1 VS,J MACMA_24 & 32 of 2023 APHC010647102022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] TUESDAY,THE SEVENTEENTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NOs: 24 & 32/2023 MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 24/2023 Between: 1. SHAIK HASEEN, W/O. KALESHA@ KALESHAVALI, AGED 27 YEARS, R/O. VELURU VILLAGE AND POST, PODILI MANDAL, PARKAS DISTRICT. 2. SHAIK MAHABOOB SUBHANI,, S/O. KALESHA@ KALESHAVALI, AGED 9 YEARS,R/O. VELURU VILLAGE AND POST, PODILI MANDAL, PARKAS DISTRICT. 3. SHAIK SHAFI,, S/O. KALESHA@ KALESHAVALI, AGED 07 YEARS R/O. VELURU VILLAGE AND POST, PODILI MANDAL, PARKAS DISTRICT. 4. SHAIK PEDDA MASTAN,, S/O. PAKIR SAHEB (DIED) AGED 50 YEARS, 5. SHAIK MASTAN BEE,, W/O. PEDDA MASTAN, AGED 50 YEARS, R/O. VELURU VILLAGE AND POST, PODILI MANDAL, PARAKASAM DISTRICT. ( PETITIONER NO.4 DIED ON 21-01-2019. HIS LRS ARE ALREADY ON RECORD) ...APPELLANT(S) AND 2 VS,J MACMA_24 & 32 of 2023 1. A P STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS VICE CHAIRMAN AND MANAGING DIRECTOR, OWNER OF THE BUS BEARING NO. AP 26 Z 0172, BUS BHAVAN, MUSHEERABAD, HYDERABAD. 2. A P STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, RTC BUS STAND COMPLEX, ONGOLE,PARKAS DISTRICT. 3. SHAIK SULTHAN, S/O MASTAN, AGED37 YEARS, MUSLIM, APSRTC DRIVER, SUJATHANAGAR COLONY OPPSITE TO ELEMENTARY SCHOOL, VINJAMUR VILLAGE AND POST VINJAMUR MANDAL, SPSR NELLORE DISTRICT. ...RESPONDENT(S): Appeal filed under Order 41 of CPC before the High Courtaggrieved by the order and decree passed in M.V.O.P No.377 of 2016 dated17- 08-2022 , on the file of Motor Accident Claims Tribunal - cum -1 Addl. District and Sessions Judge, Ongole Parkas District Counsel for the Appellant(S): 1. NUTHALAPATI KRISHNA MURTHY Counsel for the Respondent(S): 1. ARAVALA RAMA RAO(SC FOR APSRTC KKAC) MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 32/2023 Between: 1. A.P.S.R.T.C., REPRESENTED BY VICE CHAIRMAN AND MANAGING DIRECTOR, BUS BHAVAN, MUSHEERABAD, HYDERABAD, PRESENTLY AT PNBS, VIJAYAWADA. 2. APSRTC,, REP. BY ITS REGIONAL MANAGER, REGIONAL OFFICE, RTC BUS STAND COMPLEX, ONGOLE, PRAKASAM DISTRICT. ...APPELLANT(S) AND 3 VS,J MACMA_24 & 32 of 2023 1. SHAIK HASEENA, W/O KALESHA @ KALESHAVALI, AGED 33 YEARS, R/O VELURU VILLAGE, PODILI MANDAL, PRAKASAM DISTRICT. 2. SHAIK MAHABOOB SUBHANI, S/O KALESHA @ KALESHAVALI, AGED 15 YEARS, R/O VELURU VILLAGE, PODILI MANDAL, PRAKASAM DISTRICT. 3. SHAIK SHAFI, S/O KALESHA @ KALESHAVALI, AGED 13 YEARS, R/O VELURU VILLAGE, PODILI MANDAL, PRAKASAM DISTRICT. 4. SHAIK PEDA MASTHAN, S/O PAKIR SAHEB ( DIED). 5. SHAIK MASTAN BEE, W/O LATE PEDA MASTHAN, AGED 56 YEARS, R/O VELURU VILLAGE, PODILI MANDAL, PRAKASAM DISTRICT. (RESPONDENTS 2 AND 3 BEING MINORS REP. BY THEIR MOTHER CUM NATURAL GUARDIAN 1ST RESPONDENT) 6. SHAIK SULTHAN, S/O MASTHAN, AGED 43 YEARS, APSRTC DRIVER, R/O SUJATHA NAGAR COLONY, OPP ELEMENTARY SCHOOL, VINJAMUR VILLAGE, VINJAMUR MANDAL, SPSR NELLORE DISTRICT. (RESPONDENT NO 6 IS NOT A NECESSARY PARTY) ...RESPONDENT(S): Appeal filed under Order 41 of CPC before the High Courtbegs to prefer this memorandum of of being aggrieved by the decree and judgment passed in M.V.O.P No. 3)7 of 2 dated 17.08.2022, on the file of Motor Accident Claims Tribunal -am- I District Judge, Ongole IA NO: 1 OF 2023 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 pleased to condone the delay of 64 days in filing the above MACMA in MVOP No. 377 of 2016, dt. 17-08-2022 on the file of Motor Accidents Claims Tribunal cum I Addl. District Judge, Ongole IA NO: 2 OF 2023 4 VS,J MACMA_24 & 32 of 2023 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 pleased to grant stay of operation of Decree and Order dt. 17-08-2022 passed in MVOP No. 377 of 2016 on the file of Motor Vehicles Accidents Claims Tribunal cum I Addl. District Judge, Ongole IA NO: 3 OF 2023 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 Pleased to vacate the interim order dated 03-02-2023 passed in IA No. 2 of 2023 in MACMA 32 of 2023 on the file of this Hon'ble Court and pass Counsel for the Appellant(S): 1. ARAVALA RAMA RAO(SC FOR APSRTC KKAC) Counsel for the Respondent(S): 1. NUTHALAPATI KRISHNA MURTHY The Court made the following: 5 VS,J MACMA_24 & 32 of 2023 COMMON JUDGMENT:- Both the appeals are filed against the same judgment dated 17.08.2022 passed by the Motor Vehicle Accidents Claims Tribunal – cum – I Additional District Judge, Ongole in M.V.O.P.No.377 of 2016. Hence, I feel it appropriate to decide these appeals by way of a common Judgment. 