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2007 (2) ALD 680
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
C.Y. SOMAYAJULU, J.
Shaik Babumiya and others - - Appellants
Versus
General Manager, APSRTC, Hyderabad - - Respondent
CMA No.578 of 1999
Decided on : 16th November, 2006
Advocates appeared:
K. Raji Reddy, Advocate for the Appellant.
Motor Vehicles Act, 1988 –Section 140 and 166 – Accident – Death – Compensation Claim – Appellants who are husband and children of filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of alleging that the deceased died due to an accident caused by rash and negligent driving of the bus belonging to the respondent. Respondent contested the petition inter alia on the ground that the deceased herself was responsible for the accident – In support of their case, appellant examined the first appellant as PW and another witness as PW2 and marked – No evidence either oral or documentary was adduced on behalf of respondents – It should be stated that the appellants also filed a claim petition under Section 140 of Act seeking compensation under no fault liability – Tribunal clubbed both claim petition and recorded a finding that inasmuch m there is no evidence on record to show that deceased died as a result of injuries received by her in accident they are entitled to compensation under Section 140 of Act and awarded in the claim petition filed under Section 140 of Act and dismissed petition filed under Section 166 of Act – Aggrieved by dismissal of petition under Section 166 of Act claimants preferred this appeal –Respondent admitted the accident involving the deceased specific case of the respondent, in counter filed on its behalf is that the deceased herself was responsible for accident because she tried to board bus while it was in motion evidence of PWI shows that driver of bus started bus even without a signal and took it in reverse direction and so deceased fell down – He produced EX.A I copy of First Information Report issued in connection with the accident and Ex.A4 copy of the charge-sheet filed by the police against the driver of bus under Section 338 IPC in connection with accident – Held, Certificate issued by relating to death of the deceased. EX.A2 is not relevant to decide the point whether the deceased died due to the injuries received by her in the accident. From EX.A3 application given by 4th appellant to PW2, it can be inferred that the appellants did not get the death of the deceased registered under Section 10 of the Registration of Births and Deaths Act, 1969 within time prescribed. As per Section 10 of 1969 Act, it is the duty of PWI to get the death of the deceased registered – Had death of deceased been registered, as per Section 12 of the 1969 Act, an extract would have been given to him free of cost certifying the death of the deceased. As rightly observed by Tribunal no record relating to the treatment underwent by the deceased in any hospital is produced by appellants. Had the appellants produced the certificate of extract from Register of Deaths the cause of death of deceased would have been known. Since they failed to produce same, an inference can be drawn that they withheld the same only because entry therein would be adverse to them. So, I hold that the evidence on record does not show that the death of the deceased was due to the accident in which she was involved – Appeal is allowed.
2. Heard the learned Counsel for appellants. There is no representation on behalf of the respondent though served.
3. The points for consideration in this appeal are:
(1) Whether the deceased died as a result of the injuries received by her in an accident caused by the bus of the respondent?
(2) To what compensation, if any, are the appellants entitled to?
Point No.1:
4. Respondent admitted the accident involving the deceased. The specific case of the respondent, in the counter filed on its behalf is that the deceased herself was responsible for the accident because she tried to board the bus while it was in motion. The evidence of PWI shows that the driver of the bus started the bus even without a signal and took it in the reverse direction and so the deceased fell down. He produced EX.A I copy of the First Information Report issued in connection with the accident and Ex.A4 copy of the charge-sheet filed by the police against the driver of the bus under Section 338 IPC in connection with the accident. Though appellants adduced prima facie evidence to show that the accident occurred due to the rash and negligent driving of the driver of the bus belonging to the respondent, respondent did not choose to examine either the Driver of the bus or the Conductor to swear to the facts and circumstances relating to the accident. So, an adverse inference has to be drawn against the respondent for not examining either the Driver or the Conductor of the bus in support of its case that the deceased tried to board the bus while it was in motion after the Conductor gave a signal and that there was no fault on the part of the Driver of the bus belonging to it. Therefore, it can be taken that the accident occurred due to the rash and negligent driving of the bus by its driver.
5. The next point is whether the death of the deceased was due to the injuries received by her in the accident?
6. There is no evidence on record o show that the deceased underwent treatment for several months in any hospital .r to show that she died as a result of he injuries received by her in the accident. As seen from Ex.A4, the police filed le charge-sheet dated 8-5-1994 under section 338 IPC. EX.A3 is an application dated 8-2-1995 said to have been given by 4th appellant to PW2, the Village administrative Officer, informing that his mother died on 8-7-1994 and so a Certificate of Death may be given to him on which PW2 endorsed that the deceased died on 8-7-1994 and that her husband (first appellant) is the heir to her estate. PW2 stated, during cross-examination, that he does not know about the accident and that he does not know how the deceased suffered injuries and th
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