THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
MACMA.No.2658 of 2013
JUDGMENT:
This appeal is filed by the insurance company challenging the award dated 05.11.2012 in OP.No.654 of 2010 passed by the Chairman, Motor Accident Claims Tribunal - cum - Principal District Judge, Karimnagar.
2. The facts of the case are as under:
On 21.04.2010, in the afternoon hours, when the deceased, Kapu Venkat Raghu, was proceeding from Siddipet to Hyderabad in his Maruti 800 Car bearing No.AP 10 AL 3982, at about 14.30 hours, when he reached the outskirts of Thurkapally near Jyothishmath Engineering College, the respondent No.1 drove Bolero Car bearing No.AP 10 AS 9901 in a rash and negligent manner with high speed and dashed the car of the deceased in the opposite direction, as a result of which, the deceased sustained multiple injuries and died on the spot. The Police, Shamirpet, registered a case in Cr.No.80 of 2010 under Section 304-A IPC against the respondent No.1 and later filed charge sheet. On the date of the accident, the deceased was aged 47 years. He was working as an Architectural Engineer and earning a sum of Rs.15,000/- per month and maintaining his family. The respondent No.1 is the driver of the offending vehicle, the respondent No.2 is the owner of the vehicle and the respondent no.3 is the insurer of the offending vehicle.
3. A common counter was filed by the respondent Nos.1 and 2 denying the negligence of the respondent No.1 and attributing negligence to the deceased. However, it is stated by them that since the offending vehicle was insured with the respondent No.3, 2 the compensation, if any, awarded should be paid by the respondent No.3 - insurance company.
4. The respondent No.3, insurance company, in its counter denied that the accident occurred due to the negligence of the deceased. Further it is stated that since there is collision between two vehicles, the accident might have been occurred due to the negligence of both the drivers. The deceased or his insurance company is liable for contributory negligence. The age of the deceased is disputed. The deceased was not having driving license. The compensation claimed is excessive.
5. The claimant No.1, the wife of the deceased was examined as P.W.1 and an eye witness to the accident was examined as P.W.2. Exs.A1 to A10 were marked on behalf of the claimants. R.W.1 was examined on behalf of the respondent No.3 and Exs.B1 to B3 were marked. The tribunal, after taking into account the oral and documentary evidence, awarded compensation of Rs.9,76,000/- as against the claim of Rs.15,00,000/-.
6. Sri K. Madhusudhan Reddy, learned counsel for the appellant, submitted that the compensation cannot be awarded as a bonanza. There is no proof of income of the deceased. The income of the deceased was taken as Rs.12,000/- per month, which is on the higher side. Even if the deceased is treated as a skilled person, his income should not be taken more than Rs.8,000/-. Since the deceased is an Engineering graduate, he has to be treated as a skilled labourer. Learned counsel for the appellant also submitted that the tribunal below erred in ignoring the negligence on the part of the deceased. He also relied upon the decision in NEW INDIAN ASSURANCE CO. 3 LTD. v. DIVISIONAL MANAGER, KURNOOL1; ORIENTAL INSURANCE CO. LTD. v. D. KIRAN KUMAR2 and RAJ RANI v. ORIENTAL INSURANCE CO. LTD.3.
7. Per contra, Sri. Ch. Venkat Reddy, learned counsel for the respondent Nos.1 to 3, submitted that the negligence on the part of the offending vehicle is clearly proved through the evidence of P.W.2 and Exs.A1 and A2. The tribunal below fixed the income of the deceased at Rs.12,000/- per month since he was an Architectural Engineer, which is authenticated by Exs.A7 and A10.
8. Heard the learned counsel for the appellant - insurance company and the learned counsel for the respondent Nos.1 to 5.
9. P.W.2 is the eye witness to the accident and he stated that on 21.04.2010, while he was going to Siddipet from Hyderabad at about 2.30 PM, when he reached Jyothishmathi College of Engineering, the offending Bolero Car bearing No.AP 10 AS 9901 overtook his car in a rash and negligent manner and dashed against Maruti Car of the deceased from opposite direction as a result of which the inmate of the car died on the spot. He stopped his vehicle and noticed that the deceased is his friend Mahesh's brother and as such, he informed him about the incident over phone and on his arrival, they went to the police station and gave a report. The evidence of P.W.2 corroborates the contents of the Ex.A1 (FIR) and Ex.A2 (Charge Sheet). It is clear from the evidence of P.W.2 that there is no negligence on the part of the deceased. Thus, the deceased or his insurance company is not liable for contributory negligence. The judgments (supra) relied on by the learned counsel fro the appellant are not applicable to the facts of 1 2008 (6) ALT 561 2 2007 (6) ALD 261 3 2009 ACJ 2003 SC 4 the case since there is no contributory negligence on the part of the deceased in the light of the clear and unimpeachable evidence of P.W.2, who is an eye witness to the incident.
10. In so far as quantum of compensation is concerned, the tribunal below pointed that the claimants have not adduced any oral or documentary evidence to prove the income of the deceased. However, considering the fact that the deceased is an Engineering graduate, the tribunal below took the minimum income and fixed the income of the deceased at Rs.12,000/- per month, which cannot be found fault with. More so, since the deceased is a qualified Architectural Engineer, considering the judgment of the Supreme Court in NATIONAL INSURANCE CO. LTD. v. PRANAY SETHI4, if future prospects at 40% is added, the fixation of Rs.12,000/- per month does not appear to be on the higher side. Hence, the argument of the learned counsel for the appellant that the compensation is being given as a bonanza is not correct.
In view of the above discussion, the civil miscellaneous appeal is dismissed. As a sequel, the miscellaneous applications, if any, shall stand closed.
__________________ B. VIJAYSEN REDDY, J February 15th, 2021 DSK 4 (2017) 16 SCC 680