V VENKAT ARAMANA v. The SUPERINTENDING ENGINEER AND 2 OTHERS, DAM MAINTENANCE SUINDIPENTA, SRISAILAM PROJECT KURNOOL DISTRICT

Judgment

Introductory:

#1. Heard Sri K. Mohan Rami Reddy and Sri B. Nagi Reddy, learned counsel for the appellant, Sri T. Kumar Babu, learned counsel for the respondents and learned Government Pleader for Arbitration.

#2. Challenge in this appeal is against the order and decree dated 17.10.2016 passed in M.V.O.P.No.88 of 2014 by the Motor Accidents Claims Tribunal-cum- VI Additional District Judge, Kurnool (for short “the learned MACT”). Claim was laid by one V. Venkata Ramana contending that his paternal grandfather V. Narayana (hereinafter referred to as “the deceased”) died in a road traffic accident due to rash and negligent driving of the driver of the Settle Vehicle bearing No.AP M 2087 (hereinafter referred to as “the offending vehicle”).

#3. The offending vehicle was owned by Respondent No.1 / Superintending Engineer, Dam Maintenance, Sundipenta of Srisailam Project and the driver was under the employment of Respondent Nos.1 and 2 who are in control of the offending vehicle. Respondent No.3 is the paternal aunt of the claimant.

#4. Learned MACT awarded compensation favour of the claimant- V. Venkata Ramana, Respondent No.3-paternal Aunt of the claimant and another 4 person by name one Mr.Niranjan, who is said to be the brother of the claimant / petitioner and not a party before the learned MACT. Claim was made for Rs.4,00,000/-. Learned MACT awarded a compensation of Rs.2,07,000/-. Case of the claimant:

#5. On 29.09.1993 at about 6:00 A.M. while the deceased, was travelling in the offending vehicle from Sunnipenta to the Dam site for attending duty, vehicle

met with an accident near Switch yard, Srisailam Project, as a result the vehicle fell into a ditch and deceased and 18 persons died and others sustained injuries. At the time of the accident, the vehicle was driven by the driver i.e. one Mr.Salam, with high speed in a rash and negligent manner. Driver of the offending vehicle is responsible for the accident. The offending vehicle was meant for carrying the employees who were working in the Dam maintenance, Srisailam Project, from Sundipenta to the dam site. The offending vehicle belongs to Respondent No.1.

#6. Claimant is the grandson of the deceased. He is the only legal heir and dependent of the deceased. The accident occurred due to the rash and negligent driving of the driver of the offending vehicle who is under the employment of Respondent No.1. Respondent No.2 is representing the State. Therefore, both Respondent Nos.1 and 2 are liable to pay the compensation. 5 Case of Respondent No.1:

#7. The petition allegations are false. The petition is filed after a lapse of 20 years, as there were no legal heirs to the deceased, no claim was immediately filed. Deceased date of birth was 01.07.1949 as per the records. His wife is one Smt. V. Bala Krishnamma and they were having three daughters i.e. Pedda Narasamma, Chinna Narasamma, and Lakshmi Devi and one son by name Venkateswarlu. The petitioner is no way connected to the deceased. Case of Respondent No.3:

#8. Respondent No.3 is the daughter of the deceased. She was not added as claimant / petitioner in the main O.P., hence filed application for impleadment. The accident has occurred on 29.09.1993. Rash and negligent driving of the driver of the offending vehicle is the cause for accident. She is the daughter of the deceased, hence entitled for half share in compensation amount awarded.

#9. On the strength of pleadings, the following issues were settled for trial by the learned MACT:

#1. Whether the accident occurred due to the rash and negligent driving of the driver of the vehicle bearing No.AP M 2087?

#2. Whether the deceased Mr.V.Narayana, died in the road accident?

#3. Whether the petitioner is entitled to compensation? If So, to what amount and against whom?

