HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A. No.3539 of 2014
JUDGMENT:
Not being satisfied with the quantum of compensation awarded by the Chairman, Motor Accidents Claims Tribunal-cum-District Judge, Nizamabad in O.P. No.485 of 2011 dated 08.07.2014, the present appeal is filed by the claimants.
2. For the sake of convenience, the parties have been referred to as arrayed before the Tribunal.
3. According to the petitioners, on 21.04.2011 at about 12-00 mid night, Bachina Madhan Mohan was traveling in Qualis Jeep bearing No. AP.12.G.6735 from Tenali towards Rimmanaguda village and when the jeep reached on Tenali to Dachepally road, one lorry bearing No.AP 05 TU 116 was found parked in the middle of the road without any signals, danger lights, parking lights etc. due to which the driver of the Qualis touched the lorry from back side. Due to which, Bachina Madhan Mohan sustained injuries all over the body and while he was being shifted to hospital, succumbed to the injuries on 22.04.2011 at 3-50 A.M. and one Bachina Padmavathi also died in the said accident. 2 According to the claimants, the deceased Madhan Mohan was aged 30 years, working as Police Constable at Kukunoorpally Police Station and earning Rs.15,000/- per month. Thus, the petitioners are claiming compensation of Rs.30,00,000/- under various heads against the respondent Nos.1 and 2, who are owner and insurer of the lorry bearing No.AP 05 TU 116.
4. Respondent No.1 remained ex parte; Respondent No.2 filed counter disputing the manner in which the accident occurred, age, avocation and income of the deceased. It is further contended that the accident occurred due to rash and negligent driving of the Qualis Jeep bearing No. AP 12 G 6735 by its driver and there was no negligence on the part of driver of the parked lorry bearing No. AP 05 TU 116 and that the claim is excessive.
5. In view of the above pleadings, the Tribunal raised the following issues:
1) Whether the accident has taken place due to rash and negligent driving of lorry bearing No. AP 05 TU 116 by its driver?
2) Whether the petitioners are entitled for compensation, if so, to what amount and against whom?3
3) To what relief?
6. In order to prove the issues, on behalf of the petitioners, PWs.1 to 3 were examined and got marked Exs.A-1 to A-6. On behalf of respondent No.2, no witnesses were examined and Ex.B1 was marked.
7. On considering the oral and documentary evidence on record, the Tribunal has awarded an amount of Rs.15,50,000/- towards compensation to the appellants-claimants along with proportionate costs and interest @ 7.5% per annum from the date of petition till the date of realization against the respondent Nos.1 and 2 jointly and severally.
8. Heard the learned counsel for the appellants-claimants and the learned Standing Counsel for the respondent No.2-Insurance Company. Perused the material available on record.
9. The learned counsel for the appellants-claimants has submitted that although the claimants have established the fact that the death of the deceased-Bachina Madhan Mohan was caused in a motor accident which occurred due to the rash and negligent driving of the driver of lorry bearing No.AP 05 TU 116 and the police filed charge sheet against the driver of the lorry, the Tribunal erred in fixing the liability against 4 the Qualis driver and lorry driver at 50:50. Therefore, prays to allow the appeal and fix the liability against the respondents.
10. Learned Standing Counsel for the respondent No.2-Insurance Company vehemently argued that the Tribunal has rightly came to the conclusion by stating that the accident occurred due to the contributory negligence and the Qualis driver has contributed in the accident. Hence, the Tribunal awarded adequate compensation by fixing liability against the lorry driver and the Qualis driver at 50:50 and the same needs no interference by this Court.
