Smt.Dobba Agamma v. Syed Yakub Ali

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO C.M.A.No.3920 OF 2004 JUDGMENT:

The claimants are no other than mother and two minor sisters of deceased by name Dodda Babu, S/o.Swamy, aged about 28 years, unmarried, for his death due to outcome of accident occurred on 05.03.1997 at 11.30 pm while he was proceeding along with one Jagan and Kumar with 1 + 2 pillion riders of motor cycle bearing No.AP 11 B 5833 towards champapet in claiming that due to rash and negligent driving of the driver of the DCM van bearing No.AP 28 T 3729 belongs to 1st respondent insured with 2nd respondent came in a rash and negligent manner and dashed from behind resulted which, said Jagan and babu died on the spot and said kumar's belated private complaint referred to police was registered as Crime No.161 of 1997 dated 12.09.1997 but infact as per Ex.A2-post mortem report, the Crime No.

50 of 1997 was already registered and inquest conducted, and Ex.A2--post mortem shows his age about 21 years and the death caused due to head injury that also reflects in the crime No.50 of 1997. The claimants filed the claim O.P No.216 of 1999 under Section 166 of M.V. Act for compensation of Rs.2,50,000/- on the file of MACTcum-Chief Judge, City Civil Courts, Hyderabad (for short, 'the Tribunal') but the Tribunal by an award dated 26.07.2001 awarded only Rs.50,000/-. Impugning the same, they maintained the present appeal.

2. The contentions in the grounds of appeal are that the award of the Tribunal is contrary to law, weight of evidence and erroneous outcome and in ignorance of the evidence of said Kumar PW.2 informant of Ex.P1-private complaint was registered

as FIR, that the Tribunal ought to have awarded compensation as prayed for, since the accident was the result of rash and negligent driving by driver of the DCM van of 1st respondent which is covered under Ex.B1 policy. Learned counsel for claimants reiterated the same in the course of hearing in saying atleast under Section 163-A of M.V Act the compensation as per the structured formula should have been awarded by the Tribunal, hence to allow the appeal as even there from the claimants are entitled to the amount claimed.

3. Whereas, the learned counsel for respondent No.2 insurer contended that but for no cross objections even grant of Rs.50,000/- awarded by the Tribunal itself is unsustainable to set aside, that the remedy of the claimants or the claimants of the other deceased Jagan out of three persons proceeding against 1 + 1 on the bike as 1 + 2 is only if there is a personal accident coverage or if there is standard package policy of the bike to proceed with for nothing to say DCM van driver is at negligence to mulct the respondents with liability and thereby sought to dismiss the appeal.

4. Heard learned counsel for the appellants and learned counsel for respondent No.2 insurer. Respondent No.1 remained ex parte before the Tribunal hence taken as heard. Perused the material on record.

5. Now the points that arise for consideration are: 1.Whether the claimants are entitled to the compensation as prayed for before the Tribunal and the compensation awarded by the Tribunal i.e., Rs.50,000/- is unsustainable, if so requires any enhancement, with what observations and with what compensation and with what rate of interest?

2. What result?

Point No.1:

6. It is the settled law that once there is a crime already registered, any subsequent report or even a private complaint filed under Section 200 Cr.P.C and referred to police under Section 156

(3) Cr.P.C and another crime registered as FIR, the functionary value of it is under Section 161 and 162 Cr.P.C and not any sanctity of FIR under Section 154 C.P.C; for the earlier FIR subsists to continue the proceedings in earlier crime under investigation. As such Ex.A1 the so called FIR registered and private complaint referred at the instance of PW.2, who is the so called eye witness and one of the two pillion riders of the bike has no sanctity of FIR but for only investigation statement value for purpose of contradiction under Section 145 read with Section 155

(3) of Evidence Act.

7. As referred supra Crime No.50 of 1997 was registered and inquest post mortem of said Babu leaving about other deceased Jagan was conducted by the police Saidabad. In fact, Ex.A1-FIR referred supra as in Crime No.161 of 1997 which got only value of previous statement during investigation under Section 162 Cr.P.C, from the private complaint filed by said Kumar, who is no other than PW.2, who alleged that after the accident occurred on 05.03.1997 at 11.30 am, while the three passengers were proceeded on bike, of whom, he is the second pillion rider on the bike stated that the bike dashed by DCM van of 1st respondent, which is coming from behind, he went to the police station saidabad having been survived by injuries for other two were succumbed to injuries and even he presented a written complaint to the police, they did no take any action and obtained

signatures on blank papers and without even sending him to hospital he was detained. This statement on his part with no record for truth from his own say on oath before the Court as PW.2 that is reflected in page 3 line 2 of the award of the Tribunal in categorically saying he was referred for treatment to the hospital by said Saidabad police. That itself is sufficient to say that he is not a person with any little credibility and he weaved the story in the private complaint Ex.B1 supra to make a false claim by implicating the DCM van, after deliberations and consultations and by a vain attempt to get over the earlier crime registered to his knowledge and he was referred to treatment.