#4. To what relief? 6

#10. Evidence before the learned MACT: Description Remarks Oral evidence P.W.1: V. Venkata Ramana Claimant P.W.2: D. Vijayudu Tahasildar, Srisailam Documentary evidence RW.1: B. Rambabu RW.2: A. Lakshmi Devi RW.3: T. Rathna Jayakar Order Ex.A1: Certified copy of FIR Ex.A2: Certified Inquest Report Ex.A3: Attested postmortem report Ex.A4: Certified Common 14.02.2003 Ex.A5: Certified copy of Order in M.V.O.P.No.267/2004 Ex.A6: Death Certificate dated 13.02.1994. Ex.A7: Death Certificate dated 22.05.2002 Ex.A8: Legal Heir Certificate dated 27.10.1993 Ex.A9: Legal Heir Certificate dated 03.05.1994. Ex.B1: Photocopy of Family Members Certificate Ex.B2: Letter dated 30.08.2016 Ex.B3: Photo Copy of Family Members Certificate dated Superintending Engineer, Dam Maintenance Circle, Srisailam Dam Respondent No.3 Deputy Engineer, project, Srisailam. Executive Sraisailam Marked on behalf of the petitioner(s). Marked on behalf of the Respondents. 7

27.10.1993. Ex.B4: Photo Copy of Family Members Certificate dated 12.11.2014 Ex.B5: Attested Copy of Aadhaar Card. Ex.B6: Attested Copy of House Hold Card Ex.B7: Letter received Dy.Executive Engineer, R&B Srisailam Sub Division.II, Project.

#11. Arguments in the appeal: 11(1). For the appellant: (i). Awarding of compensation in favour of one Mr.Niranjan, brother of the claimant/appellant is incorrect when he is not a party to the case. (ii). Awarding of compensation in favour of Respondent No.3, maternal aunt of the claimant / appellant who is married daughter of the deceased is not correct. (iii). The deceased is none other than the grandfather of the appellant. Already the father, mother and grandmother of the appellant died and the appellant alone is the legal heir of the dependent, hence he alone is entitled for compensation. (iv). Learned MACT ought to have awarded entire compensation to the appellant. (v). Proper issues are not framed. 8 (vi). Compensation awarded is very low. 11(2). For the Respondents: (i) Learned counsel for Respondent Nos.1 and 2 argued that the dependency and legal heir status of the claimants was disputed by Respondent Nos.1 and 2. Learned MACT erred in ignoring the same and the said aspect is not properly addressed. 11(3). Learned counsel for Respondent No.3 submitted that Respondent No.3 is also entitled for compensation.

#12. There is no appeal by the Government. Therefore, the issue relating to the accident, negligence found by the learned MACT are out of dispute from the end of Respondent Nos.1 and 2.

#13. The points that arise for determination in this appeal are: (1) Whether the provisions of the Code of Civil Procedure (CPC) can be applied to original and appellate proceedings initiated in terms of the Motor Vehicles Act,1988, and if so, to what extent? (2) Whether non-joinder of necessary parties will have any effect on deciding a claim made before the learned MACT and whether an award can be passed in respect of such an absentee party? 9 (3) What is the effect of impugned order and decree passed in respect of Niranjan in his absence? (4) Whether the entitlement of eligible claimants for compensation and the quantification thereof done by the learned MACT under the impugned order and decree is just and reasonable? (5) Whether the impugned order and decree dated 17.10.2016 passed by the learned MACT in M.V.O.P.No.88 of 2014 are sustainable in law and on facts or whether interference is necessary if so, on what grounds? (6) What is the result of the appeal?

#14. Before adverting to answering the points framed, it is found proper to briefly refer the evidence and the findings of the learned MACT. Evidence:

#15. The offending vehicle belongs to the Respondents. Some other victims filed M.V.O.P.No.1196 of 2000 and M.V.O.P.No.267 of 2004. They were allowed by the learned I Additional District Judge and the learned II Additional District Judge, Kurnool.

#16. During his cross examination of claimant done for Respondent No.3, it is elicited that the deceased is her paternal grandfather. Father of the claiamant, V. Venkateswarlu is the sole son. One Claimant himself and second one is Mr. 10 Niranjan are his sons. Claimants father worked as a line man in the P.W.D. On compassionate grounds job of his father given to Mr. Niranjan. He do not know about the three daughters of the deceased, Smt. Pedda Narasamma and Smt. Chinna Narasamma are no more. 17(i). P.W.2 / Tahsildar deposed that previously they used to issue legal heir certificate. But, at present they are issuing only Family Member Certificate. After receiving the notice from the Court, he conducted enquiry and he came to know that the deceased was not having any children at all. 17(ii). During cross examination of P.W.2 for Respondent No.3, it was elicited that family member certificate dated 12.11.2014 was issued form his office stating that Respondent No.3 is also daughter of the deceased.

