THE HON’BLE SRI JUSTICE NOUSHAD ALI C.M.A.No.704 of 2003 Date : 03-09-2010 Between : National Insurance Company Limited, rep. by its Divisional Manager, Divisional Office, Anantapur. .. Appellant and Gangulagari Kondamma and Others .. Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI C.M.A. No.704 of 2003 JUDGMENT: This is an appeal filed by the Insurance Company against the Award in M.V.O.P. No.687 of 2001, dated 12-08-2002 on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Kadapa to the extent the order attached liability on it in a compensation of Rs.5,27,000/- granted in favour of the respondents 1 to 7 herein (claimants). Since the eighth respondent - owner of the offending vehicle remained ex parte, the Appellant - Insurance Company obtained permission under Section 170 of the Motor Vehicles Act, 1988 and contested the claim on merits. The substantial contention on which the Appellant - Insurance Company contested the claim in the O.P. and this Appeal as well, is that the accident was not caused by the jeep bearing registration No.AAA 9011 against which the claim was made; but on account of the deceased himself, who was driving the motor cycle, on account of his hitting a bullock cart. The other contention is that the salary certificate (Ex.A5), having not been proved by examining the concerned person, the income stated therein could not be the basis for computation of the compensation. The first claimant is the wife and the claimants 4, 5, 6 and 7 are the children of the deceased-G.Narasimhulu and claimants 2 and 3 are his parents. Briefly stating, the case of the claimants is that the deceased G.Narasimhulu was proceeding on a motor cycle bearing registration No.AP 04 3883 along with one, M.Prasad as a pillion rider ( P.W.2) from Proddatur to Ram Sai Nagar. After they passed Duvvuru Village, a jeep bearing registration No.AAA 9011 of which the eighth respondent herein was the owner, driven in a rash and negligent manner, hit the motor cycle from behind. Due to the impact, the deceased fell on the yoke of the double bullock cart, which was coming in the opposite direction, and the pillion rider fell down on the road. In the said incident, the deceased sustained grievous injuries and succumbed on the way to the hospital. According to the claimants, the deceased was working as a Waterman in Sree Kamisetty Subba Rao and Chennamma Degree College, Proddatur and was earning Rs.3,750/- as salary per month. Therefore, the claimants filed the O.P. and sought for a compensation of Rs.5,70,000/-. As stated above, the eighth respondent – owner of the vehicle remained ex parte and the Appellant – Insurance Company contested the claim denying the facts pleaded by the claimants and inter alia contending that the jeep against which the claim was made was not involved in the accident and that the claimants and the owner of the vehicle in collusion, brought the jeep into the picture for the purpose of getting compensation. It was also contended that the quantum claimed was excessive. On the basis of the aforesaid pleadings, the Tribunal formulated the issues as follows : 1. Whether the accident occurred due to rash and negligent driving of the jeep bearing No.AAA 9011 by its driver? 2. Whether the petitioners are entitled for compensation and if so, to what amount and from whom? 3. To what relief? In order to prove the claim, the father of the deceased G.Balanarasimhulu (claimant No.2) examined himself as P.W.1 and examined M.Prasad, the pillion rider, as P.W.2. They filed attested copy of F.I.R. in Crime No.16/11-3-01 of Duvvur Police Station (Ex.A1); attested copy of inquest report (Ex.A2); attested copy of Postmortem Certificate (Ex.A3); attested copy of Charge- Sheet (Ex.A4); and salary certificate (Ex.A5). Similarly, the Appellant - Insurance Company examined its Branch Manager M.N.Raghuveer as R.W.1 and also examined C.H.Ramulu, Head Constable, who conducted investigation in the offences, as R.W.2 and also filed Insurance Policy (Ex.B1); vartha paper (Ex.B2); attested copy of 162 statements of P.W.2 (Ex.B3); statement of G.Venkatesu (Ex.B4); attested copy of remand report (Ex.B5); C.C. of Inquest Report (Ex.B6); C.C. of deposition of M.V.I. report in C.C.No.103 of 2001 on the file of II A.D.M’s Court, Proddatur (Ex.B7); and Photostat copy of the R.C. (Ex.B8). On a consideration of the evidence adduced by both the