Venuthurumalli Gopala Krishna Rao, J
1. Aggrieved by the impugned award dated 19-6-2008 passed in M.V.O.P. No.764 of 2005 on the file of Chairman, Motor Accidents Claims Tribunal (District Judge), Vizianagaram, whereby the Tribunal awarded compensation of Rs.1,89,000/- to the claimants towards compensation payable by the respondents 1 and 2 and exonerating the 3rd respondent/owner of the trailer and the 4th respondent/ Insurance Company, M.A.C.M.A. No.1054 of 2012 is preferred by the claimants for claiming balance compensation amount as prayed in the claim application before the Tribunal for enhancement of the claim granted by the Tribunal. Whereas M.A.C.M.A. No.3576 of 2008 is filed by the 2nd respondent/New India Assurance Company Limited questioning the legality of the award passed by the Tribunal.
2. Both the parties in the appeal and review application will be referred to as they are arrayed in the claim application.
3. Originally, M.A.C.M.A. No.1054 of 2012 was disposed of on 12-10-2023 on hearing both sides‟ counsels. By the time of disposal of M.A.C.M.A. No.1054 of 2012 filed by the claimants, it is not brought to the notice of this bench by the counsels on record about the pendency of M.A.C.M.A. No.3576 of 2008 filed by another counsel of 2nd respondent/New India Assurance Company, which is pending before another bench, therefore, it was observed by this bench in its judgment in para-15 as follows:
“15. On appreciation of the entire evidence on record and on considering Ex.B1 – policy, the Tribunal fastened the liability on the 1st and 2nd respondents. No appeal or cross-objections are filed by the 1st and
2nd respondents against the said finding. Therefore, the 1st and 2nd respondents have to deposit the enhanced compensation amount of Rs.68,000/- with interest @ 7.5% per annum.”
By observing the same, entire liability is fastened on the respondents 1 and 2/Insurance Company in para-16 of its judgment in M.A.C.M.A. No.1054 of 2012, which is as follows:
“16. In the result, the appeal is partly allowed. The claim of Rs.1,89,000/-awarded by Tribunal is enhanced to Rs.2,57,000/-. The claimants are entitled to enhanced compensation of Rs.68,000/- with interest @ 7.5% per annum. The 1st and 2nd respondents are directed to deposit the enhanced compensation of Rs.68,000/- with interest at 7.5% per annum, as ordered above, within two months from the date of this judgment. On such deposit, the 1st and 2nd claimants are entitled to withdraw the same along with interest therein. No order as to costs.”
4. Aggrieved against the above findings, the 2nd respondent filed review application vide I.A.No.2 of 2024.
5. Another important point is that the 2nd respondent/Insurance Company filed the appeal vide M.A.C.M.A. No.3576 of 2008 against the same award, whereas the claimants filed the appeal M.A.C.M.A. No.1054 of 2012 subsequently against the same award. In grounds of review petition in I.A.No.2 of 2024, it was mentioned by the learned counsel for review petitioner in ground Nos.10 and 11 as follows:
“10. The present counsel for the Insurance Company came to know about the pendency of appeal filed by the insurance company when the counsel sent the final order copy to the insurance company then the insurance company informed about the pendency of the appeal filed by the Respondent No.2 insurance company in MACMA No.1054 of 2012.
11. The appellate court ought to have appreciated the fact that the party cannot be penalized for no fault of them. The appellate court by treating it as bona fide mistake of the counsels and can dispose of both appeals simultaneously by reviewing the order passed in MACMA No.1054 of 2012.”
6. Smt. A. Jayanthi, learned standing counsel for review petitioner/ Insurance Company, would contend that the counsel for claimants failed to bring to the notice of this bench about the pendency of the appeal filed by the Insurance Company which was filed by another counsel against the same award vide M.V.O.P.No.764 of 2005. She would further contend that if the learned counsel for claimants brought to the notice of this bench about the pendency of the appeal filed by the New India Assurance Company Limited, this Court will not observe in its judgment in para-15 that “no appeal or cross-objections are filed by the respondents 1 and 2 against the said finding, therefore the respondents 1 and 2 have to deposit the enhanced compensation of amount”. The same is not at all disputed by all the counsels in the present case on hand.
7. No doubt, at the time of disposal of M.A.C.M.A. No.1054 of 2012, it was not brought to the notice of this bench by the counsels on record about the pendency of M.A.C.M.A. No.3576 of 2008 which was pending before another bench. Therefore, it was observed by this bench in para-15 of its judgment that “the entire liability is fastened on the respondents 1 and 2 by the Tribunal, no appeal or cross-objections are filed by the respondents 1 and 2 against the said finding, therefore respondents 1 and 2 have to deposit the enhanced amount”. On considering the entire material on record and on considering the above submissions made by the learned counsel on record and on considering ground Nos.10 and 11 mentioned by the review petitioner in grounds of review petition, I am of the considered view that there are some merits in the review application filed by the review petitioner/New India Assurance Company Limited in respect of paras-15 and 16 of judgment of this bench in M.A.C.M.A. No.1054 of 2012.