2. M.A.C.M.A.No.24 of 2023 is filed by the claimants seeking enhancement of the compensation of Rs.5,19,450/- which is awarded by way of the impugned judgment and M.A.C.M.A.No.32 of 2023 is filed by APSRTC challenging the quantum of compensation. 3. For the sake of convenience, the parties are referred to as they are arrayed before the Tribunal. The claimant No.1 is the wife, claimant Nos.2 and 3 are sons and claimant Nos.4 and 5 are parents of one Shaik Kalesha @ Kaleshavali (hereinafter referred to as ‘deceased’). Respondent Nos.1 and 2 are officials of APSRTC and the 3rd respondent is the driver of the bus bearing No.AP-26-Z-0172. The deceased was a welding worker and on 02.02.2016, at about 08.10 p.m., while he was returning from Darsi on a motorcycle after purchase of few articles along with one Gone Srinivasa Rao (pillion), at a petrol bunk near Rajampalli village situated opposite to Brick Lin, the bus bearing No.AP-26-Z-0172 (hereinafter referred to as ‘bus’) coming in opposite direction in a rash and negligent way on the wrong side of the road, dashed the motorcycle of the deceased, as a result of which, the deceased sustained injuries and died on the spot. Seeking compensation of Rs.10,00,000/- for the death of the deceased, the claimants have filed a petition before the Tribunal under Sections 166(1)(c) and 168 of the Motor Vehicle Act, 1988 read with Rule 455 of Andhra Pradesh Motor Vehicle Rules, 1989. 6 VS,J MACMA_24 & 32 of 2023 4. The 1st respondent contested the petition by filing a written statement wherein it was contended that the accident took place due to the rash and negligent driving of the deceased and that the same is also reflected in the FIR filed by the Police against the deceased. Hence, the respondent corporation is not liable to pay any compensation to the claimants and requested to dismiss the petition. 5. Basing on the above pleadings, the Tribunal framed the following issues for trial: 1) Whether the deceased Shaik Kalesha @ Kaleshavali died in a road accident which took place on 02.02.2016 at about 08.10 pm., at Bricks Kiln near Rajampalli village on Darsi-Podili road due to rash and negligent driving of APSRTC Bus bearing No. AP 26 Z 0172 by its driver? 2) Whether the petition is bad for non joinder of necessary parties? 3) Whether the petitioners are entitled for compensation? If so, to what amount and against whom? 4) To what relief, the petitioners are entitled? 6. During the course of trial, the 1st claimant got herself examined as P.W.1 and two others were examined as P.Ws.2 and 3. Exs.A1 to A7 were marked on behalf of the claimants whereas no documentary evidence was marked on behalf of the respondents, however, R.W.1 was examined. 7. The Tribunal, after considering all the facts and material available before it, came to a conclusion that the accident occurred due to the rash and negligent driving of the deceased as well as the driver of the bus and hence, the Tribunal fastened 50% responsibility against the 3rd respondent and 50% against the deceased. Further, the Tribunal computed the amount of compensation as Rs.10,38,900/- and after deducting 50% of the same towards contributory negligence on the part of 7 VS,J MACMA_24 & 32 of 2023 the deceased, it directed the respondents to pay Rs.5,19,450/- to the claimants vide its judgment dated 17.08.2022. Aggrieved by the said