parties, the Tribunal held as follows : “From the above said circumstances and also from the evidence of P.W.2 and R.W.2 coupled with Exs.A1, A2 and A4 documents it is established that the accident occurred due to the rash and negligent driving of R1’s jeep by its driver. Hence, issue No.1 is answered accordingly.” On the question of compensation, the Tribunal accepted the income at Rs.3,750/- as per Ex.A5-Salary Certificate and after deducting 1/3rd towards personal expenses of the deceased, computed the income at Rs.2,500/- per month and applying multiplier ‘16’ awarded compensation of Rs.4,80,000/- towards pecuniary loss. In addition, awarded Rs.10,000/- towards loss of consortium in favour of the first claimant and Rs.5,000/-each towards loss of love and affection in favour of claimants 4 to 7, Rs.15,000/- towards pain and suffering and Rs.2,000/- towards funeral expenses, in all Rs.5,27,000/-. Thus, this Award is under challenge in appeal by the Insurance Company on the two grounds stated supra. Heard Sri Byrapuneni Naresh appearing on behalf of the Appellant - Insurance Company and Sri Ratangapani Reddy for the claimants. Learned counsel for the Appellant strenuously contended that the jeep No.AAA 9011 was not at all involved in the accident. According to the learned counsel, the accident occurred when the deceased himself hit the bullock cart, which was coming in the opposite direction and not because of the involvement of the said jeep. Learned counsel referred to a news item published in the daily newspapers marked as Ex.B2. The learned counsel also has taken this court to the discrepancies in the evidence of P.W.2 and Ex.A1 (F.I.R.) and also Ex.A4 (Charge-Sheet). Learned counsel would also refer to the evidence of R.W.1 and R.W.2 to support the contention that the jeep was not at all involved. On the other hand, the learned counsel appearing for the claimants would submit that P.W.2 was an eyewitness and he himself was the author of Ex.A1-F.I.R. He would also refer to Ex.A4 - Charge-Sheet and contend that the investigation conducted by the Police into the crime established that the aforesaid jeep alone was involved in the accident. He would further contend that the evidence of P.W.2, if appreciated along with the deposition of R.W.2/Investigation Officer and the Charge- Sheet (Ex.A4), it would establish the involvement of the jeep. He would further urge that the award is not liable to be interfered in this appeal. In the light of the aforesaid rival contentions, the points for consideration are ; (i) Whether the accident was caused due to the involvement of the jeep bearing registration No. AAA 9011?; (ii) Whether the compensation awarded is excessive?; and (iii) To what relief? The material part of the evidence of P.W.2 (Marri Prasad) who was an eyewitness, is that he and the deceased were working in Sree Kamisetty Subba Rao and Chennamma Degree College, Proddatur. The deceased was working as Waterman in the said college and he died in the accident on 10-03-2001. On the date of accident he and the deceased were going in the motorcycle from Proddatur to Ram Sai Nagar and when they were half kilometer away from Duvvur village “the first respondent’s jeep came from behind in a rash and negligent manner with high speed and dashed against the motorcycle.” He further deposed that as a result of the said accident, the deceased received serious injuries and he was shifted to the Hospital in another jeep. He further deposed that he lodged a complaint to the Police. In his cross-examination he stated that there is a hospital at Duvvur, Mydukur but they went to Proddadur without touching Mydukur Village. He also stated that there is a Police Station at Duvvur Village and he did not give complaint at the Duvvur Police Station. He reiterated that the deceased was working in the Degree College. He also denied the suggestion that he stated before the Police that the deceased dashed the double bullock cart and received injuries. He denied the suggestion that he had not given the jeep number to the Police. To contradict the said evidence, the Appellant - Insurance Company examined its Branch Manager as R.W.1, but R.W.1 is not an eyewitness. The material part of his evidence is that a news item was published in Vaartha Paper (Ex.B2) stating that the jeep of the first respondent in the O.P. (8th respondent herein) did not cause any