(Prayer: Appeal filed under Order 41 of CPC praying that the High court may be pleased to the Judgment and Decree dated 01.08.2019 in M.V.O.P. No. 76 of 2017 on the file the Motor Accidents Claims Tribunal-Cum - V Additional District Judge, Rayachoty, YSR Kadapa District

IA NO: 1 OF 2019

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings including the execution proceedings in M.V.O.P. No. 76 of 2017 on the file the Motor Accidents Claims Tribunal—Cum - V Additional District Judge, Rayachoty, YSR Kadapa District to the appellant and pass)

1. The present appeal is filed aggrieved by order dated 01.08.2019 passed in MVOP No.76 of 2017, on the file of the Motor Accidents Claims Tribunal-cum-V Additional District Judge, Rayachoti.

2. For the sake of convenience, the parties are referred to as they were referred before the Tribunal.

3. The petitioners filed claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.8,00,000/-, on account of the death of Shaik Khadar Sab (husband of the 1st petitioner and father of the petitioner Nos.2 & 3, herein after referred to as ‘the deceased’) in the accident that was occurred on 14.09.2016, in which the offending RTC bus bearing registration No.AP28Z1889 was involved.

4. It is the case of the petitioners that on 14.09.2016, the deceased along with the 1st petitioner boarded into the auto bearing registration No.AP04TW0509, belonging to the 1st respondent. When the auto reached Kanakarabanda Darga on Rayachoty – T.Sundupalli Main Road, the 1st respondent/driver of the auto drove the same in a rash and negligent manner and dashed the offending RTC bus. As a result, the inmates of the auto sustained injuries and the deceased died on the spot. The 1st petitioner also sustained grievous injuries on her vital parts. A case in Cr.No.340/2016 was registered under Sections 337, 338 and 304 (A) IPC. Thereafter, the crime was investigated into and charge sheet was filed against the respondent Nos.1 and 4. It is further case of the petitioners that the deceased was agriculturalist and was also engaged in seasonal mangoes and groundnuts business, earning about Rs.1,20,000/- per annum. It is stated that the entire income of the deceased was being contributed towards the maintenance of the family and, in view of the sudden demise of the deceased, the petitioners approached the Tribunal by filing the above-mentioned claim petition.

5. The 4th respondent remained ex-parte before the Tribunal. The 1st respondent filed a counter affidavit denying the averments made in the claim petition, inter alia, contending that the petitioners have to prove contents of the claim petition. It was further stated that the claim petition is not maintainable against the 1st respondent inasmuch as the offending auto was insured with 2nd respondent and, if at all any compensation is to be paid, the 2nd respondent alone is liable to pay the same. It was also stated that the 1st respondent possessed a valid driving license at the time of accident and prayed to dismiss the claim against him.

6. The 2nd respondent filed counter affidavit stating that the petitioners have to prove the manner in which the accident was occurred by producing documentary evidence. It was further stated that it is for the owner of the vehicle to furnish the particulars of policy, date, time and place of the accident and the persons injured, as mandated under Section 158 (6) of the Motor Vehicles Act. It was further contended that respondent Nos.1, 3 & 4 are liable to pay the compensation, as the accident occurred due to the negligence of the respondent Nos.1 & 4.

7. A separate counter affidavit was filed by 3rd respondent stating that the 1st respondent/driver of the auto came in a rash and negligent manner at a high speed with overload, thereby lost control over the auto and dashed the offending bus. It was further stated that there was no negligence on the part of the 4th respondent and that the compensation claimed by the petitioners was excessive. With the above pleadings, the 3rd respondent prayed to dismiss the claim petition.

8. In order to substantiate their claim, the petitioners examined PWs.1 & 2 and marked Exs.A1 to A5. On the other hand, 1st respondent/driver of the offending auto was examined as RW.1 and employee of 2nd respondent Insurance Company was examined as RW.2. No documentary evidence was produced by the respondents on their behalf. Considering the oral and documentary evidence of the petitioners, the Tribunal, by order under challenge, awarded an amount of Rs.6,10,000/-, together with interest at the rate of 9% per annum from the date of petition till the date of deposit, by fastening the liability to an extent of 50% on the 1st respondent and 50% on respondent Nos.3 & 4, out of the total compensation awarded under various conventional heads.

9. Heard counsel appearing for the appellant and Ms.Nandini counsel, representing Sri O.Udaya Kumar appearing for respondent Nos.1 to 4. Despite service of notice, there is no appearance for respondent Nos.5 & 6.

10. Perused the record.

11. The only ground on which the present appeal is filed that, the quantum of compensation awarded by the Tribunal is excessive. In order to substantiate the said contention, the appellant/3rd respondent did not adduce any evidence on its behalf nor filed any documentary evidence to rebut the contentions of the petitioners. On the other hand, it is evident from the claim petition that the deceased was doing cultivation and was also engaged in seasonal mangoes and groundnuts business and was earning Rs.10,000/- per month. In support of the said contention, the petitioners filed Ex.A5 to show that the deceased was earning Rs.10,000/- per month. However, the Tribunal did not take the same into consideration inasmuch as the same was not an authenticated document. Having disbelieved Ex.A5, the Tribunal fixed the income of the deceased notionally at Rs.7,500/- per month.

12. It is pertinent to note that the respondents have miserably failed to rebut the oral and documentary evidence adduced by the petitioners in respect of the income of the deceased. Further, as already observed supra, the deceased was doing cultivation and was also engaged in the business of mangos and groundnuts. Taking the same into consideration, the Tribunal had fixed the income as Rs.7,500/- per month and this Court is not inclined to interfere with the findings of the Tribunal in this regard. Further, following the judgment rendered by Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi((2017) 16 SCC 680), the Tribunal awarded compensation of Rs.6,10,000/-, together with interest at the rate of 9% per annum from the date of petition till the date of realization. Though the counsel for the appellant strenuously contended that the compensation fixed by the Tribunal is excessive, in view of the findings recorded supra, this Court is not in agreement with the argument advanced by the counsel for the appellant. In view of the above, there are no merits in the appeal, accordingly the same is dismissed.

There shall be no order as to costs.

As a sequel, pending applications, if any, shall stand closed.