THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO

JUDGMENT:

1. The Motor Accidents Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (for short, ‘the MV Act’) assailing the award passed by the Motor Accidents Claims Tribunal - cum - I Additional District Judge, Medak at Sangareddy in MVOP.No.413 of 2011, dated 27.02.2013.

2. Appellants are the petitioners-claimants and respondents are the respondents in MVOP.No.413 of 2011.

3. Appellants-petitioners have filed claim petition under Section 166 of the MV Act claiming compensation of Rs.3,50,000/- for the death of the deceased Myathari Ashappa.

4. Appellant No.1 - petitioner No.1 is the wife, appellant Nos.2 to 5 - petitioner Nos.2 to 5 are the children of late Myathari Ashappa.

5. Myathari Ashappa is a skilled labourer working as a mason and was earning Rs.6,000/- per month. On 04.03.2011 at about 08.00 p.m., Ashappa travelled as a pillion rider on a motorcycle bearing No.AP-23-1274 along with one M.Lasmappa and Mahaboob to go to Shekapur village from Bonasapuram to attend Valima dinner of one Abdul Nabi. Motorcycle was driven by M.Lasmappa and when they reached the shivar of Malchelma village, the driver of the auto bearing No.AP-23-W-1682 drove the same in a rash and negligent manner with high speed came on the wrong side in opposite direction and hit their motorcycle. Due to which M.Ashappa sustained grievous injuries on his right leg, right kidney, right foot and other injuries all over the body. He was shifted to Bidar Institute of Medical Science, Government Hospital Bidar, was treated from 04.03.2011 to 20.03.2011 and surgery is also performed on him. On the advice of the doctors while they were shifting M.Ashappa to Gandhi Hospital, Secunderabad, in Tata Sumo vehicle, he died at 07.00 a.m. on 20.03.2011 on the way to the hospital at Patancheru town. The deceased was aged about 52 years as on the date of accident. On the complaint, Police, Zaheerabad Rural registered a case in Crime No.25 of 2011 under Section 304-A of IPC against the driver of the auto bearing No.AP-23-W-1682 and prayed to award compensation jointly and severally.

6. Respondent No.1 remained ex-parte before the Tribunal.

7. Respondent No.2 filed counter and denied the age, accident and involvement of the crime vehicle. Further contended that there is a contributory negligence on the part of the deceased as they were triple riding on the motorcycle at the time of the accident, the owner and insurer of the motorcycle No.AP-23-1274 are also proper and necessary parties to the petition and the claim petition is bad for non-joinder of necessary parties. The appellants- petitioners are put to strict legal proof that the driver of the auto and the driver of the motorcycle were having valid driving license as on the date of accident.

8. The learned Tribunal has framed the following issues:

1) Whether the death of the deceased occurred in the motor accident due to the rash and negligent driving of the driver of the crime vehicle?

2) Whether the petitioners were entitled for compensation as prayed for, if so, at what amount and from whom?

3) To what result?

9. Appellant No.1 - petitioner No.1 is examined as PW1 and also examined PW2 – Maibu and got marked Exs.Al to A6. Respondent No.2 got examined RW1-MSRKJ.Prasad and got marked Exs.B1 to B6.

10. The learned Tribunal after analyzing the evidence adduced by the parties and after going through the documents thereon, has partly allowed the claim petition by awarding compensation of Rs.3,22,000/- with proportionate costs and interest at the rate of 6% per annum from the date of petition till the date of deposit of amount and the respondent No.1 alone is held to be liable to pay the awarded amount and the respondent No.2 is discharged from the liability, which is impugned in the present appeal.

11. Learned counsel for the appellants-petitioners submits that the Tribunal ought to have noted that the deceased was proceeding on motorcycle as a pillion rider