Introductory:

1. This appeal is directed against the judgment and decree dated 19.10.2011 passed in M.V.O.P.No.29 of 2008 by the Motor Accidents Claims Tribunal-cum- II Additional District Judge, Amalapuram (for short “the learned MACT”). The petitioners before the learned MACT are the appellants herein.

2. Feeling aggrieved and dissatisfied with the dismissal of the claim petition filed under Section 166 of the Motor Vehicles Act, wherein compensation of Rs.4,00,000/- was claimed for the death of Palli Bangarayya (hereinafter referred to as “the deceased”), the present appeal is filed.

3. Respondent Nos.1 to 3 herein are the driver, owner and insurer of the tractor bearing Registration No.AP 5P 5228 and Respondent Nos.4 and 5 herein are the insurer of trailer bearing No.AP 5X 7352 and the registered owner of tractor respectively.

Case of the Claimants:

4(i). On 10.06.2007 at about 10.00 a.m., the deceased Palli Bangarayya, a coconut plucker, after completion of coconut plucking work at Chinnagullapalem, was returning to Kothapeta on his bicycle. When he reached near Old Ramalayam Centre, Kothapeta, East Godavari District, the tractor coming from the opposite direction in a rash and negligent manner dashed and ran over him, as a result of which the deceased died on the spot.

               (ii). As on the date of accident, the deceased was aged 38 years, hale and healthy, working as a coconut plucker and earning Rs.200/- per day. On account of his untimely death, the petitioners lost their sole breadwinner and suffered irreparable loss.

5. During the pendency of the petition, respondent No.2 died and the petitioners filed an application under Order I Rule 10 CPC to implead respondent No.5 as owner of tractor, which was allowed.

6. Respondent Nos.1 and 5 remained ex parte before the learned MACT.

Case of the Respondent–Insurance Company:

7(i). The age, occupation, income of the deceased and the manner of accident shall be proved.

               (ii). Unless the petitioners/appellants establish ownership and insurance coverage in respect of the vehicle i.e. tractor-cum-trailer, the insurer is not liable.

               (iii). There was no negligence on the part of the driver of the vehicle.

8. On the strength of pleadings, the following Issues were settled for trial by the learned MACT:

               (1). Whether the accident occurred due to rash and negligent driving of the vehicle i.e., Tractor-cum-Trailer bearing No.AP 5P 5228 and AP 5X 7352 by its driver i.e., 1st respondent?

               (2). Whether the petitioners are entitled to any compensation, if so, to what amount and against whom?

               (3). To what relief?

Evidence before the learned MACT:

9(i). The 1st petitioner/ one Palli Durga, was examined as P.W.1, One Palingi Chittibabu, an eye witness, was examined as P.W.2 and one Palli Abbulu, Coconut plucker and third party examined as P.W.3.

               (ii). The petitioners relied on Ex.A1-FIR, Ex.A2-Inquest Report, Ex.A3- Postmortem Report and Ex.A4- Charge Sheet.

               (iii). On behalf of the respondents, Ex.B1 and Ex.B2-copies of insurance policies were marked.

Findings of the learned MACT:

10(i). The accident occurred due to the rash and negligent driving of the vehicle and that the deceased died on the spot.

               (ii). The policy under Ex.B1 was in force on the date of accident.

               (iii). Petitioners failed to establish that respondent No.5 was the owner/insured of the tractor on the date of accident, as no original registration certificate was produced.

               (iv). In the absence of proof of ownership in favour of the person impleaded, the insurer cannot be fastened with any liability.

Arguments in the Appeal:

For the Appellants:

11(i). The learned MACT failed to consider the statutory effect of Section 157 of the Motor Vehicles Act, which provides that on transfer of a vehicle, the insurance policy is deemed to be transferred.

               (ii). The learned MACT erred in holding that non-production of the original registration certificate is fatal.

               (iii). The learned MACT ought to have held that the insurer is liable.

For the Respondents:

12(i). The petitioners failed to prove ownership and insurance in favour of the person impleaded.

               (ii). The dismissal of the claim is legal and proper.

               (iii). There are no grounds to interfere.

13. Heard both sides extensively. Perused the record. Thoughtful consideration is given to the arguments advanced by both sides.

