IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF MARCH TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.3149 of 2003 Between: Pilladi Savitri and others .. Appellants AND P. Kajavalli and others .. Respondents JUDGMENT: This appeal is directed against the award, dated 26-03- 2003 in O.P. No.683 of 1999 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, West Godavari at Eluru. Pilladi Venkata Subrahmanyam was going on his cycle on 28-08-1999 at 11.30 A.M. and near Undrajavaram junction, lorry No.AP04 T1468, driven rashly and negligently in high speed, dashed against him. The lorry had run over Venkata Subrahmanyam who died on the spot and at the age of 40 years, he was claimed to be earning Rs.3,000/- per month as a carpenter, by his wife, the then minor son and daughter. The claimants sought for a compensation of Rs.4,00,000/- against the 1st respondent claimed to be the driver, the 2nd respondent, owner of the vehicle and the 3rd respondent, the insurer. Before the Tribunal, respondents 1 and 2 remained ex parte, while the insurer denied all the allegations of the claimants and stated that the details of insurance policy were not stated and the 1st respondent having a valid driving licence has also to be proved. The 3rd respondent also claimed that no information was received from the policyholder about the accident and the additional written statement of the 3rd respondent denied the 1st respondent having a driving licence on the date of the accident. It, therefore, claimed that it is not liable to pay any compensation. The Tribunal framed issues on the responsibility for the accident due to the rash and negligent driving of the lorry by the 1st respondent and the entitlement of the claimants to compensation including the quantum and the liability of the respondents. During the enquiry, the Tribunal examined P.Ws.1 to 4 and marked Exs.A.1 to A.7 and B.1 to B.5. The Tribunal rendered the impugned award noting that P.W.2, the brother-in-law of the deceased, claimed to have seen the driver of the lorry who also came to the hospital along with the dead body of the deceased and that P.W.2 claimed another person who was not the driver to have been charged before criminal Court. The Tribunal also referred to the evidence of P.W.3 claiming that he was the cleaner of the lorry, while the 1st respondent was the driver with a valid driving licence. It also noted that P.W.3 claimed that he was sitting in the cabin of the lorry at the time of the accident and that the 1st respondent took the injured to the hospital and surrendered before the police. P.W.3 was also noted to have claimed that he was falsely implicated in the criminal case and was acquitted on merits. The evidence of P.W.4 that by the time he went to the hospital to see the deceased, P.W.3 was not present, was also noted. The Tribunal noted that the insurer contended that as the 1st respondent had no valid driving licence, it was not liable to pay any compensation and observed that Ex.A.3 Motor Vehicles Inspector’s report and Ex.A.5 charge-sheet show P.W.3 as the driver, while Ex.B.4 judgment only showed that the prosecution failed to establish the guilt of P.W.3 but not that P.W.3 was not the driver. The Tribunal also found fault with P.W.3 not stating his story to the police in spite of knowing the registration of the case against him and hence, the Tribunal concluded that it was P.W.3 and not the 1st respondent that was the driver at the time of the accident. The Tribunal took the age of the deceased as 40 years and his income as Rs.1,500/- per month. In the absence of any documentary evidence for assessing the compensation and after deducting one-third towards the personal expenses of the deceased, the contribution of Rs.1,000/- per month was multiplied by 7 to arrive at the loss of dependency at Rs.84,000/-. The Tribunal also awarded Rs.10,000/- towards loss of consortium and Rs.2,000/- towards funeral expenses. The total compensation of Rs.96,000/- was directed to carry interest at 9 per cent per annum and proportionate costs and in view of P.W.3 not having a valid driving licence, respondents 1 and 3 were absolved of the liability, while fastening the liability to the owner, the 2nd respondent. The claimants preferred the present appeal contending that restriction of compensation to Rs.96,000/-, holding the 1st respondent to be not the driver of the vehicle at the relevant time and absolving the liability of the insurer/3rd respondent are fallacious and hence, the impugned award be reversed. Subsequent to filing of the appeal, the 2nd appellant was declared as major discharging the 1st appellant as guardian as per the orders on M.A.C.M.A.M.P. No.6732 of 2008. Though the 3rd appellant also would have become a major by mere efflux