compensation, the claimants have approached this Court on the ground that the Tribunal erred in fixing 50% responsibility on the part of the deceased and that the Tribunal had not considered notional monthly income of the deceased as per minimum wages act. The APSRTC approached this Court on the ground that the Tribunal erred in taking the monthly income of the deceased as Rs.4,500/- in the absence of any cogent evidence; that the deceased while riding the motorcycle hit a stone resulting in loss of balance and dash to the bus, thus holding APSRTC liable for paying compensation to an extent of 50% is completely contrary to law; that no criminal case was filed against the driver of the bus and as such the APSRTC is not liable to pay any compensation to the claimants. 8. Heard Sri. Nuthalapati Krishna Murthy, learned counsel for the claimants and Sri. Aravala Rama Rao, learned Standing Counsel for APSRTC. 9. Perused the entire material available on record. It is the case of the 1st claimant that the deceased went to Darsi to purchase welding articles and on his return along with Gone Srinivasarao (P.W.2) on a motorcycle being driven by the deceased, near petrol bunk situated at Rajampalli village, at about 08.10 p.m., the bus belonging to the respondents was coming in an opposite direction on wrong side of the road and dashed the motorcycle of the deceased resulting in the spontaneous death of the deceased. In support of her case she got marked on FIR as Ex.A1, inquest report (Ex.A2), postmortem certificate (Ex.A3), rough sketch of the scene of offence (Ex.A4), scene observation 8 VS,J MACMA_24 & 32 of 2023 report (Ex.A5), proceedings of Sub-divisional police officer, Darsi (Ex.A6). However, it is very clear that P.W.1 is a hearsay witness and is not an eye witness. P.W.2, the pillion rider of the motorcycle, who is an eye- witness to the accident had stated that on the fateful day, while they were returning from Darsi, after crossing Kothareddipalem, near petrol bunk situated at Rajampalli village, the bus driven by the 3rd respondent in a rash and negligent manner came in opposite direction on the wrong side of the road dashed the motorcycle and as a result of the same, the deceased sustained multiple injuries and died on the spot. He categorically stated that the accident occurred due to the rash and negligent driving of the 3rd respondent. 10. R.W.1 – Superintendent and Legal Officer, Regional Manager Officer (Ongole), APSRTC, in his chief affidavit has stated that on the date of accident due to dazzling of the head lights of the bus, the deceased hit a big stone kept on the left side of the road and dashed against the right side corner of the bus resulting in fatal injuries and he succumbed to injuries. It was further stated that the accident occurred due to the negligence of the deceased and that FIR was filed by the Police against the deceased. 11. It is evident from the impugned judgment that the Tribunal had observed that the deceased lost control of his motorcycle as he hit a stone placed on the side of the road, which in fact is due to dazzling of the head lights of the bus; it observed that in general, when vehicles travel head to head during night, dim light should be given by the drivers of the vehicles including bus, lorries etc, which cautions the other vehicle. It is clear that the mistake is crept on the part of the bus driver for not dimming the lights as it might enable the deceased or any oncoming 9 VS,J MACMA_24 & 32 of 2023 person to pass by safely. The Tribunal, though has pointed out the mistake committed by the driver of the bus, fixed 50% responsibility on the part of the deceased for occurrence of the accident, which in the considered opinion of this Court is untenable. P.W.2, who was the pillion as on the date of accident had categorically stated that driver of the bus drove the same in rash and negligent manner. He had deposed that the deceased lost control of his motorcycle after hitting a stone lying on the left side of the road resulting in a dash to the side corner of the bus. Merely because P.W.2 had not stated about hitting the stone in his chief affidavit, the Tribunal disbelieved his evidence and observed that P.W.2 stated thus in order to help the claimants get compensation. Ultimately, the Tribunal erroneously fixed 50% responsibility against the 3rd respondent and 50% against the deceased. 