#18. During his cross examination of R.W.1 for Respondent No.3, he has stated that as per service register of the deceased he was having only three daughters, but their names are not mentioned. Therefore, he cannot say whether Respondent No.3 is one among the three daughters.

#19. Respondent No.3 was examined as R.W.2. She has stated that her father is having three daughters and one son. She alone alive. She is relying on service book of her father which shows that he has three daughters and Family Member Certificate is also filed to show the legal heir details. 11

#20. One T. Ratna Jayakar was examined as RW.3. He is working as Deputy Executive Engineer, Srisailam Project, Srisailam. He brought the original service register of the deceased, who was a Pump Operator. His service book is 30 years old. Some pages are not available. In the said service book declaration of family members is not there. The deceased availed Leave Travel Concession (LTC) during the year 1979-80 and at that time his family members details are noted. As per the same, he was having a wife, father, mother and three daughters. Findings of the learned MACT. 21(i). With regard to negligence and death of deceased due to accident, the learned MACT observed that the Police registered Crime No.45 of 1993 for the offences under Section 304-A IPC at Srisailam II Town Police Station, since the driver of the offending vehicle died, charge sheet might not have filed. The occurrence of the accident and negligence of the driver of the offending vehicle can be believed in view of the in the facts and circumstances of the case particularly on the application of principle of res ipsa loquitur. 21(ii). With regard to entitlement of the claimant, the findings of MACT are that Ex.A2 is the inquest report of deceased wherein Mr. Vaddeti Venkateswarlu is shown as the son of the deceased. Therefore, is concluded V. Venkateswarlu is the son of the deceased. Ex.A6 is death certificate of V. 12 Bala Kistamma which shows her as wife of the deceased. There is no dispute from any corner with regard to the relationship of Smt. Vaddeti Bala Kistamma with the deceased as his wife. Ex.A6 was issued on 18.02.1994 mentioning the date of death of Smt.V. Bala Kistamma as 13.02.1994. 21(iii). Respondent No.3 admitted that the claimant is her nephew. There is no evidence to show that Smt. Bala Kistamma married the deceased subsequent to her first marriage and having some children through first husband. Ex.A8 is the original legal heir certificate indicating that Smt. V. Bala Kistamma is entitled to receive the death benefits and other benefits of the deceased. Ex.A9 is the original legal heir certificate dated 03.05.1994 stating that V. Bala Kistamma, wife of the deceased died on 13.02.1994 and claimant PW.1 is entitled to receive the amounts due to her. It is also mentioned that PW.1 is the paternal grandson of Smt. Bala Kistamma. As per Ex.A7, Mr. V. Venkateswarlu, son of Mr.V. Narayana, father of the claimant died on 22.05.2002. 21(iv). PW.1 / claimant stated in the cross examination that he is having a brother by name Mr. Niranjan, who got job of his father Mr. Venkateswarlu on compassionate grounds. For the reason known to the claimant/ PW.1, said Niranjan is not impleaded as a party to the petition. Merely, because Mr.Niranjan got the job on compassionate grounds his claim cannot be denied. 13 21(v). RW.2 / Respondent No.3 came on record by impleading herself as per orders in I.A.No.403 of 2014, dated 04.06.2015. No appeal or revision is preferred on that. 21(vi). PW.1, his brother Niranjan and RW.2 / Respondent No.3 are entitled to receive compensation. The claimant and his brother Niranjan and Respondent No.3 are entitled for compensation of Rs.2,07,000/-. 21(vii). Petitioner / claimant is entitlement for Rs.62,000/- with costs and accrued interest; Respondent No.3 is entitled for Rs.83,000/- with accrued interest and Mr. Niranjan is entitled for Rs.62,000/- with accrued interest. Point No.1: Whether the provisions of the Code of Civil Procedure (CPC) can be applied to original and appellate proceedings initiated in terms of the Motor Vehicles Act,1988, and if so, to what extent? Statutory Guidance:

#22. Section 169 of the Motor Vehicles Act, 1988 provides as to procedure that can be followed which reads as follows:

#169. Procedure and powers of Claims Tribunals: (1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. 14 (2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). (3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry.

