228/71/A, REHAMAT 2 VS,J M.A.C.M.A.NO.153 OF 2022 NAGAR , NEAR GURDWAR ,YOUSUFGUDA CHECKPOST ,KHAIRATABAD, HYDERABAD. 4. GANISETTY RAMBABU, S/O. NAGESHWARA RAO HINDU AGED ABOUT 36 YEARS DRIVER R/O, D.NO. 5- 14 VANAPALLI VILLAGE, KOTHAPETA MANADAL EG DIST. 5. SATHI SURYA BHASKER REDDY, S/O. KONDA REDDY AGE . 48 YEARS , MALE ,HINDU , UBALANKA VILLAGE , KOTHAPETA MANDAL . ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased toThe order passed in M.V.O.P. No. 37/2015, dated 28.06.2019 on the fie of the II Additional District Judge Motor Accident Claims Tribunal II Additional District Judge, East Godvari, Amalapuram. IA NO: 1 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to Condon the delay of 54 in filing the appeal in the above decree and judgment dt. 28- 06-2015 passed in M.V.O.P.No. 37/2015 on the file of the II ADDL. DIST JUDGE MOTOR ACCIDENT CLAIMS TRIBUNAL II ADDL. DIST JUDGE, EAST GODAVARI, AMALAPURAM and pass IA NO: 2 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay of all other proceedings in the above decree and judgment dt. 28-06-2015 passed in M.V.O.P.No. 37/2015 on the file of the II ADDL. DIST 3 VS,J M.A.C.M.A.NO.153 OF 2022 JUDGE MOTOR ACCIDENT CLAIMS TRIBUNAL II ADDL. DIST JUDGE, EAST GODAVARI, AMALAPURAM and pass Counsel for the Appellant: 1. V DURGA Counsel for the Respondent(S): 1. V S K RAMA RAO The Court made the following: 4 VS,J M.A.C.M.A.NO.153 OF 2022 JUDGMENT: This Civil Miscellaneous Appeal is filed aggrieved the order dated 28.06.2019 in M.V.O.P.No.37 of 2015 on the file of the Court of the Motor Accidents Claims Tribunal (II Additional District Court), East Godavari, Amalapuram, whereby the said M.V.O.P. filed by respondent Nos.1 to 3 herein against the appellant/insurer and respondent Nos.4 & 5 herein, seeking compensation of Rs.12,00,000/- on account of the death of one Batchu Surya Subrahmanyam in a motor accident, was allowed in the following terms: <..In the result, the petition is allowed by granting compensation of Rs.12,00,000/- (Rupees twelve Lakhs only) with costs and with interest at the rate of 9% per annum from the date of filing of the petition till the date realization to the petitioners against the respondents herein. The respondent No.3 is directed to depost the said compensation amount within one month from the date of order of this Court. On such deposit, the 1st petitioner is entitled to withdraw Rs.3,00,000/- (Rupees three lakhs only) immediately and 2nd and 3rd petitioners are entitled to receive Rs.1,00,000/- each and the remaining balance amount of compensation shall be deposited in any Nationalized Bank for a period of 3 years. On such maturity, the 1st petitioner is entitled to receive the same. The advocate fee is fixed at Rs.10,000/-(Rupees Ten Thousand only)= 2. For the purpose of convenience, the parties will be referred to as they are arrayed before the Tribunal. 5 VS,J M.A.C.M.A.NO.153 OF 2022 3. The case of the claimants is briefly as follows: Claimant No.1 is the wife and claimants No.2 & 3 are the children of the deceased Batchu Surya Subrahmanyam. On 28.10.2024 at about 2-00 pm., the deceased went to Rajamahendravaram on his Hero Honda Splendor Plus Motorcycle bearing Registration No.AP 5 AE 2773 to attend retired employees9 meeting. After completion of the meeting, while returning to his village, after crossing Ravulapalem, at about 7:30 p.m., when he was proceeding slowly and cautiously on the left side of the road between Penkulapati Garuvu and Mandapalli village, he dashed against the rear side of a stationed lorry bearing Registration No. AP 5 V 34, due to which he fell on the road, sustained grievous injuries, and died on the spot. It was contended that the accident occurred due to the rash and negligent act of the lorry driver, who had parked the vehicle on the road without following traffic rules and without taking precautionary measures such as switching on lights, affixing radium reflectors, or placing parking warning signals. Due to darkness, the deceased could not notice the lorry and collided with it. After the accident, passersby found the deceased lying in 6 VS,J M.A.C.M.A.NO.153 OF 2022 a pool of blood and informed his family members through his mobile phone. The claimants contended that the deceased used to earn Rs.30,000/- per month and he was a retired employee receiving pension. Due to his sudden demise in the road accident, they lost their breadwinner. Therefore, they claimed compensation of Rs.12,00,000/- from respondent Nos. 1 to 3, driver and owner of the crime vehicle and insurer respectively. 4. Before the Tribunal, respondent No.1 & 2/driver and owner of the crime vehicle remained ex parte. 5. Respondent No.3/insurer filed a written statement, opposing the claim petition, mainly on the ground that the accident occurred due to the sole negligence of the deceased, who was riding his Hero Honda motorcycle bearing Registration No. AP 5 AE 2773 in a rash and negligent manner and also the petition is not maintainable for non-joinder of necessary parties, as the petitioners failed to implead the insurer of the deceased9s motorcycle, and that no premium was paid to cover the risk of the rider. 7 VS,J M.A.C.M.A.NO.153 OF 2022 Respondent No.3 further denied the dependency of Petitioners No.2 and 3 and contended that they are not entitled to compensation. It is further submitted that the compensation claimed is excessive and that, if any compensation is awarded, interest should be payable only from the date of award and not from the date of petition, and at a rate not exceeding 6% per annum. 6. Basing on the pleadings, the Tribunal framed the following issues for trial:- <1. Whether the death of deceased by name Batchu Surya Subrahmanyam was occurred due to rash and negligent driving of the vehicle i.e., Lorry bearing Regd. No.AP 05 V 34 by its driver i.e., 1st respondent? 