of time by now, no steps were taken to declare her as a major and to discharge her guardian. Sri P.V. Sanjeeva Rao, learned counsel for the appellant, Sri B. Chinnapa Reddy, learned counsel for the 2nd respondent and Smt. Pushpinder Kaur, learned standing counsel for the 3rd respondent-insurer are heard. The owner of the vehicle or the insurer did not file any cross-objections or cross-appeal against the award. The ownership of the vehicle with the 2nd respondent and the existence of valid and subsisting insurance with the 3rd respondent are not in dispute and the happening of the accident involving the subject lorry and the death of P.Venkata Subrahmanyam in the accident are also not in question. The lorry being driven rashly and negligently at the relevant time, due to which the accident occurred is also not in doubt, the main controversy being about the person who was actually driving the lorry at the relevant time. The earliest version in the first information report Ex.A.1 specified the 1st respondent herein to be the offending driver and the first information report was registered on the death intimation issued by the medical officer to the police. The medical officer specifying the identity of the driver would have been on independent information by the persons accompanying the dead body and the public servant without any motives or interest could not have fabricated any such mention. P.W.2, who gave his statement to the police at the time of registration of the crime, was an eye witness and he specified at that time itself that he and the lorry driver took the injured/dead to the hospital together, where Subrahmanyam was declared dead. However, when it came to the Motor Vehicles Inspector’s report Ex.A.3, dated 01-09-1999, four days later, the identity of the driver had undergone a change to P.W.3. The Motor Vehicles Inspector obviously could not have had any personal knowledge and in the charge-sheet Ex.A.5, the investigating officer claimed that the 1st respondent herein was the second driver of the lorry, while P.W.3 was actually driving the vehicle at the time of the accident. The presence of the 1st respondent herein in the lorry and his being engaged as the driver of the lorry were, therefore, even the findings of the police, the question being whether P.W.3 was the first driver as stated by the police or only a cleaner as claimed by P.W.3 himself. When the 1st respondent accompanied P.W.2 to the hospital, the conclusion of the police that the duty medical officer mentioned the name of the 1st respondent in the medico-legal communication/death intimation merely because he was also one of the lorry drivers, does not appear natural, when the 1st respondent herein, who accompanied the dead body, should and would have intimated the medical officer as to who was actually driving the vehicle at the relevant time. While the registration of the first information report against the 1st respondent herein is admitted, among the witnesses cited by the police in the charge-sheet, it was P.W.2 alone that was an eye witness. The calendar and judgment of the criminal case against P.W.3/Ex.B.4 shows that P.W.2 was the only eye witness examined by the police during investigation and he positively stated that P.W.3 was not the driver of the crime vehicle. The other circumstantial witness also made no reference to the presence of P.W.3 at any time during the course of events and the criminal Court also noted that P.W.3 was not present at the scene of offence on the date of the accident and that the police did not record the alleged confession of P.W.3. The 1st respondent being shown as the accused in the first information report was also noted and the miserable failure of the prosecution to establish the guilt of P.W.3 led to his acquittal. It was not a case of extending any benefit of any reasonable doubt, but the total absence of any evidence implicating, even prima facie, P.W.3. P.Ws.2 and 3 in their evidence before the Tribunal were positive about the 1st respondent being the driver of the lorry at the relevant time and even assuming that the evidence of P.W.3 is tainted with interestedness and is self-serving, there is no reason to attribute any reason or motive to P.W.2 to depose falsely. Any default on the part of P.W.3 in not protesting against his prosecution at the earliest point of time is no proof of his being involved in the accident and none of the parties had taken steps to have the version of the 1st respondent himself recorded as a witness before the Tribunal, while the 1st respondent, the driver, and the 2nd respondent, the owner, conveniently remained ex parte without producing any evidence. Even the insurer did not produce any evidence and it merely tried to rely on the inferences and