IN THE HIGH COURT OF JUDICATURE AT HYDERABD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH WEDNESDAY THE TWENTYSIXTH DAY OF NOVEMBER TWO THOUSAND AND FOURTEEN PRESENT HONOURABLE SRI JUSTICE B. CHANDRA KUMAR MACMA.NO. 2879 OF 2005, MACMA.NO. 2800 OF 2005 AND MACMA.NO. 1547 OF 2006 Between: MACMA.NO.2879 OF 2005 The New India Assurance Co.Ltd. Represented by its Divisional Manager, Kurnool. … Appellant/R-2 V/s.
M.Lakshmidevi & Ors. … Respondents/Petitioners Between: MACMA.No. 2800 OF 2005 The New India Assurance Co.Ltd. Represented by its Divisional Manager, Kurnool. … Appellant/R-2 V/s.
Boya Khasim Bee & Anr. … Respondents/Petitioners Between: MACMA.NO. 1547 OF 2006 The New India Assurance Co.Ltd. Represented by its Divisional Manager, Kurnool. … Appellant/R-2 V/s.
Hussain Bee & Ors. … Respondents/Petitioners Counsel for the Appellants : Sri T.Ramulu Counsel for the Respondents : Sri G.Ram Mohan Reddy Sri K.V. Raghuveer Sri K.Jamali The court made the following : [common judgment follows] HONOURABLE SRI JUSTICE B. CHANDRA KUMAR MACMA.NO. 2879 OF 2005, MACMA.NO. 2800 OF 2005 AND MACMA.NO. 1547 OF 2006 COMMON JUDGMENT :
Heard both sides.
2. The New India Assurance Company Limited, represented by its Divisional Manager, Kurnool filed these civil miscellaneous appeals, challenging the awards and decrees dated 09/5/2005, 29/3/2006 in MVOP.No. 630 of 2005, MVOP.No. 629 of 2003 on the file of V-Additional District Judge [FTC] cum Motor Accident Claims Tribunal, Kurnool and MVOP.No. 953 of 2002 on the file of Motor Accident Claims Tribunal-cum- Principal District Judge, Kurnool.
3. Since in all these Civil Miscellaneous Appeals, claim-petitions arise out of the same accident, they are being clubbed and disposed of by this common judgment. The parties are arrayed as they were arrayed before the Claims Tribunal for the purpose of convenience.
4. Brief facts of the case are as follows:
On 13/6/2002 the deceased in these three claim-petitions and some others came out of Lakshmi Pulverizes Powder Factory, Dhone and they were proceeding along the road, to go to their houses, by holding bicycles, There was heavy rainfall and the deceased were proceeding on the left side margin of the road. It is alleged that lorry bearing No. AP-13-T- 8992 coming from Kurnool side being driven by its driver in a rash and negligent manner dashed against the deceased and others and the driver of the lorry without stopping the lorry proceeded towards Gooty. The other contentions of the claimants is that the deceased were earning Rs.100/- each per day. The owner of vehicle remained ex-parte. The Insurance Company filed counter denying the material averments of the claimants.
It is main contention of the Insurance Company that the vehicle was not involved in the accident and that the driver had no driving licence. On the basis of rival contentions, the Claims Tribunal framed necessary issues for trial.
5. On behalf of claimants, PWs 1 to 4 were examined and Exs.A-1 to A-7 were marked. On behalf of respondents, RWs 1 and 2 were examined and Ex.B-1 copy of Insurance Policy was marked.
6. On appreciation of oral and documentary evidence, the Claims Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of driver of the lorry.
7. While computing the quantum of compensation, the Claims Tribunal has taken the income of the deceased at Rs.50/- per day and accordingly calculated the compensation.
8. The main submission of Sri T.Ramulu, learned standing counsel for the appellant-Insurance Company is that the lorry is not involved in the accident and vehicle number is not mentioned in the FIR and evidence of alleged eye-witnesses should not have been accepted by the Claims Tribunal.
