IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD Tuesday, the Eleventh day of August, Two Thousand And Nine PRESENT THE HON'BLE SRI JUSTICE R. KANTHA RAO MOTOR VEHICLE ACT (CMA) NO : 1261 of 2005 (Appeal under Section ____ against the order/decree in OP no. : 149 of 2003 dated 29/09/2004 on the file of the court of theXI Additional Chief Judge (FTC), Hyderabad) Between: 1 Managing Director APSRTC Musheerabad, Hyderabad. 2 Depot Manager APSRTC Midhani Depot, Hyderabad. ..... APPELLANT(S) AND S. Kirthi,, D/o. Late S. Aravind Kumar, Hindu, aged about 1 1/2 years, Occ: Minor, Rep. by her natural mother and Occ: Housewife, R/o. H.No. 18-1-337/C/17, Saibaba Nagar, Uppuguda, Hyderabad. .....RESPONDENT Counsel for the Appellant:MR.V.T.M.PRASAD Counsel for the Respondent No.: MR.N.ASHOK KUMAR IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD Tuesday, the Eleventh day of August, Two Thousand And Nine PRESENT THE HON'BLE SRI JUSTICE R. KANTHA RAO MOTOR VEHICLE ACT (CMA) NO : 2032 of 2005 (Appeal under Section ____ against the order/decree in OP no. : 145 of 2003 dated 29/09/2004 on the file of the court of theXI Additional Chief Judge (FTC), Hyderabad) Between: 1 Managing Director APSRTC Managing Director The APSRTC Musheerabad, Hyderabad. 2 Depot Manager APSRTC Depot Manager The APSRTC Midhani Depot, Hyderabad. ..... APPELLANT(S) AND 1 Smt. Swapna W/o. Late Aravind Kumar R/o. H.No. 18-1-337/C/17, Saibaba Nagar, Uppuguda, Hyderabad. 2 S. Kirthi D/o. Late Aravind Kumar, aged 1 1/2 years, R/o. H.No. 18-1-337/C/17, Saibaba Nagar, Uppuguda, Hyderabad. 3 Sri S.G. Manohar Rao S/o. Late Narasimha Rao R/o. H.No. 18-1-337/C/17, Saibaba Nagar, Uppuguda, Hyderabad. 4 Smt. S. Savitri W/o. Sri S.G. Manohar Rao R/o. H.No. 18-1-337/C/17, Saibaba Nagar, Uppuguda, Hyderabad. .....RESPONDENT(S) Counsel for the Appellant:MR.V.T.M.PRASAD Counsel for the Respondent No.: MR.N.ASHOK KUMAR IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD Tuesday, the Eleventh day of August, Two Thousand And Nine PRESENT THE HON'BLE SRI JUSTICE R. KANTHA RAO CROSS OBJECTIONS (S.R). NO. 32239 OF 2005 in MOTOR VEHICLE ACT (CMA) NO : 1261 of 2005 (Appeal under Section ____ against the order/decree in OP no. : 149 of 2003 dated 29/09/2004 on the file of the court of theXI Additional Chief Judge (FTC), Hyderabad) Between: S. Kirthi,, D/o. Late S. Aravind Kumar, Hindu, aged about 1 1/2 years, Occ: Minor, Rep. by her natural mother and Occ: Housewife, R/o. H.No. 18-1-337/C/17, Saibaba Nagar, Uppuguda, Hyderabad. … Cross objector Vs. 1 Managing Director APSRTC Musheerabad, Hyderabad. 2 Depot Manager APSRTC Midhani Depot, Hyderabad. ..... Respondents Counsel for the Appellant: MR. N.ASHOK KUMAR Counsel for the Respondent No.: MR. V.T.M.PRASAD The Court delivered the following JUDGEMENT: THE HON’BLE MR JUSTICE R. KANTHA RAO MACMA. NO. 1261 OF 2005 MACMA. NO. 2032 OF 2005 AND CROSS OBJECTIONS (SR). NO. 32239 OF 2005 COMMON JUDGMENT: These two appeals are directed against the common award passed by the XI Additional Chief Judge, City Civil Court, Hyderabad- cum-Motor Accident Claims Tribunal in O.P. Nos. 145 and 149 of 2003. 2. Challenge to the award by the APSRTC is as to its liability to pay compensation to the claimants and also the correctness and legality of the finding of the Tribunal with regard to the quantum of compensation and the manner of computing compensation under various heads. 3. The brief facts necessary for considering the appeals may be stated as follows: On 27.11.2002, the deceased Mr. Aravind Kumar, his wife Smt. Swapna and their daughter Kirthi (aged one and half years) were proceeding on motor cycle bearing registration No. AP 9-780 from Saibaba Nagar to Vidya Nagar to attend a marriage function and when they reached S.V. Towers Building Main Road, Santosh Nagar there was collision between the motor cycle and the RTC bus bearing No. AEZ 4622 belonging to the appellant corporation and in the said motor vehicle accident the deceased, his wife and daughter received injuries and were shifted to Apollo hospital, Hyderabad, where the deceased was pronounced dead. 4. The L.Rs of the deceased filed O.P. No. 145 of 2003, Smt. Swapna, wife of deceased filed O.P. No. 148 of 2003 seeking compensation for the injuries received in the accident and O.P. No. 145 of 2003 is filed by S. Keerthi, daughter of the deceased claiming compensation for the injuries received by her in the same accident. 