12. While awarding quantum of compensation, relying on Ex.A2 – inquest report and Ex.A3 – postmortem certificate, the Tribunal considered the age of the deceased as ‘29’; though the claimants contended that the deceased used to earn Rs.15,000/- per month, no documentary evidence was put forward by the claimants due to which, the Tribunal relying upon a judgment of the Apex Court, took the notional monthly income of the deceased as Rs.4,500/- which computes to an annual income of Rs.54,000/-. Furthermore, 40% over the annual income was added towards future prospects as per National Insurance Company Vs. Pranay Sethi 1 , which computes to Rs.75,600/- [Rs.54,000/- + Rs.21,600/- (40% of Rs.54,000/-)]. As per Sarla Verma and Ors. Vs. Delhi Transport Corporation and another2, the proper multiplier applicable to the deceased is ‘17’. The amount of compensation 1 (2017) 16 SCC 680 2AIR 2009 SCC3104 10 VS,J MACMA_24 & 32 of 2023 under the head of loss of dependency was computed by the Tribunal as Rs.12,85,200/- [Rs.75,600/- X 17] and as the 4th claimant died pending the claim petition, considering claimant Nos.1 to 3 and 5 as dependents, the Tribunal reduced 1/4th of such amount towards personal expenses and the amount thus computed is Rs.9,63,900/- [Rs.12,85,200/- - 1/4th]. 13. In addition, Rs.15,000/- for funeral expenses, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards loss of estate and Rs.5,000/- towards transport charges, which are just and reasonable in the opinion of this Court. In total, the Tribunal assessed the compensation payable to the claimants as Rs.10,38,900/- and directed the respondents to pay Rs.5,19,450/- to the claimants as it held 50% responsibility on the part of the deceased, which is untenable as discussed hereinabove. 14. In view of the above discussion, the claimants are entitled to be paid the entire amount of Rs.10,38,900/- as compensation. It can also be seen that the Tribunal had awarded only Rs.40,000/- as consortium to the claimant No.1 but had not awarded any amount to claimant Nos.2, 3 and 5 under the said head. Thus, in addition Rs.1,20,000/- (Rs.40,000/- each to claimant Nos.2, 3 and 5) is hereby awarded under the head of consortium. In total the claimants are liable to be paid Rs.11,58,900/- [Rs.10,38,900/- + Rs.1,20,000/-] by respondent Nos.1 to 3. 15. In view of the foregoing discussion, the compensation awarded by the Tribunal under different heads and amounts would now become as under: S. No Head of the claim Compensation awarded by the Tribunal in Rs. Amounts now altered by this Court 1. Loss of dependency Rs.9,63,900/- Rs.9,63,900/- 11 VS,J MACMA_24 & 32 of 2023 2. Funeral Charges Rs.15,000/- Rs.15,000/- 3. Loss of estate Rs.15,000/- Rs.15,000/- 4. Loss of Consortium Rs.40,000/- Rs.1,60,000/- 5. Transport charges Rs.5,000/- Rs.5,000/- 6. Amount deducted towards contributory negligence Rs.5,19,450/- [Rs.10,38,900/- / 2] - Total Rs.5,19,450/- Rs.11,58,900/- 16. In the result, M.A.C.M.A.No.32 of 2023 filed by APSRTC is dismissed and M.A.C.M.A.No.24 of 2023 is allowed by enhancing the compensation from Rs.5,19,450/- to Rs.11,58,900/-. The respondent Nos.1 to 3 in the claim petition shall pay Rs.11,58,900/- to the claimants with interest @7.5% per annum. The enhanced amount shall be apportioned amongst the claimants as was apportioned before the Tribunal. No costs. Consequently, miscellaneous applications pending, if any, shall stand closed. ___________________ JUSTICE V. SUJATHA Date:17.03.2026. Gss