14. The points that arise for consideration in this appeal are:

               1) Whether the pleaded road traffic accident, involvement of the vehicle i.e. tractor-cum-trailer bearing Nos. AP 5P 5228 and AP 5X 7352, negligence of its driver, ownership and insurance coverage on the date of accident are shown/proved by the claimants with legal evidence?

               2) Whether dismissal of the claim by the learned MACT under the impugned Judgment is sustainable in law and on facts or whether any interference is necessary?

               3) Whether the claimants are entitled to compensation? If so, to what quantum and what is the liability of the respondents?

               4) What is the result of the appeal?

Point No.1:

Mode of proving the accident, involvement of the vehicle, negligence, ownership etc.

15. In this context, it is also relevant to note that the appreciation of evidence in answering the question of fact as to negligence in a motor accident claim can be based on the official records adopting the theory of probability with a holistic approach. This approach stands fortified with the aid of provisions of Motor Vehicles Act and the Rules and also the observations of the Hon‟ble Apex Court, as follows:

Statutory and Precedential Guidance:

Statutory Guidance:

16(i). It is relevant to note that the A.P. Motor Vehicles Rules, 1989 are applicable in deciding the cases by Motor Accidents Claims Tribunals and they are made in exercise of powers conferred under Section 176 of the Motor Vehicles Act which reads as follows:

               176. Power of State Government to make rules.—A State Government may make rules for the purpose of carrying into effect the provisions of sections 165 to 174, and in particular, such rules may provide for all or any of the following matters, namely:—

               (a) the form of application for claims for compensation and the particulars it may contain, and the fees, if any, to be paid in respect of such applications;

               (b) the procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;

               (c) the powers vested in a Civil Court which may be exercised by a Claims Tribunal;

               (d) the form and the manner in which and the fees (if any) on payment of which an appeal may be preferred against an award of a Claims Tribunal; and

               (e) any other matter which is to be, or may be, prescribed.

               (ii). Chapter „11‟ of the A.P. Motor Vehicles Rules, 1989 commencing from Rule 455 to Rule 476A deals with the powers of the Tribunal and all other allied aspects like form of application, registration, notice to parties, appearance and examination of parties, local inspection, summary examination of parties, method of recording evidence, adjournments, framing and determination of issues, judgments and enforcements of awards, Court fee relating to claim petitions applicability of Civil Procedure Code and the application for claim basis to award the claim by the claims tribunal. Rule 476 of the A.P. Motor Vehicles Rules, 1989 reads as follows:

               Rule 476: Application for claim :-

               (7) Basis to award the claim :- The Claims Tribunal shall proceed to award the claim on the basis of;-

               (i) Registration Certificate of the Motor Vehicle involved in the accident;

               (ii) Insurance Certificate or Policy relating to the insurance of the Motor Vehicle against the Third party risk;

               (iii) Copy of First Information Report;

               (iv) Post-mortem certificate or certificate of inquiry from the Medical Officer; and

               (v) The nature of the treatment given by the Medical Officer who has examined the victim.

               (7A) Specification of amount of compensation awarded by the Tribunal to each victim:- Where compensation is awarded to two or more persons, the Claims Tribunal shall also specify the amount payable to each of them.

17. As per Rule 476 of the A.P. Motor Vehicles Rules, 1989, the crime record can be the basis. The official acts done are presumed to be proper until a contrary is proved particularly when some statutory recognition is given to such official records.

18. It is relevant to note that in view of the summary nature and mode of enquiry contemplated under Motor Vehicles Act and social welfare nature of legislation the Tribunal shall have holistic view with reference to facts and circumstances of each case. It is sufficient if there is probability. The principle ofstandard of proof, beyond reasonable doubt cannot be applied while considering a claim seeking compensation for the death or the injury on account of road accident. The touch stone of the case, the claimants shall have to establish is preponderance of probability only. The legal position to this extent is settled and consistent.

Precedential Guidance:

19. The Hon‟ble Apex Court in Bimla Devi and others Vs. Himachal Road Transport Corporation (2009 (13) SCC 530), in para 15 observed as follows:

               “15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties..”