9. PWs 3 and 4 claims to be the eye-witnesses. RW-1 is the driver of lorry. RW-2 is another driver of lorry bearing No.AP-21-T-0128. According to PW-3, he was working as hamali in the factory in which the deceased and others were working. On the date of accident, at about 08:30 p.m., he along with other workers including the deceased were returning to Dhone from their factory and while they were proceeding along the left side of the road, the lorry containing gas cylinders came from their behind being driven by its driver in a rash and negligent manner and dashed against the deceased and others. He also sustained injuries in the accident. It is also his case that one Shaik Aliya Hussain, Ahmed Afser who are working in the factory chased the lorry and noted its number. Of course, in the cross-examination he admitted that he did not mention the lorry number in his report to the police. The claimants have also examined PW-4. PW-4 also deposed in the same lines as deposed by PW-3. According to RW-1 driver of lorry, on the date of accident he was driving the lorry and he was proceeding from Bibinagar to Ananthapur and at about 08:00 p.m. he crossed Udumulapadu by passroad and he stopped the lorry at a distance of about 4 KMs from Udumulapadu. His further case is that at about 02:00 a.m. Police came and arrested him. His case is that his lorry is not involved in the accident. In the cross-examination, it is elicited that the Dhaba is at about 4 KMs from Dhone. The place of accident is near Dhone. According to RW-1, as there was heavy rainfall and wipers of the lorry were not functioning he could not proceed further. He denied the suggestion that he was cleaning blood stains on the tyres of his lorry. He further admitted that he did not give any report to the Police higher authority that he was falsely implicated in this case. RW-2 says that he was working as Commission Agent and arranging lorries to the customers on commission basis. He says that on the date of accident at about 07:30 p.m., the offending lorry came from Dhone side and stopped near his office adjacent to Uday Kiran Dhaba. It is also his case that the driver was sleeping and at about 02:00 a.m. police came and arrested the driver. Admittedly RW-2 is not the eye-witness to the accident.
10. The claimants case is that accident took place at about 08:30 p.m. In the cross-examination, he admits that at about 10:00 p.m. police enquired with him. He further deposed that he does not know whether lorry bearing No. AP-13-T-8992 is involved in the accident or not. So the evidence of PW-2 is not useful to the respondent. The evidence of RW-1 shows that he was arrested within a distance of 4 KMs from the place of accident. The evidence of PWs 3 and 4 is inspiring confidence and there cannot be any doubt to say that the offending lorry is involved in the accident. It has to be seen that the inquest over the dead bodies of the deceased were conducted on the next day i.e., 14/6/2002 and in the inquest reports vehicle number is mentioned and it is also mentioned that the lorry was carrying gas cylinders. All these circumstances point out the involvement of the vehicle in the accident. Merely because the vehicle number is not mentioned in the FIR that cannot be a ground to say that the vehicle is falsely implicated. All the surrounding facts and circumstances have to be taken into consideration. Even if there is some omission and commission by the Investigating Officers, those aspects have to be ignored while considering the oral and documentary evidence there should be proper assessment of the evidence. The circumstances that the lorry was found 4 KMs from the place of accident, driver was arrested immediately within hours from the time of accident and the fact that vehicle number is mentioned in the inquest reports reveal, that, the claimants case is true. Therefore, I do not see any reason to interfere with the findings of the Claims Tribunal.
11. Accordingly, these Civil Miscellaneous Appeals are dismissed.
No costs.
12. As a sequel, miscellaneous petitions if any, pending in these civil miscellaneous appeals shall stands closed.
JUSTICE B. CHANDRA KUMAR .
26/11/2014
I s L
HONOURABLE SRI JUSTICE B. CHANDRA KUMAR MACMA.NO. 2879 OF 2005, MACMA NO. 2800 OF 2005 AND MACMA NO. 1547 OF 2006 Circulation No.74 Date: 26/11/2014 Court Master : I s L Computer No. 43