8. Both the review petition and M.A.C.M.A. No.3576 of 2008 are filed against the one award passed by the Tribunal i.e. M.V.O.P. No.764 of 2005, dated 19-6-2008, on the file of the Motor Accidents Claims Tribunal cum District Judge, Vizianagaram. Therefore, common judgment is being pronounced in both the review petition and so also in M.A.C.M.A. No.3576 of 2008.
9. The claim petitioners filed the petition under Section 163A of the Motor Vehicles Act, 1988 (the „M.V. Act‟) and Rule 455 of the M.V. Rules (the Rules) against the respondents claiming compensation of Rs.3,00,000/- for the death of one Gantreti Appala Guruvulu, (the deceased) in a motor vehicle accident that took place on 24-02-2005.
10. Facts germane to dispose of the appeal may briefly be stated as follows: -
(i) On 24-02-2005 at about 9.00 a.m., the deceased along with others boarded the tractor bearing registration No.AP35T-0534 and trailer bearing registration No.AP30T-8723 and after loading the sand at Lakapeta Village, Champavathi River bed, the 1st respondent/driver drove the said tractor in a rash and negligent manner at high speed, resulting the deceased fell down from the tractor and the wheels of the trailer ran over him causing the death of the deceased.
(ii) The Station House Officer, Denkada Police Station, registered a case in Crime No.13/2005 against the driver of the tractor for the offence punishable under Section 304-A of IPC. The 1st respondent is the owner-cum-driver of the tractor bearing registration No.AP35T-0534, the 2nd respondent is insurer of the said tractor, the 3rd respondent is the owner of the trailer bearing registration No.AP30T-8723 and the 4th respondent is insurer of the said trailer. Hence, all the respondents are jointly and severally liable to pay compensation to the petitioners.
11. Respondents 1 and 3 remained ex parte. Respondents 2 and 4 individually filed their counter denying the manner of accident.
(i) The 2nd respondent/New India Assurance Company Limited pleaded that the deceased was not engaged as a labourer for loading and unloading the sand in the tractor and that he was only a passenger. It is further pleaded that it requires to be proved that whether the tractor involved in the accident was insured with the 2nd respondent by the date of accident and that the person driving the tractor was having valid and subsisting driving license and among other grounds urged, the 2nd respondent submitted that it is not liable to pay any compensation to the petitioners.
(ii) On the other hand, the 4th respondent/Oriental Insurance Company Limited pleaded that the accident was caused by the 1st respondent/tractor driver, whom the 3rd respondent did not employ and as such, no vicarious liability can be fastened on the 4th respondent. Hence, no liability arises on the 4th respondent and prayed to dismiss the petition exonerating the liability on the 4th respondent.
12. Based on the above pleadings of both the parties, the following issues were settled for trial by the Tribunal:
(i) Whether the deceased succumbed to the injuries sustained in the pleaded motor vehicle accident involving the motor vehicle tractor and trailer bearing registration Nos.AP30T-0534 and AP30T-8723 while it was in use in public place ?
(ii) Whether the petitioners are entitled to any compensation and if so, what quantum and what is the liability of the respondents ? and
(iii) To what relief?
13. During the course of enquiry in the claim petition, on behalf of the petitioners, P.Ws.1 and 2 were examined and Exs.A-1 to A-4 were marked. On behalf of the respondents, Exs.B-1 and B-2 were marked.
14. At the culmination of the enquiry, based on the material available on record, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of offending tractor and trailer and accordingly, allowed the claim petition in part and awarded an amount of Rs.1,89,000/- with proportionate costs and interest at 9% per annum from the date of petition till the date of realization, directing the 1st and 2nd respondents to jointly pay the compensation and exonerated the 3rd and 4th respondents paying the compensation. Aggrieved against the order passed by the Tribunal, the appellants/petitioners preferred the present appeal for claiming remaining balance of compensation amount.
15. Heard learned counsels for both the parties and perused the record.
16. Now, the points for determination are:
1. Whether the order of the Tribunal needs any interference of this Court ? and
2. Whether the appellants/claimants are entitled to enhanced compensation, as prayed for ?
17. Points 1 and 2:- The case of the claimants is that petitioners 1 and 2 are the parents of the deceased and petitioners 3 to 5 are the children of the petitioners 1 and 2. On 24-02-2005, in the morning, the deceased boarded the tractor bearing registration No.AP35T-0534 and trailer bearing registration No.AP30T-8723 and the 4th respondent is the insurer of the said trailer. On the date of accident, the deceased and other labourers boarded the tractor for loading sand in the trailer and after loading the sand and on return journey, due to rash and negligent driving of the tractor by the 1st respondent, the deceased who sat on the front right mud-guard, fell down from the tractor and the wheels of the trailer ran over the right thigh of the deceased and caused instantaneous death of the deceased.
18. No doubt, P.W.1 is not an eyewitness to the incident. But, P.W.2 is an eyewitness to the accident. On considering the evidence of P.Ws.1 and 2, coupled with Ex.A-1 true copy of the F.I.R. and Ex.A-2 true copy of charge-sheet, the Tribunal arrived at a conclusion that the accident in question occurred due to rash and negligent driving of the driver of the offending tractor, which tractor is insured with the 2nd respondent/insurance company. Moreover, the claim application is filed under Section 163A of the M.V. Act, as such, the question of deciding any rash and negligent driving of the offending vehicle tractor is not at all required.
