HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
M.A.C.M.A.No.435 of 2018
and
X-Objections No.13 of 2022
COMMON JUDGMENT :
The appeal is filed by the appellant/TSRTC, being aggrieved
by granting compensation of Rs.3,85,000/- vide order dated
18.09.2017, in MVOP.No.531 of 2013 on the file of Motor
Accident Claims Tribunal-cum- I Additional District Judge,
Nizamabad. Whereas, the claimant has filed X-Objections No.13
of 2022, seeking to enhance the compensation to Rs.8,00,000/-.
2. Initially, the claimant filed the MVOP before the Tribunal
claiming compensation of Rs.8,00,000/- for the death of her son
Bollaram Avinash, aged 22 years, who died in a motor accident on
21.06.2013 at 11.20 p.m., in front of Vandana Super Market,
Vinayaknagar, Nizamabad and the accident occurred due to the
rash and negligent driving of RTC bus bearing No.AP-25-Z-0053
by its driver.
3. The Tribunal, on examining the oral and documentary
evidence before it, has partly allowed the O.P. by awarding a total
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compensation of Rs.3,85,000/- with costs and interest @ 7.5% per
annum from the date of petition till the date of deposit and further
directed the RTC to deposit the compensation within a period of
one month.
4. Heard learned counsel for both the parties and perused the
record.
5. It is contended by the learned counsel for the appellants/RTC
that the Tribunal has failed to appreciate the fact that the accident
occurred due to the mere negligence of the deceased but not due to
the negligence of the driver of the bus. It is further contended that
the Tribunal ought not to have considered the evidence of PW-2,
who is alleged to be the eyewitness to the accident. It is the further
contention of the appellant that the charge sheet was deliberately
and intentionally not filed before the Tribunal and the Tribunal
ought to have taken adverse inference for non-filing of the charge
sheet, as the claim is under Section 166 of the Motor Vehicles Act.
It is the further contention of the learned counsel for appellants that
the income of the deceased was taken as Rs.5,000/- per month
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instead of taking as Rs.3,000/-. Accordingly, he prayed to set aside
the orders passed by the Tribunal, dated 18.09.2017.
6. On the other hand, the learned counsel for respondent/
Cross-Objector contended that the trial Court ought not to have deducted 50% of the awarded amount towards contributory negligence, as contributory negligence was not all pleaded by the respondents and no issue was framed to that effect. Accordingly, prayed to grant an amount of Rs.7,70,000/-, which the Tribunal has arrived at, without deducting any amount towards contributory negligence.
7. On perusal of the record, it is evident that PW-2 deposed before the Tribunal that he has witnessed the accident while travelling behind the RTC bus and that the driver of the bus had suddenly applied brakes, due to which, the deceased hit the bus, sustained severe injuries and succumbed to the same. The Tribunal has discussed at length at paragraph 9 of its order about the non-filing of charge sheet by the Police and not filing the referred charge sheet, if any. The Tribunal has believed the evidence of 4 GAC, J MACMA.No.435 of 2018 PW-2 which is corroborating the evidence of PW-1 and also documentary evidence and came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the bus who applied sudden brakes, due to which, the deceased's motorcycle hit the bus from behind and the deceased sustained severe injuries and died while undergoing treatment in the hospital. It is the specific finding of the Tribunal that due to the sudden application of brakes by the driver of the bus, the accident occurred and it is for the driver of the bus to observe the vehicles coming from behind, from the rear view mirrors and after knowing that no vehicle is coming from behind, then only, he can apply sudden brakes. The Tribunal further came to the conclusion that applying of sudden brakes itself shows the negligence of the driver of the bus, without giving any caution to the riders coming from the back side to control their vehicles and the said issue was answered against the appellants herein.
8. Admittedly, there is no contra evidence on record to show that there is contributory negligence on the part of the deceased and due to the rash and negligent driving of the deceased, the accident 5 GAC, J MACMA.No.435 of 2018 had occurred. Though the Tribunal has given a finding that the accident occurred due to applying of sudden brakes by the driver of the bus, contra to it, an observation was being made as, "it appears there is also contributory negligence on the part of the deceased. Since the deceased who was riding his bike behind the crime bus, he should have observed the bus cautiously which was going ahead of him and he ought to have maintained a distance of 50 feet from the bus". On perusal of the oral evidence of PW-2, it is evident that distance is being maintained by the deceased as well as by PW-2, who were travelling behind the bus and there is no evidence on record to show that the distance is not being maintained by the deceased at that particular point of time and inspite of care and caution, the deceased could not avoid the accident. In general, no person will go and hit a running bus and take risk of his life. Further, it is to be noted that even no issue is framed before the Tribunal with regard to contributory negligence. Therefore, the question of contributory negligence on the part of appellant does not arise. Dealing with similar issue, this Court in Chakali 6 GAC, J MACMA.No.435 of 2018 Swaroopa v. Mohd Ghouse (2016 ACJ 383), has observed at para 13, as under:-
"13. No issue has been framed by the Tribunal with regard to the contributory negligence, if any, on the part of the deceased. The respondent has not adduced any evidence to establish the contributory negligence on the part of the deceased. If the driver of the crime vehicle abstains himself from entering into the witness box, the Tribunal can draw an adverse inference. The respondent did not take any steps to examine the eyewitnesses to the accident to establish the negligence, if any, on the part of the deceased. The second respondent has not adduced any evidence much less legally admissible evidence to substantiate its stand...".
The aforesaid judgment squarely applies to the facts of the the present case. Therefore, this Court finds that the Tribunal ought not have held contributory negligence on the part of the deceased, who died in the accident.
9. As far as the quantum of compensation is concerned, there is no dispute with regard to the calculations made by the Tribunal in arriving at compensation of Rs.7,70,000/-. 7
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10. In view of the above discussion, this Court is of the view that the claimants are entitled to the total compensation of Rs.7,70,000/-.
11. Accordingly, the appeal filed by the RTC i.e. MACMA.No.435 of 2018 is dismissed and X-Objections No.13 of 2022 is partly allowed, enhancing the compensation from Rs.3,85,000/- to Rs.7,70,000/- with costs and interest at the rate of 7.5% per annum from the date of award of the Tribunal till the date of realization. The appellants/RTC shall deposit the compensation amount within three months from today. On such deposit, the claimant is entitled to withdraw the entire amount.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 05.07.2022 ajr