Evidence:

20. Ex.A1 is the FIR indicating involvement of the vehicle, i.e. tractor-cum- trailer bearing Nos.AP 5P 5228 and AP 5X 7352 (hereinafter referred to as “the offending vehicle”). The suspect is shown as the driver of the vehicle. It is relevant to note that the claim made by the legal representatives of the deceased.

21. As per Ex.A1-FIR, while deceased was proceeding on a bicycle, the offending vehicle driven by its driver came in a negligent manner, dashed the deceased and ran over him, causing instantaneous death. The driver escaped. Inquest report-Ex.A2 corroborates the same.

22. Ex.A4-charge sheet is laid against the driver of the offending vehicle who is arrayed as Respondent No.1 before the learned MACT and herein. The charge sheet reflects that the Motor Vehicle Inspector inspected the vehicle. As per Ex.A4, the driver of the offending vehicle is responsible for the accident.

23. P.W.2, an eye witness to the accident, stated about the negligence of the driver of the tractor with vehicle. Nothing important is elicited in his cross- examination to disbelieve the accident, negligence or involvement of the offending vehicle.

24. P.W.3 is also stated that he witnessed the accident and spoke about the negligence of the driver.

25. It is relevant to note that no witnesses are examined on behalf of the respondents, but Ex.B1 and Ex.B2 copies of polices are marked. The learned MACT observed that there was no negligence on the part of the deceased and that the evidence of P.W.1 and P.W.2 are cogent and shows that the deceased died due to accident and answered issue No.1 by mentioning that it is answered accordingly.

26. The learned MACT ought to have given a better and clearer finding. Merely referring to the evidence and mentioning that the issue is answered accordingly is an evasive exercise which shall be discouraged. When the issue is clearly framed as to whether the accident occurred due to rash and negligent driving, not answering it clearly and leaving it to the reader to infer from the expression that “issue is answered accordingly” is a lamentable exercise on the part of the trial Courts.

27. In the light of the statutory and precedential guidance and even from the evidence available on record, the trial Court ought to have clearly held that the negligence of driver of tractor is shown as the cause for the accident and that the deceased died due to the pleaded accident.

28. In view of the above discussion, point No.1 is answered concluding that from the evidence it is clear that the pleaded accident, negligence of the driver of the offending vehicle and death of the deceased are proved with legal evidence necessary for answering the claim laid in terms of the Motor Vehicles Act which contemplates summary enquiry.

Point No.2:

29. Ex.B1 Policy is standing in the name of N. Jagapathi Raju in respect of the tractor, describing him as the insured. Said N. Jagapathi Raju is respondent No.2 herein and before the learned MACT. Period of insurance from 06.02.2007 to 05.02.2008 and the date of accident is 10.06.2007. Therefore, Ex.B1 policy is covering the date of accident.

30. Ex.B2-policy is also standing in the name of Namburi Jagapathi Raju / respondent No.2 herein in respect of trailer covering the period 11.01.2007 to 10.01.2008. The accident date is within the coverage period of policy.

31. Ex.B1-policy is issued by respondent No.3 and Ex.B2 policy is issued by respondent No.4.

32. In the counter of respondent No.3, ownership of respondent No.2 in respect of the offending vehicle is not disputed. Even respondent No.4, in its counter, did not dispute the ownership of Namburi Jagapathi Raju / respondent No.2 herein and the pleading is only a denial of the involvement of the offending vehicle and putting the petitioners to strict proof of all allegations.

33. Respondent No.5 was impleaded consequent upon the death of respondent No.2.

34. While addressing the liability of the Insurance Companies and the owner of the offending vehicle, the learned MACT, clearly observed that the policy was in force covering the date of accident, respondent No.2 is the registered owner but the registration certificate in the name respondent No.5 indicating transfer of the vehicle from respondent Nos.2 to 5 is not produced and dismissed the claim in toto. The learned MACT failed in addressing the issue with proper sensitivity and the required empathetic concern. Poor victims of the accident, who are dependents of the deceased, are driven to the High Court.

35. It is settled law that policy runs with the vehicle but not with the owner. Transfer of ownership will not absolve the insurance company from its liability The Hon‟ble Apex Court in G. Govindan vs. New India Assurance Co. Ltd. and others((1999) 3 SCC 754) vide para No.8 and the Andhra Pradesh High Court in Sana Vijaya Rajaiah vs. Kannaboina Shankar Veeramallu (2006 Supreme(AP) 1126; 2008 ACJ 1055) vide para No.7 have so held.