11. With regard to the manner of accident, the evidence of PW-3 shows that on 21.4.2011 at 12-00 mid night the deceased Bachina Madhan Mohan along with two others was traveling in Qualis jeep bearing No. AP.12.G.6735 from Tenali towards Rimmanaguda village and when it reached Mutyampadu cvross roads in Guntur District, one lorry bearing No. AP.05.TU.116 was parked on the middle of the road without any signals, danger/parking lights and without taking any precautions, due to which, the Qualis touched the lorry from backside and the deceased Madhan Mohan sustained severe fracture injuries all over the body and died while being shifted to the hospital and a woman 5 by name Bachina Padmavathi also died in that accident. Further Ex.A4 certified copy of charge sheet under Ex.A4 discloses that the police after thorough investigation laid charge sheet against the driver of the lorry bearing No.AP 05 TU 116. It is pertinent to state that the respondent No.2 Insurance Company has not adduced either oral or documentary evidence to show that there is any fault in the investigation done by the police nor to prove any contributory negligence on the part of the Qualis driver. Furthermore, respondent No.2 in their cross-examination has not even suggested that there is contributory negligence on the part of the Qualis driver. Respondent No.2 has not even filed the rough sketch to show the position of the lorry, whether it was parked in the middle of the road or to the side of the road. Further as the accident occurred at mid night and there are no street lights and the lorry driver/respondent No.1 parked the lorry by opening the back door without taking any precautions like switching on the blinking parking lights etc., it is very clear that the accident occurred only due to the negligent parking of the lorry of respondent No.1. Under these circumstances, this Court is of the considered opinion that the accident occurred only due to the negligence of the lorry driver but the Tribunal without considering the above facts has erred in fixing the liability against both the vehicles. 6
12. Coming to the quantum of compensation, according to the petitioners, deceased-Madhan Mohan was aged 30 years, working as Police Constable and earning Rs.18,000/- per annum. PW-2 also supported the version of PW1 with regard to the age, avocation and earnings of the deceased. Ex.A6 is the last pay certificate of the deceased Madhan Mohan issued by the Superintendent of Police, Medak at Sangareddy, which shows that the gross salary of the deceased was Rs.15,910/- in April 2011, which includes KMA Rs.100/- and R.A. Rs.150/-, which cannot be included in the gross salary of the deceased and therefore, the gross salary of the deceased comes to Rs.15,660/- per month. Further, in light of the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1, the claimants are entitled to future prospects @ 50% of his income, since the deceased was aged in between 32 years. Then it comes to Rs.23,490/- (15,660 + 7,830 = 23,490/-). From this, 1/3rd is to be deducted towards personal expenses of the deceased following Sarla Verma v. Delhi Transport Corporation2 as the dependents are three in number. After deducting 1/3rd amount towards his personal and living expenses, the contribution of the deceased to the family would be 1 2017 ACJ 2700 2 2009 ACJ 1298 (SC) 7 Rs.15,660/- per month (23,490 - 7,830 = 15,660/-). Since the deceased was 32 years by the time of the accident, the appropriate multiplier is '16' as per the decision reported in Sarla Verma v. Delhi Transport Corporation (supra). Adopting multiplier '16', the total loss of dependency would be Rs.15,660/- x 12 x 16 = Rs.30,06,720/-. In addition thereto, the claimants are also entitled to Rs.77,000/- under the conventional heads as per Pranay Sethi's (supra). Apart from that, as per the decision of the Apex Court in Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others3, the claimant No.2 being the minor child of the deceased, is granted parental consortium of Rs.40,000/- and claimant No.3 being the father of the deceased is granted filian consortium of Rs.40,000/-. Thus, in all the claimants are entitled to Rs.31,63,720/-.
13. With regard to the liability, as discussed above, since the accident occurred due to the negligence of the driver of the lorry, which was insured with the respondent No.2-Insurance Company and the policy was in force as on the date of accident under Ex.B1, respondent Nos.1 and 2 are jointly and severally liable to pay compensation to the petitioners.
3 (2018) 18 SCC 130 8
14. In the result, the M.A.C.M.A. is allowed by enhancing the compensation amount awarded by the Tribunal from Rs.15,50,000/- to Rs.31,63,720/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization, to be payable by the respondent Nos.1 and 2 jointly and severally. The amount shall be deposited within a period of one month from the date of receipt of a copy of this order. The amount of compensation shall be apportioned among the appellants-claimants in the ratio as ordered by the Tribunal. The claimants shall pay deficit Court fee on the enhanced compensation, since the initial claim was for Rs.30,00,000/-. On such payment of court fee only, the claimants are entitled to withdraw the amount. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
_______________________ M.G.PRIYADARSINI,J 05.12.2022 pgp