2. Whether the petition is bad for non-joinder of necessary parties i.e., the owner and insurer of heor Honda motorcycle bearing Regd.No.AP05AE2773? 3. Whether the petitioners are entitled to any compensation, if so, to what amount and against whom? 4. To what relief?= 7. On behalf of the claimants, P.Ws.1 to 3 were examined and Ex.A1 to A8 were marked. On behalf of the respondent No.3/Insurer, Ex.B1- copy of insurance policy was marked. 8 VS,J M.A.C.M.A.NO.153 OF 2022 8. After hearing both parties and after considering the oral and documentary evidence on record, the Tribunal allowed the claim petition awarding compensation of Rs.12,00,000/- with costs and with interest at the rate of 9% per annum from the date of filing of the petition till the date of payment by respondents, and apportioned the compensation amount amongst the claimants as indicated in the operative portion extracted above. 9. Aggrieved by the said award, the respondent No.3/insurer preferred this appeal contending that the Tribunal failed to consider that there is a contributory negligence on the part of the deceased and erred in fixing liability on the inurer. It is further contended that the claim made by the claimants is excessive and assessing the income of the deceased is on higher side. It is, therefore, prayed to allow the appeal. 10. On the other hand, learned counsel for the claimants/respondent Nos.1 to 3 herein has supported the impugned award and prayed to dismiss the appeal. 11. To prove that the accident occurred due to the rash and negligent driving of the motor cycle, the claimants relied upon the evidence of PW-2, eye witness and Exs.A1 to A4. A perusal of 9 VS,J M.A.C.M.A.NO.153 OF 2022 the record reveals that PW-2 has categorically deposed that on the fateful day, himself and his friend Namala Risvi Charan, went to Mandapalli Village. After completion of work, while they were returning in the year 2014 at about 7:30 pm., when they reached Turmeric garden at Penukulapati garuvu, they noticed that a lorry bearing No. AP 5 V 34, loaded with red gravel, was stationed on the road facing towards Mukkamala without taking precautions in a negligent manner. The deceased, who was proceeding slowly and cautiously on the left side of the road from Ravulapalem towards Mukkamala on a Hero Honda Splendor Plus Motor Cycle, dashed on the back side of the stationed lorry, fell down, sustained injuries to his forehead and died on the spot. Exs.A1 and A4, attested copy of FIR and charge sheet respectively, would show that the police registered a case in Cr.No.210 of 2004, investigated the crime, and laid a charge sheet as against the driver of the stationed lorry. Though the insurer took a plea that the accident occurred due to the negligence of the deceased, no evidence was placed before the Tribunal to substantiate that plea. Thus, on the basis of the evidence of P.W.2-eye-witness coupled with Exs.A1 and A4/attested copies of FIR and charge 10 VS,J M.A.C.M.A.NO.153 OF 2022 sheet, the Tribunal has rightly held that the accident occurred due to the rash and negligent driving of the crime motor cycle. 12. Coming to the quantum of compensation, it was the case of the claimants that the deceased used to earn Rs.30,000/- per month and he was a retired employee receiving pension. As per the documentary evidence filed by the claimants, the deceased was drawing Rs.27,352/- towards pension. Further, the contents of Exs.A6 to A8 show that the deceased had lands in his name, and pattas were issued by the Tahsildar. Considering the said evidence, the Tribunal has taken the monthly earning of the deceased at Rs.30,000/-, which cannot be found fault with. After deducting 1/3rd of his income towards personal expenditure and applying the relevant multiplier of 879 applicable for the age of the deceased i.e., 62 years, as per the decision of the Hon9ble Apex Court in Sarla Verma v. Delhi Transport Corporation 1, the Tribunal has rightly calculated the loss of earnings to be Rs.16,80,000/-(20,000/-x12x7). Further, in terms of the decision of the Hon9ble Apex Court in National Insurance Company v. Pranay Sethi2, the Tribunal has awarded Rs.15,000/- towards 1 2009 ACJ 1298 2 2017 ACJ 2700 11 VS,J M.A.C.M.A.NO.153 OF 2022 loss of estate, Rs.10,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. The Tribunal has also awarded Rs.30,000/- in total towards loss of love and affection. The Tribunal following the applicable decisions, has rightly awarded the said amounts and held that in all, the claimants would be entitled to a compensation of Rs, 17,50,000/-. However, as the claimants claimed only Rs.12,00,000/- towards compensation, the Tribunal has restricted to compensation awarded Rs.12,00,000/- only, which is just and proper and cannot be said to be excessive or on higher side. 13. So far as the liability to pay the compensation is concerned, it is to be noted that Ex.B1-Policy certificate would disclose that the crime motor cycle was validly insured with respondent No.2/Insurer and that the policy was in force as on the date of accident. Since the crime vehicle was insured with the insurer and Ex.B1-policy certificate was in force as on the date of accident, the Tribunal held that the respondent No.3/insurer is liable to pay the compensation to the claimants. This Court finds no error in the said finding of the Tribunal, warranting interference with the impugned award. 12 VS,J M.A.C.M.A.NO.153 OF 2022 14. In the result, the appeal is dismissed. No costs. Pending miscellaneous applications, if any, shall stand closed. __________________ JUSTICE V.SUJATHA 20.01.2026 LSP