36. It is relevant to note that Respondent No.5 remained ex parte. It is not the case of the Insurance Companies that there was no transfer of ownership. Careful examination of the matter on hand clearly indicates non-application of mind by the learned Presiding Officer of the learned MACT. With the evidence on record unhesitatingly, this Court concludes that the findings as to exoneration of the insurance companies from liability are not acceptable. At the time of accident, both the trailer and tractor were intact and they were moving, as per Ex.A1. Cross examination of respondent No.4 on P.W.3 shows that the front portion of the tractor contacted the deceased but not the trailer portion, which suggests that the trailer being intact with the tractor is not in dispute. Therefore, both the tractor and trailer were in use at the time of accident and both were insured with the respective insurance companies and policies vide Ex. B1 and Ex.B2 in respect of the tractor and trailer respectively were in force as on the date of accident.

37. Therefore, both respondent Nos.3 and 4- the insurance companies are liable to pay compensation and the findings of the learned MACT contra are liable to be set aside. Point framed is answered concluding that the insurance companies are liable to pay compensation and the dismissal of the claim under the impugned Judgment is liable to be set aside.

Point No.3:

Precedential guidance:

38(i). For having uniformity of practice and consistency in awarding just compensation, the Hon‟ble Apex Court provided guidelines as to adoption of multiplier depending on the age of the deceased in Sarla Verma (Smt.) and Ors. Vs. Delhi Transport Corporation and Anr. (2009 (6) SCC 121) and also the method of calculation as to ascertaining multiplicand, applying multiplier and calculating the compensation vide paragraph Nos.18 and 19 of the Judgment.

               (ii). Further the Hon‟ble Apex Court in National Insurance Company Ltd. v.Pranay Sethi and Others (2017(16) SCC 680) case directed for adding future prospects at 50% in respect of permanent employment where the deceased is below 40 years, 30% where deceased is between 40-50 years and 15% where the deceased isbetween 50-60 years. Further, in respect of self employed etc., recommended addition of income at 40% for the deceased below 40 years, at 25% where the deceased is between 40-50 years and at 10% where the deceased is between 50-60 years. Further, awarding compensation under conventional heads like loss of estate, loss of consortium and funeral expenditure at Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively is also provided in the same Judgment.

               (iii). Further in Magma General Insurance Company Ltd. v. Nanu Ram and Others ((2018) 18 SCC 130), the Hon‟ble Apex Court observed that the compensation under the head of loss of consortium can be awarded not only to the spouse but also to the children and parents of the deceased under the heads of parental consortium and filial consortium.

Just Compensation:

39. In Rajesh and others vs. Rajbir Singh and others ((2013) 9 SCC 54), the Hon‟ble Supreme Court in para Nos.10 and 11 made relevant observations, they are as follows:

               10. Whether the Tribunal is competent to award compensation in excess of what is claimed in the application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At para 10 of Nagappa case [Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 : 2003 SCC (Cri) 523 : AIR 2003 SC 674] , it was held as follows: (SCC p. 280)

               “10. Thereafter, Section 168 empowers the Claims Tribunal to „make an award determining the amount of compensation which appears to it to be just‟. Therefore, the only requirement for determining the compensation is that it must be „just‟. There is no other limitation or restriction on its power for awarding just compensation.”

               The principle was followed in the later decisions in Oriental Insurance Co. Ltd. v. Mohd. Nasir [(2009) 6 SCC 280 : (2009) 2 SCC (Civ) 877 : (2009) 2 SCC (Cri) 987] and in Ningamma v. United India Insurance Co. Ltd. [(2009) 13 SCC 710 : (2009) 5 SCC (Civ) 241 : (2010) 1 SCC (Cri)1213]

               11. Underlying principle discussed in the above decisions is with regard to the duty of the court to fix a just compensation and it has now become settled law that the court should not succumb to niceties or technicalities, in such matters. Attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim.