accident. The said Ex.B2 was marked subject to objection. He stated that P.W.2 did not mention the jeep number in his statement recorded under Section 162 Cr.P.C. (Ex.B3) and about the accident of the said jeep. Ex.B3 was marked subject to objection. The said witness tried to explain that there were other eyewitnesses viz., Goturu Venkatesu and that the owner of the vehicle sold away the said vehicle to one Mohammed Ghouse on 22-03-2001. He further stated that as per the investigation conducted by him, the offending jeep did not cause the accident at any time. In the cross-examination he admitted that Ex.B1 policy covers risk of the third party in respect of the jeep No.AAA 9011. He also admitted that he was not a reporter or Editor of Ex.B2 newspaper and that he is no way connected with Ex.B2. He admitted that as per Ex.B4 statement, the deceased died due to hitting of the jeep and as per Ex.B5 - Remand Report, the driver of the offending vehicle was remanded to judicial custody. He further admitted that as per the Inquest Report (Ex.B6) the deceased died due to the hitting of the jeep and the accident occurred on 10-03- 2001. He further admitted that charge-sheet was filed against the driver of the said jeep only and according to charge-sheet and that P.W.2 was an eyewitness to the accident, who was also the complainant in the F.I.R. He, however, denied the suggestion that the said jeep caused the accident and that the Insurance Company is liable to pay the compensation. R.W.2 is the Head Constable of Duvvur Police Station, who registered Ex.A1-F.I.R. The material part of his evidence is that the crime was registered as hit and run on the basis of the complaint given by P.W.2. He also recorded the statements under Section 162 Cr.P.C. He further stated that neither in the complaint nor in the Statement under Section 161 Cr.P.C. the number of jeep was mentioned, but it was mentioned that jeep caused the accident. He also recorded the statement under Section 161 Cr.P.C. of Goturu Venkatesu and that as per his statement he is not the eyewitness but as per the Inquest Report the said Venkatesu is an eyewitness. P.W.2 was not shown as an eyewitness in the Inquest Report. One, Shaik Mohammed Ghouse brought the deceased with the crime vehicle bearing No.AAA 9011 and as per the remand report the said Shaik Mohammed Ghouse was the owner of the jeep. In his cross- examination he stated that he examined Mahaboob Bee and Sivaramireddy and they were cited as eyewitnesses and the said persons furnished the jeep number and the jeep caused the accident. He also stated that after due investigation charge-sheet was filed against the driver of the jeep, but he did not mention the name of P.W.2 in the Inquest Report as he was not present at the time of the accident. He admitted that the S.I. filed the charge- sheet in the case. Ex.A4 is the charge-sheet in the matter. One, Yerraguntla Deva Das was shown as the accused who was the driver of jeep No.AAA 9011. It was stated in the charge-sheet that the accused was the driver of the said jeep and the vehicle was proceeding from Mydukur towards Nandyala, being driven in a rash and negligent manner, without blowing horn and unable to control the speed, dashed against the motorcycle from behind. It was stated therein that the deceased, who was driving the motorcycle was bumped and fell on the yoke of the double bullock cart, which was coming in the opposite direction on N.H.18. The accused, driver of the jeep No.AAA 9011, drove the jeep towards Nandyal side without stopping and failed to render at least first aid treatment to the injured and also failed to report the accident at the nearest Police Station and fled away. L.W.1 (P.W.2) had no injuries but the deceased sustained injuries on his head and found in semi- unconscious state. Later, L.W.1 (P.W.2) secured another jeep, shifted the deceased to the Government Hospital, Proddatur for treatment and on the way L.W.3 also boarded the jeep. The deceased died before reaching the Hospital, Proddatur. L.W.3 (Goturu Venkatesu) also witnessed the death of the deceased in the jeep along with L.W.1. L.W.7, who is the owner of the jeep No.AAA 9011, learnt about the death of the deceased caused by the accused-driver and the driver escaped from the scene of occurrence. Therefore, L.W.7 produced the accused-driver on 09- 04-2001 in the Duvvur Police Station