presumptions the Tribunal could draw from the oral and documentary evidence on record. The mention of the 1st respondent as driver in the first information report, the conclusions of the criminal Court in Ex.B.4 judgment and the positive evidence of P.Ws.2 and 3 tilt the preponderance of probabilities in favour of concluding the 1st respondent to be the driver of the lorry at the relevant time, the civil cause having to be determined on the balance of broad human probabilities and not on any proof beyond reasonable doubt. The conclusions of the Tribunal to the contrary do not appear susceptible to acceptance in the absence of any material at all on record to prove that P.W.3 was driver of the lorry at the time of the accident, more so in the light of the conclusions of the criminal Court which have become final. So far as the 1st respondent is concerned, Ex.A.6 photostat copy of driving licence of the 1st respondent is on record and the validity or subsistence of the original driving licence are not in question by any contrary evidence. If the 1st respondent had a valid driving licence and his rash and negligent driving of the lorry resulted in the accident and if the 1st respondent was the driver of the lorry under the 2nd respondent even according to the police, the vicarious liability of the owner and insurer of the lorry to compensate the victims of the tortious conduct of the 1st respondent need not be in doubt. The learned counsel for the appellant incidentally referred to Oriental Insurance Co. Ltd., Proddatur v. Bhoomi Reddy Peddi Reddy Lakshmi Devi and others[1], wherein the evidentiary value of the first information report or charge-sheet was dealt with and it was concluded that they are mere relevant pieces of evidence, which by themselves cannot establish either the factum of the accident or the manner of the accident. The Division Bench had, in fact, given more credence in the said case to the evidence of an eye witness in deciding an issue about the manner of the accident. Adoption of a similar approach herein leads to the conclusion already reached above. Coming to the quantum of compensation, there was no documentary evidence for the income of the deceased at the relevant time as a carpenter, while his age as 40 years was not disputed even by the appellants. In the absence of any evidence except the oral claims of the wife, the Tribunal assessing his monthly income at Rs.1,500/- cannot be straight away faulted, when it is undoubtedly more than what the Second Schedule to the Motor Vehicles Act, 1988 assesses in case of non-earning persons and when the same is not shown to be in any way deviant from the minimum wages payable at the relevant time for such an occupation. Deducting one-third of such income towards personal expenses is in tune with the accepted conventions in this regard and also Sarala Verma v. Delhi Transport Corporation[2]. However, the multiplier applicable for a person of the age of 40 years is 15 according to Sarala Verma v. Delhi Transport Corporation (2 supra) and if so, the loss of dependency should, therefore, come to Rs.1,80,000/-. As per Sarala Verma v. Delhi Transport Corporation (2 supra), the dependents should also be entitled to Rs.5,000/- each towards loss of estate and funeral expenses and Rs.10,000/- towards loss of consortium. The total compensation to be awarded should, therefore, come to Rs.2,00,000/-, while the rate of interest at 9 per cent per annum and proportionate costs can be maintained. Accordingly, all the three respondents to the claim have to be made liable for the just and adequate compensation to which the claimants are entitled and the impugned award has to be interfered with accordingly. In the result, the award, dated 26-03-2003 in O.P. No.683 of 1999 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, West Godavari at Eluru is set aside against respondents 1 and 3 and is modified in respect of the 2nd respondent and the said O.P. No.683 of 1999 is ordered by granting a compensation of Rs.2,00,000/- (Rupees two lakhs only) with interest at 9 per cent per annum from the date of the petition till the date of payment or deposit and proportionate costs against respondents 1 to 3 jointly and severally and out of the compensation so awarded, the 1st claimant shall be entitled to Rs.10,000/- towards loss of consortium and out of the rest of the compensation, the 1st claimant shall be entitled to Rs.90,000/- and claimants 2 and 3 shall be entitled to Rs.50,000/- each with proportionate interest and costs and no directions need be given at this distance of time concerning disbursement of the compensation and the appeal is allowed accordingly in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 01-03-2011 Svv [1] 2011(1) ALT 686 (DB) [2] 2009 ACJ 1298