THE HON’BLE SRI JUSTICE NOUSHAD ALI CIVIL MISCELLANEOUS APPEAL No.288 of 2001 Dated: 22nd January, 2010 Between: The A.P.S.R.T.C. …Appellant AND Potta Vasantha Kumari And others …Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI CIVIL MISCELLANEOUS APPEAL No.288 of 2001 JUDGMENT: This appeal is filed by respondents 2 and 3 in M.O.P.No.89 of 1998 on the file of Motor Accidents Claims Tribunal – cum – II Additional District Judge, Visakhapatnam, (‘the Tribunal’, for brevity) against the award dated 18.09.2000. Respondents 1 to 4 herein were the claimants, respondent No.5 herein was the driver in Andhra Pradesh State Road Transport Corporation (APSRTC) and respondent No.6 herein was the driver – cum – owner of auto bearing registration No.AP 31 T 5424. Respondent No.7 herein is the Insurance Company of the said auto. In this appeal, respondents 1 to 4 herein will be referred to as claimants and appellants herein will be referred to as respondents 2 and 3 and the Insurance Company as respondent No.7. The claimants filed petition claiming a compensation of Rs.3,90,000/- before the Tribunal on account of the death of one Potta Srinivasa Rao. Claimant No.1 is the wife of the deceased Potta Srinivasa Rao. Claimants 2 and 3 are his children and claimant No.4 is his mother. The brief facts of the case are that on 20.06.1997, the deceased Potta Srinivasa Rao was travelling in an auto bearing registration No. AP 31 T 5424 from Bheemunipatnam Bus Stop to Chittivalasa. When the said auto came near the Bank Colony, a bus bearing registration No.AP 10 Z 422 belonging to respondents 2 and 3 i.e. APSRTC, being driven by the first respondent – Raju in a rash and negligent manner, dashed against the auto. Potta Srinivasa Rao sustained injuries and succumbed on 22.06.1997. The claimants filed the petition stating that the deceased was working as Manager in M/s.Kadal Marine Food Products Pvt. Ltd., at Bheemunipatnam and was drawing a salary of Rs.3,000/- per month. On the other hand, respondents 2 and 3 resisted the claim insisting for strict proof of the accident and rash and negligent driving on the part of the driver. They also resisted the claim stating that there was a curve on the road at the place of accident and when the driver of the bus was negotiating the same, the auto came in the opposite direction being driven in a rash and negligent manner and dashed against a cyclist and later dashed on the right side of the bus resulting in injuries to the occupants of the auto. Respondents 2 and 3, therefore, contended that there was no negligence on the part of the driver of their bus and that the claim of Rs.3,90,000/- was excessive. The fourth respondent, who is the owner – cum – driver of the said auto, filed counter alleging rash and negligent driving on the part of the driver of the bus, contending that if compensation had to be paid, respondents 2 and 3 were also to be made liable to pay compensation. Seventh respondent herein – Insurance Company filed counter insisting on proof of rash and negligence on the part of the driver of the auto the income of the deceased at Rs.3,000/- per month. The Tribunal considered the issues whether the accident took place due to rash and negligence on the part of the driver; and whether respondents were liable to pay compensation and if so, to what amount and by which respondent. The Tribunal recorded a finding that there was contributory negligence on the part of the driver of the auto and also on the part of the driver of the bus and held that respondents 2 and 3 (appellants) on one side and respondents 4 and 7 (driver – cum – owner of auto and the Insurance Company respectively) on the other side are equally and jointly liable to pay compensation. Although the Tribunal held that the claimants were entitled to a sum of Rs.4,15,533/-, the award was restricted to Rs.3,90,000/- as claimed by the claimants, with interest at 12% per annum from the date of petition. Aggrieved by the same, respondents 2 and 3 i.e. APSRTC filed the present appeal. Heard Sri K.Madhava Reddy appearing for the appellants, Smt C.Jhansi Rani, learned advocate, representing Sri K.V.Simhadri for the respondents 1 to 4 and Sri V.Srinivas Rao, learned counsel for seventh respondent. Learned counsel appearing for respondents 2 and 3/appellants herein contended that there was no contributory negligence on the part of its driver and the liability should not have been attached to it. She also contended that in any event, the interest awarded by the Tribunal at 12% is excessive and the same is liable to be reduced. The points that arise for consideration in this appeal are (1) whether the driver of the bus belonging to the appellants herein was also responsible for the accident; and (2) whether the interest awarded by the Tribunal at 12% is liable to be reduced. The claimant examined herself as P.W.1 and got examined P.W.2 and P.W.3. The driver of APSRTC bus was examined as R.W.1 and the driver cum owner of the auto was examined as R.W.2. The claimants adduced documentary evidence – Exs.A.1 to A.6. P.W.1 was not an eyewitness to the incident. Ex.A.1 – FIR and Ex.A.2 – Postmortem Certificate were filed as proof of accident. P.W.2, in his evidence stated that he was following the auto and that he witnessed the accident. P.W.2 was also an auto driver and he was proceeding in the same direction and observed that the offending auto was being driven in a rash and negligent manner. R.W.2, who is the driver of the offending auto, in his evidence, stated that by the time he came near the Bank Colony at Bheemili, the bus of APSRTC being driven by its driver in a rash and negligent manner dashed against his auto as a result of which, he and the deceased sustained injuries. He also deposed that they were shifted to the hospital for treatment. To contradict the said evidence, R.W.1, who was the driver of the APSRTC bus, was examined. He deposed that the bus was proceeding from Bheemili to Anakapalli and he noticed the auto coming in the opposite direction in high speed and therefore, he took the bus to a side and despite the same, the auto dashed against the bus. He also deposed that he noticed the auto from a distance of 20 feet and the driver of the auto was talking to the occupants without observing the bus. In the cross- examination of R.W.2, he was suggested that he was talking to the passengers turning back while driving the auto. It was also elicited in the cross-examination of R.W.2 that the road was new to the bus driver and the bus was newly introduced on that road. From the evidence of P.W.2, R.W.1 and R.W.2, it is clear that both the vehicles were being driven in a rash and negligent manner and both the drivers contributed to the negligence. Although the appellants examined R.W.1 – driver of the APSRTC bus, they did not produce any other evidence to support their case that the driver of the offending auto was rash and negligent. In the circumstances, I am of the opinion that the finding of the Tribunal with regard to the contributory negligence by both the drivers of the vehicles is correct and the same is upheld. Learned counsel appearing for the appellants fairly and rightly did not dispute the quantum of compensation of Rs.3,90,000/- which was awarded by the Tribunal. His only contention is with regard to the rate of interest. The Tribunal awarded interest at the rate of 12% per annum from the date of petition till the date of realization. Learned counsel insists that the interest should be reduced to 6% per annum. In this case, the accident occurred on 20.06.1997. The Insurance Company, against which 50% of the compensation was attached, did not file any appeal. Taking into consideration the date of the accident and the fact that no appeal has been preferred by the Insurance Company questioning its liability, I am not inclined to reduce the rate of interest. Apart from this, although the Tribunal assessed the compensation at Rs.4,15,533/-, it awarded Rs.3,90,000/- only. I am therefore of the opinion that the rate of interest at 12% per annum is reasonable and the same is not liable to be reduced. In the result, the Civil Miscellaneous Appeal is dismissed confirming the award dated 18.09.2000 in M.O.P.No.89 of 1998 passed by Motor Accidents Claims Tribunal – cum – II Additional District Judge, Visakhapatnam. There shall be no order as to costs. ________________________ JUSTICE NOUSHAD ALI January 22, 2010 Bvv