8. In fact from the evidence on record more particularly with reference to Ex.B2 and B3 and RWs.1 and 2 and also cross examination of PW.2 supra, from the police filed final report for no fault of DCM van driver and the Crime No.161 of 1997 also closed and produced petition filed by said Kumar PW.2 vide Exs.A6 and A7 in saying the DCM van is stationed and parked on road side and that on the date of accident himself, Babu and Jagan went to Toddy compound and after consuming toddy, they were returning on bike, the bike hit the stationed DCM van due to which PW.2 fell down and sustained injuries and the other two were succumbed to injuries.

9. In fact, there is no scene observation report filed either by the petitioners or respondents and no motor vehicle report even filed by any of them which are the material documents herein, for the reason that the scene observation report can speak the place at which the accident occurred and location of the vehicles on the road and its condition to ascertain who are at fault apart from there were any parking lights to the stationed DCM van

of the 1st respondent admittedly insured with 2nd respondent under Ex.B1-policy. Further from the very story of claimants under para No.26 of the claim petition as well as the so called eye witness, Ex.A1-FIR is the outcome after deliberations and there is no sanctity as referred supra with a version as if DCM van while coming behind dashed the bike proceeding in the same direction. If such is the case, the bike rear gear and DCM van front side gear might have been damaged, that is the material evidence that supposed to be placed by the petitioners which they did not as the insurer also as referred supra not even cause mentioned much less in the evidence of RWs.1 and 2 of there were any parking lights to the stationed DCM van even it was on the road side, that too for the accident taken place at about 11.30 pm that is not in dispute.

It clearly shows the bike front side hit or dashed rear portion of the stationed DCM van and the MVI report that can be produced by the claimants but they did not choose to file it and the non filing of that material by the claimants leads to adverse to inference to their version and equally the non filing of scene observation report or other material atleast by examination of the driver of the DCM Van to say there were parking lights at the time of accident to indicate and avert the accident, that the finder of last opportunity is on the bike rider to say but for no parking lights they could have adduced that evidence from the above and in the factual matrix, it is just to fix even from the front breakage of light of the bike is sufficient to observe the bike rider, which is majorly contributed to the accident to say 60% and remaining 40% negligence is on the part of the DCM van driver for not operating the parking lights while stationing on the road side.

The remedy if any for 60% liability of the claim of the two deceased and injured is only against the owner and insurer of the bike.

10. Now coming to fix 40% of liability, for the contribution on the part of the DCM van driver for which the 1st respondentowner and 2nd respondent -insurer liable to the heirs of the deceased persons concerned, the deceased undisputedly unmarried, the claim petition shows the age of the mother was about 45 or 46 years and the claim is maintained under Section 166 of M.V Act, as per the table of Sarla verma vs Delhi Transport Corporation[1] for the person whose age is about 4650, the multiplier applicable is '13' and if the person's age is about 41-45, the multiplier applicable is '14'. In this case it is just to take 13.

5 as multiplier for the facts as mothers age is criteria since the deceased was unmarried, from the basic principle of the dependency is calculated either basing on the length of the life of the dependents if higher to take the same or the length of the life time of the deceased if the dependents are younger to the deceased to take the same. From that among the three claimants as the two sisters are also unmarried and dependents if not atleast sufferers for the main dependent is 1st claimant-mother and as per Sarla Verma (supra) in case of deceased is bachelor, half of his earnings as on the date of accident dated 05.03.1997 to be deducted towards personal expenses, even taken as a cooli by that time with estimated earnings of Rs.2,000/- per month, if half to be deducted from it, it comes to Rs.

1,000/- per month and 40% liability therein comes to Rs.400/- X 12 X 13.5 = Rs.64,800/-. Apart from it, Rs.25,000/- towards funeral expenses, Rs.10,000/- towards loss of estate vide Rajesh vs. Rajbir Singh[2], it comes to Rs.99,800/- rounded to Rs.1,00,000/-.

11. Now coming to the rate of interest Tribunal awarded

at 9% per annum from the date of claim petition till the date of realization, which is highly excessive and exorbitant reduced to 7.5% per annum from the date of appeal till the date of realisation as per the settled expressions in TN Transport Vs. Raja Priya[3] a n d Rajesh Vs. Rajbir Singh[4]. Accordingly, the Point-1 is answered.

Point No.2:

12.

In the result, the appeal is partly allowed by enhancing the compensation from Rs.50,000/- to Rs.1,00,000/- and by reducing the rate of interest from 9% per annum to 7.5% per annum from the date of appeal till the date of realisation. Rest of the terms of the award holds good. No order as to costs.

13. Miscellaneous petitions, pending if any, in this appeal, shall stand closed.

_________________________ Dr. B. SIVA SANKARA RAO, J Date:01-05-2015 Knl HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO C.M.A.No.3920 OF 2004

Date:01.05.2015 knl [1] 2009 ACJ 1298 [2] 2013 ACJ 1403 [3] 2005 (6) SCC 236 [4] 2013 ACJ 1403