5. The version of the claimants is that the deceased was carefully driving the motor cycle, but the APSRTC bus coming in the opposite direction dashed the motor cycle due to rash and negligent driving of its driver. Whereas the contention of the appellant/APSRTC that R.W-1, the driver of the RTC bus noticed the motor cycle driven by the deceased in a rash and negligent manner coming in the opposite direction at fast speed, he stopped the bus very close to the road divider on the left side. However, the deceased hit the motor cycle to the bus which is in a stationary position on its front side. Admittedly, there is a road divider on the road at the place of accident, but as one side of the road was being repaired, the traffic in both directions was allowed on the other part of the road on which both the vehicles involved in the accident were driven. It is also an admitted fact that there was traffic congestion on the road. 6. To substantiate the respective contentions, P.W-1, the wife of the deceased was examined on behalf of the claimants and Ex.A-1 certified copy of the F.I.R, Ex.A-2 copy of charge sheet were filed. The appellant Corporation examined its driver Mr. R. Vittalayya and no document was marked on behalf of the appellant. 7. The evidence of P.W-1 is to the effect that the accident was solely on account of rash and negligent driving of APSRTC bus and that there was no fault on the part of her husband driving the motor cycle. Whereas R.W-1 who was driving the APSRTC Bus at relevant time stated in his evidence that the bus was proceeding very slowly at a speed of 10 – 15 kms per hour and in the second gear, he found a motor cycle coming in the opposite direction at a high speed. The person driving the motor cycle (the deceased) was conversing with his wife sitting on the pillion. He observed the same and expecting the danger of inevitable accident, stopped the bus very close to the road divider on his left side. According to R.W-1, there is road margin of 30 feet on the right side and despite the same the motor cyclist who was conversing with his wife did not notice the stationary bus, came to the wrong side of the road and hit the right bumper portion of the bus and the motor cycle fell down along with the pillion rider and the child. 8. Adverting to the above stated evidence, the learned Tribunal below recorded a positive finding in para 21 of the award as follows: “When there is constriction of road and congestion of traffic, I am of the considered view, that it cannot be believed that Mr. Aravind Kumar mindlessly drove the motor cycle for a distance of 100 yards without even noticing the opposite coming vehicles and the stationed bus. It appears to me that both vehicles were in motion at the time when they came into contact with each other and it is possible that immediately after the accident, Mr. Vittalaiah took the bus to its extreme left of the constricted road. Therefor and more particularly in the absence of a specific plea in this regard, I am not able to hold that Mr. Aravind Kumr was all along conversing with his wife looking back, for a distance of 100 yards before he noticed the stationed bus and hit it from the front. Therefore, there appears to be negligence on the part of Mr. Vittalaiah.” 9. Having arrived at a positive conclusion that there was no fault on the part of the deceased in driving the motor cycle and the accident was on account of negligence on the part of R.W-1 Mr. Vittalayya who was the driver of the bus of the appellant Corporation, in para 24 of the award the Tribunal mentioned that even assuming that there was no negligence on the part of the driver of the respondent (the appellant Corporation), it should be seen that the petitioner need to be compensated by the respondent under Section 163-A of M.V. Act in taking recourse to the structured formula mentioned in Second schedule of M.V. Act. 10. The claim petitions seeking compensation on account of the death of the deceased in the motor vehicles Act were filed by the claimants under Section 166 of Motor Vehicles Act. The learned Tribunal as indicated herein above expressed two contradictory views on the crucial aspect of the liability of the appellant insurance company to pay compensation. The approach adopted by the Tribunal is wholly erroneous and contrary to the established principles of law governing the claims relating to compensation under Motor Vehicles Act. Under these circumstances, this Court is of the view that the award passed by the learned Tribunal which is based on conflicting findings of fact and law are unsustainable and are liable to be set aside. It would be appropriate on the part of this Court to remit the matter back to the Tribunal below for fresh disposal, otherwise the rights of either of the parties will be jeopardized. 11. Consequently, the common award dated 29.09.2004 passed by the Motor Accident Claims Tribunal-cum-XI Additional Chief Judge, City Civil Court, Hyderabad in O.P. Nos. 145 and 149 of 2003 is set aside. The matters are remitted back to the Tribunal for fresh disposal according to law after affording proper opportunity to both parties to adduce evidence and make their respective submissions. The Tribunal shall dispose of the O.Ps within four months from the date of receipt of copy of judgment in these appeals. 12. In the result, with the above directions, the appeals and cross- objections are disposed of without any order as to costs. ___________________ Date:11.08.2009. R. KANTHA RAO, J MRKR ...........REGISTRAR To 1.XI Additional Chief Judge (FTC), Hyderabad 2.2 CD copies Form-NIC-OGS/MACMA{NR}