40. The relationship of the claimants with the deceased is not in dispute. Deceased is said to be a coconut vendor and the same is confirmed by P.W.2 and P.W.3, who are eye witnesses and also involved in the same trade. Earning was pleaded at Rs.200/- per day. Upon considering the socio economic circumstances of the year 2007, the age of the deceased etc., this Court finds that the income of the deceased can be safely taken at Rs.4,000/- per month and up to 30% can be added towards future prospects considering his age, whereby the income comes to Rs.5,200/- per month and Rs.62,400/- per annum.

41. Upon considering the number of dependents of the deceased, 1/4th of the income of the deceased is found fit to be deducted towards personal expenditure. Then his contribution to the family shall be Rs.46,800/-, which can be considered as multiplicand. For the age of 38 years, the multiplier applicable is „15‟. Upon application of the same, the entitlement of the claimants under the head of loss of dependency comes to Rs.7,02,000/-.

42. Further, the claimants are entitled for compensation under the conventional heads i.e. Rs.40,000/- each to claimant Nos.1 to 5 towards loss of consortium, Rs.15,000/- towards funeral expenditure and Rs.15,000/- towards loss of estate.

43. In view of the reasons and evidence referred above, the entitlement of the claimants for reasonable compensation is found as follows:

               

44. For the reasons aforesaid and in view of the discussion made above, in the context of the case, Point No.3 framed is answered concluding that the claimants are entitled for compensation of Rs.9,32,000/- with interest at the rate of 6% per annum from the date of petition till the date of realization. Granting of more compensation than what claimed, if the claimants are otherwise entitled:-

45. The legal position with regard to awarding more compensation than what claimed has been considered and settled by the Hon‟ble Supreme Court holding that there is no bar for awarding more compensation than what is claimed. For the said preposition of law, this Court finds it proper to refer the following observations of the Hon‟ble Supreme Court made in:

               (1) Nagappa Vs. Gurudayal Singh and Others ((2003) 2 SCC 274), at para 21 of the judgment, that –

               “..there is no restriction that the Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award “just” compensation, which is reasonable on the basis of evidence produced on record.”

               (2) Kajal Vs. Jagadish Chand and Ors. (2020 (04) SCC 413) at para 33 of the judgment, as follows:-

               “33. We are aware that the amount awarded by us is more than the amount claimed. However, it is well settled law that in the motor accident claim petitions, the Court must award the just compensation and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor.”

               (3) Ramla and Others Vs. National Insurance Company Limited and Others ((2019) 2 SCC 192) at para 5 of the judgment, as follows:-

               “5. Though the claimants had claimed a total compensation of Rs 25,00,000 in their claim petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to is higher than the same as mentioned supra. There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 is to award “just compensation”. The Motor Vehicles Act is a beneficial and welfare legislation. A “just compensation” is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time-barred. Further, there is no need for a new cause of action to claim an enhanced amount. The courts are duty-bound to award just compensation.”

Point No.4:

46. In the result, the appeal is allowed as follows:

               (i) The judgment and decree dated 19.10.2011 passed by the learned MACT is hereby set aside.

               (ii) Claimants are entitled for compensation of Rs.9,32,000/- with interest at the rate of 6% per annum from the date of petition till the date of realization.

               (iii) Claimants are liable to pay the Court fee for the enhanced part of the compensation, before the learned MACT.

               (iv) Apportionment:

               (a) Claimant No.1 / wife of the deceased is entitled to Rs.3,72,000/- with proportionate interests and costs.

               (b) Claimant Nos.2 and 3 / daughters of the deceased are entitled to Rs.1,40,000 /- each with proportionate interest.

               (c) Claimant No.4 / son of the deceased is entitled to Rs.1,40,000/- with proportionate interest.

               (d) Claimant No.5 / mother of the deceased is entitled to Rs.1,40,000/- with proportionate interest.

               (v) Respondent Nos.3 and 4 / Insurance companies are liable to pay the compensation.

               (vi) Time for payment /deposit of balance amount is two months.

               (a) If the claimants furnish the bank account number within 15 days from today, the respondents / Insurance Companies shall deposit the amount directly into the bank account of the claimants and file the necessary proof before the learned MACT.

               (b) If the claimants fail to comply vi(a) above, the respondents / Insurance Companies shall deposit the amount before the learned MACT and the claimants are entitled to withdraw the amount at once on deposit.

               (vii) There shall be no order as to costs, in the appeal.

47. As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed.