IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD FRIDAY, THE ELEVENTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.4616 OF 2008, CRP.No.5372 OF 2008 & M.A.C.M.A.No.2031 OF 2009 M.A.C.M.A.No.4616 OF 2008 Between: The New India Assurance Company Limited, Rep. by its Divisional Manager, Srikakulam. …Appellant A n d Sariki Satyavathi and five others ..Respondents CRP.No.5372 OF 2008 New India Assurance Company Limited, Rep. by its Divisional Manager, Srikakulam. …Appellant A n d Peetha Gowrunaidu and five others ..Respondents A N D M.A.C.M.A.No.2031 OF 2009 New India Assurance Company Limited, Rep. by its Divisional Manager, Srikakulam. …Appellant A n d Pediredla Venkunaidu five others ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.4616 OF 2008, CRP.No.5372 OF 2008 & M.A.C.M.A.No.2031 OF 2009 COMMON JUDGMENT: M.A.C.M.A.No.4616 of 2008 and C.R.P.No.5372 of 2008 are directed against the common judgment dated 18.02.2008 in M.O.P.Nos.571 & 572 of 2004, on the file of the Chairman, Motor Accidents Claims Tribunal, (I- Additional District Judge), Vizianagaram, wherein the said claim applications filed by the 1st respondent herein, the claimants, were allowed-in-part, awarding compensation of Rs.61,250/- and Rs.7,000/- respectively while M.A.C.M.A.No.2031 of 2009 is filed against the judgment dated 09.01.2008 in O.P.No.320 of 2004, on the file of the I-Additional District Judge, Vizianagaram, wherein the said claim application filed by the 1st respondent herein was allowed-in-part, awarding compensation of Rs.1,90,400/-, for the injuries sustained by the respective claimants in a motor vehicle accident that occurred on 13.01.2004. 2. Heard both sides in the three cases. Perused the record. 3. According to the claimants, on that day, they were travelling in auto bearing No.AP 35 T 7339 and when the auto reached near K.L.Puram at about 10.30 A.M., an APSRTC bus bearing No.AP 10 Z 6238, driven in a rash and negligent manner by its driver, dashed against the auto, as a result of which the auto overturned and the claimants received multiple injuries. 4. APSRTC and insurer of the auto filed counters opposing the claim and denying their liability to pay the compensation. 5. O.P.Nos.571 and 572 of 2004 were clubbed for joint enquiry and common evidence was recorded. P.Ws.1 to 3 were examined and Exs.A-1 to A-8 were marked on behalf of the claimants. R.W.1, conductor of the bus, was examined and Ex.B-1 was marked on behalf of the respondents. Ex.X-1 case sheet was also marked. The evidence in O.P.No.320 of 2004 was recorded separately and P.Ws.1 and 2 were examined and Exs.A-1 to A-9 were marked on behalf of the claimant and conductor of the bus was examined as R.W.1 and Exs.B- 1 and B-2 were marked. 6. All the three matters were disposed of awarding compensation as stated above, after holding that the accident occurred on account of rash and negligent driving of the auto by its driver. Hence, the award was passed fastening joint liability on the insurer of the auto and owner of the auto while dismissing the claim application against the APSRTC. Aggrieved by the same, the insurer filed the present three appeals. The quantum of compensation awarded by the Tribunal in the three applications is not disputed seriously. 7. The only contention raised by the learned counsel for the appellant-insurer is that the Tribunal erred in fastening liability on the insurer and exonerating the APSRTC from its liability, even though the driver of the bus was prosecuted for the offence of rash and negligent driving. 8. The learned standing counsel for APSRTC would, however, seek to justify the award on the ground that it was only the auto, which on account of rash and negligent driving by its driver, came in the way of the bus and overturned on account of sudden break down of the axle. 9. As the applications are filed under Section 163 of the Motor Vehicles Act, there is no call upon the claimants to prove the rash and negligent driving on the part of the driver of the offending vehicle. However, in the context of apportionment, if any, of the liability, it is necessary to consider as to whether either of the drivers of the two vehicles is solely responsible or both of them equally contributed to the accident. 10. The testimony of P.W.1, the claimant, in O.P.No.571 of 2004 is to the effect that she cannot say how the accident took place and she does not know whether there was any breakage of the axle of the auto. P.W.2, the claimant in O.P.No.572 of 2004, however deposed that the auto was coming in the middle of the road and both vehicles collided with each other. The claimant in O.P.No.320 of 2004, who is also examined as P.W.1 in that case, deposed that when the auto reached K.L.Puram, an APSRTC bus came in the opposite direction and dashed against the auto and consequently the auto overturned. The Motor Vehicle Inspector’s report Ex.A-3 would no doubt show that the axle of the auto was found broken. There is, however, no evidence on record to show whether the axle is broken on its own or it got broken after it hit the bus. 11. It is not disputed that the F.I.R Ex.A-1 was registered against the driver of the bus and after due investigation, the police filed charge sheet Ex.A-4 against the driver of the bus. No doubt, the case ended in acquittal. The fact, however, remains that the police after investigation found that the driver of the bus was at fault and the accident occurred on account of his rash and negligent driving. The driver of the bus is not examined to explain as to how, in what manner and under what circumstances the accident occurred and why he could not avoid the same. The driver of the bus is a material witness for the APSRTC to prove its contention that it was only the auto that came and dashed against the bus, the driver having lost control due to sudden breaking of the axle. The APSRTC examined R.W.1, the conductor of the bus, who says that the driver applied the brakes and stopped the bus on the left side of the road margin. There is nothing in evidence to show that the bus was stopped on the left side of the road margin. In the absence of the evidence of the driver, the testimony of the conductor R.W.1 is not of any value. The non-examination of the driver of the bus and coupled with the fact that the driver was prosecuted for the offence of rash and negligent driving would go to show that the driver of the bus was also at fault. Inasmuch as the evidence on record goes to show that it was a case of head on collision between the two vehicles, the Tribunal ought to have held the drivers of both the vehicles equally responsible and apportioned the liability equally among them. The impugned order of the Tribunal totally exonerating the APSRTC from any liability and fastening joint liability on the insurer alone for the entire amount of compensation is, therefore, held unsustainable. 12. In the circumstances, it is held that both drivers of auto and APSRTC bus are equally liable to pay the amount of compensation awarded in all the three OPs in equal share with proportionate interest at 6% per annum from the dates of respective petitions. The impugned awards are modified accordingly. 13. In the result, the appeals are allowed to the extent stated above. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 11th November, 2011 Lrkm.