19. The material on record clearly reveals that the deceased was travelling in the offending vehicle tractor-cum-trailer as a loading and unloading coolie. Mere prove of involvement of vehicle in an accident is sufficient in a claim application under Section 163A of the M.V. Act and the same is proved by the claimants.
20. Coming to the compensation, admittedly the deceased was a bachelor, aged about 20 years, at the time of accident. The contention of the appellants is that the deceased used to earn Rs.100/- per day i.e. Rs.3,000/- per month. But no evidence was let-out by the appellants to prove the income of the deceased. The accident in question occurred in the year 2005. In those days, a labourer can easily earn Rs.75/- to Rs.100/- per day. Therefore, on considering the entire facts and circumstances of the case, the monthly income of the deceased was arrived at Rs.2,500/- per month and his annual income is arrived at Rs.30,000/-. Since the deceased was a bachelor, 50% of the income has to be deducted towards his personal expenses. If 50% is deducted, an amount of Rs.15,000/- is available to the dependents. As stated supra, the deceased was aged about 20 years as on the date of accident. So, the relevant multiplier applicable to the age group of the deceased is “17”. Since the claim application is filed under Section 163A of the M.V. Act, the loss of dependency is arrived at Rs.2,55,000/- (Rs.15,000/- x 17). In addition to the above, the Tribunal awarded an amount of Rs.2,000/-towards funeral expenses of the deceased. In total, the claimants are entitled to an amount of Rs. 2,57,000/-. Consequently, the claim of an amount of Rs.1,89,000/- awarded by Tribunal is enhanced to Rs.2,57,000/-.
21. It is brought to the notice of this bench that this matter is squarely covered by a judgment of this Court in Rajeti Samba v. Ch. Rami Naidu 2023 SCC Online AP 1509. The facts in that case are that the claimants filed a claim application under Section 163A of the M.V. Act and the offending vehicle involved in the accident is tractor and trailer and the tractor of the 2nd respondent was insured with the 4th respondent/Insurance Company and the trailer of the 3rd respondent was insured with the 5th respondent/Insurance Company in the said case, this Court directed the insurer of tractor to pay 75% of the compensation and directed the insurer of trailer to pay remaining 25% of the compensation to the claimants. Whereas, in the present case also, the claim application is filed under Section 163A of the M.V. Act and the offending vehicle tractor is insured with the 2nd respondent/Insurance Company under Ex.B-1 policy and the trailer of the 3rd respondent was insured with the 4th respondent under Ex.B-2 policy and both the policies were in force by the date of accident. Since the claim application is filed under Section 163A of the M.V. Act, the question of deciding rash and negligent act of the driver of the offending vehicle does not arise. Mere involvement of the offending vehicle itself is sufficient to decide the claim in the claim application.
22. For the aforesaid reasons, as stated supra, the claim amount of Rs.1,89,000/- awarded by the Tribunal is enhanced to Rs.2,57,000/-. The Tribunal awarded 9% interest on the awarded amount of Rs.1,89,000/-. There is no need to interfere with the said finding given by the Tribunal with regard to interest awarded on Rs.1,89,000/-. So far as the enhancement of compensation of Rs.68,000/- is concerned, the claimants are entitled to interest at the rate of 7.5% per annum. Since the offending vehicle tractor is insured with the 2nd respondent/Insurance Company by the 1st respondent under Ex.B-1 policy and the respondents 1 and 2 are liable to pay 75% of the total compensation including the enhanced compensation and the remaining 25% of compensation has to be paid by the respondents 3 and 4 because the trailer of the offending vehicle is insured with the 4th respondent/Insurance Company by the 3rd respondent.
23. In the result, the review application in I.A.No.2 of 2024 in M.A.C.M.A. No.1054 of 2012 and the appeal in M.A.C.M.A. No.3576 of 2008 are disposed of. The claim of Rs.1,89,000/- awarded by the Tribunal is enhanced to Rs.2,57,000/- (Rupees two lakhs and fifty seven thousand only). The Tribunal awarded interest of 9% per annum on Rs.1,89,000/-, the claimants are entitled to the same interest. The claimants are entitled to enhanced compensation of Rs.68,000/- (Rupees sixty eight thousand only) with interest at the rate of 7.5% per annum. The respondents 1 and 2 in claim application are directed to deposit an amount of Rs.1,92,750/- (75% of the total claim) (Rupees one lakh, ninety two thousand, seven hundred and fifty only) with interest, as ordered above and the respondents 3 and 4 in claim application are directed to deposit an amount of Rs.64,250/- (25% of the total compensation) (Rupees sixty four thousand, two hundred and fifty only) with interest, as ordered above, within 2 (two) months from the date of this judgment. On such deposit, the claimants are entitled to withdraw the same along with interest thereon. Pending applications, if any, shall stand closed. No order as to costs.