#23. Section 173 of the Motor Vehicles Act, 1988 provides for a relief of appeal to the High Court, which reads as follows:

#173. Appeals: (1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court: Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent. of the amount so awarded, whichever is less, in the manner directed by the High Court: Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. 15 (2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.

#24. 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.

#25. Exercising the power under Section 176, the rules made for the A.P. State, applicable in the context, are as follows: 25(i). 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 16 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

#26. Rule 473 was deals with applicability of the CPC. Rule 474 deals with the form and number of the appeal against the decision of the Claims Tribunal. Rules 473 and 474 reads as follows: Rule - 473. Code of Civil Procedure to apply in certain cases: The following provisions of the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908), shall so far as may be apply to proceedings before the Claims Tribunal namely, Order V, Rules 9 to 13 and 15 to 30 : Order IX, Order XIII. Rules 3 to 10 ; Order XVI. Rules 2 to 21 ; Order XVII and Order XXVIII. Rules 1 to 3. Rule - 474. Form and number of appeals against the decision of claims Tribunal. (1) An Appeal against the award of a Claims Tribunal shall be preferred in the form of a memorandum stating concisely, the grounds on which the appeal is preferred ; (2) It shall be accompanied by a copy of the judgement and the award appealed against.

#27. As per Rule 473 of the CPC, the provisions thereof apply, more specifically, the orders contemplated therein vide Order V Rules 9 to 13 and 15 to 30, Order IX, Order XIII Rules 3 to 10, Order XVI Rules 3 to 21, Order XVII, and Order XXVIII Rules 1 to 3. Rule 174 provides for the form of appeal, which refers that appeals shall be in the form of a memorandum, concisely stating the grounds on which the appeal is preferred. 18 Precedential Guidance:

#28. The procedure applicable in respect of regular appeals in terms of Order XLI Rule 33, CPC whether applies in the case of an appeal in terms of the Motor Vehicles Act, is the next debatable point. This aspect was considered by the Division Bench of this Court in National Insurance Company Limited vs. E. Suseelamma and others1, wherein after referring to the judgment of Hon‟ble Apex Court in Sharanamma vs. North East Karnataka RTC2 with reference to Section 173 of the Motor Vehicles Act, found that the normal rules which apply to appeals before the High Court are applicable to such an appeal also. Observations of Hon‟ble Apex Court in Sharanamma vs. North East Karnataka RTC (2 supra) vide para 10 were reproduced in para 58 of the judgment of Division Bench of this Court in National Insurance Company Limited vs. E. Suseelamma and others (1 supra) is as follows:

#58. Paragraph-10 in Sharanamma (supra) is reproduced as under:— “10. When an appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter shall be referred to as “the Act”), before the High Court, the normal rules which apply to appeals before the High Court are applicable to such an appeal also. Even otherwise, it is well-settled position of law that when an appeal is provided for, the whole case is open before the appellate court and by necessary implication, it can exercise all powers incidental thereto in order to exercise that power effectively. A bare reading of Section 173 of the Act also reflects that there is no curtailment or 1 2023 SCC Online AP 1725 2 (2013) 11 SCC 517 19 limitations on the powers of the appellate court to consider the entire case on facts and law.”

#29. Further, the Division Bench of this Court, in paragraphs 63, 64, 65 and 66, considered the scope of the powers of appellate Court in terms of Section 173 of the Motor Vehicles Act and Order 41 Rule 33 CPC, after referring to the judgments of the Hon‟ble Apex Court in (i) Pannalal vs. State of Bombay3 (ii) Chaya vs. Bapusaheb4 (iii) Pralhad vs. State of Maharashtra5. Relevant observations are as follows:

#63. In Pannalal v. State Of Bombay, with respect to Order 41, Rule 33, the Hon'ble Apex Court held that wide wording of Order 41, Rule 33 CPC, was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal, but also to give such other relief to any of the respondent as “the case may require”. It was further held that if there was no impediment in law, the High Court in appellate court therefore, though allowing the appeal of the defendant by dismissing the plaintiffs suit against it, but plaintiff/respondents decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the rule make this position abundantly clear the illustration puts the position beyond argument.

#64. In Chaya v. Bapusaheb, the Hon'ble Apex Court held that this provision (Order 41 Rule 33 C.P.C) is based on a salutary principle that the appellate