along with the said jeep. It is true that P.W.2 did not specifically mention the registration number of the vehicle in his deposition, but he stated that the vehicle of the first respondent in the O.P. (eighth respondent herein) was involved in the accident. It is also true that in his complaint to the Police (Ex.A1-F.I.R.) also he did not mention the registration number. But on the basis of the said F.I.R., investigation was conducted by examining several persons, one among such persons was G.Venkatesu, who stated that the vehicle bearing registration No. AAA 9011 alone was involved in the accident. It is true that in the newspaper-Ex.B2 it was reported that there was an accident in which the deceased died on account of the motorcycle hitting the yoke of the bullock cart. But no reliance can be placed only on the newspaper without there being any such evidence corroborating the statement made therein. Admittedly, R.W.1 was not connected with the newspaper nor is he a reporter. R.W.2, who conducted the investigation, although stated that the registration number of the vehicle was not mentioned either in statements recorded under Section 161 Cr.P.C. or the statement of P.W.2 recorded under Section 162 Cr.P.C., he further stated that the jeep caused the accident. He also stated that the accused was brought along with the vehicle and the accused was remanded in connection with the said accident. Although there are some discrepancies, the undisputable fact is that the accident was not caused on account of the deceased hitting the yoke of the bullock cart, but the same was caused involving a jeep. The contention of the Appellant - Insurance Company is that the jeep was not involved in the accident, therefore, cannot be accepted. On a consideration of the aforesaid evidence cumulatively would reveal that it is the jeep bearing registration No.AAA 9011 alone was involved in the accident. It is the case of the Appellant - Insurance Company that the Tribunal could not have relied on Ex.A5 - Salary Certificate and computed the income at Rs.3,750/- per month on the ground that the author of the said certificate was not examined. I am unable to accept the contention. P.W.2 is a co-workman, who in his evidence stated that the deceased was working as a Waterman in Sree Kamisetty Subba Rao and Chennamma Degree College, Proddatur. P.W.1, who is the father of the deceased, also stated that his son was working in the said degree college and earning Rs.3,750/- per month. Ex.A5 was marked through him. In the cross-examination a suggestion was put to him that his son was working with the M.L.A. Varadarajulu Reddy earlier. He also denied the suggestion that the Ex.A5 - Salary Certificate was issued by the said M.L.A., but, actually the said certificate was issued by the Correspondent of the said college. Therefore, in my considered opinion, Ex.A5 cannot be discarded from consideration. As noted above, the tribunal computed the income based on the said certificate and applying multiplier ‘16’, awarded Rs.4,80,000/-and other amounts, which included loss of consortium and loss of love and affection and funeral chares. These amounts cannot be faulted. However, the Tribunal has awarded Rs.15,000/- towards pain and suffering. But it is a case of death which was almost instantaneous according to the evidence. Therefore, the claimants are not entitled for the award of compensation of pain and suffering and the said amount is liable to be deducted. Similarly, the Tribunal has awarded interest at 9% per annum, which in my opinion is excessive in the year 2001. Therefore, I consider it appropriate that the interest is liable to be reduced to 7.5% per annum. In the result, it is held that Rs.15,000/- granted towards pain and suffering should be deducted from out of the total compensation of Rs.5,27,000/- which comes to Rs.5,12,000/-, which alone is held to be just and reasonable compensation in the matter. The said sum shall carry interest at 7.5% as against 9% awarded by the Tribunal from the date of petition till the date of realization. The award in M.V.O.P. No.687 of 2001, dated 12-08- 2002 on the file of the Motor Accidents Claims Tribunal-cum- District Judge, Kadapa is modified accordingly and the appeal is allowed in part to the extent indicated above. There shall be no order as to costs. ________________ NOUSHAD ALI, J. 03rd September, 2010 skmr