HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.Nos.1165 of 2019 and 1235 of 2019
COMMON JUDGMENT:
These two appeals are being disposed of by this
common judgment since M.A.C.M.A.No.1165 of 2019 filed
by the claimants and M.A.C.M.A.No.1235 of 2019 filed by
the Insurance Company challenging the quantum of
compensation, are directed against the very same award
and decree, dated 06.08.2015 made in M.V.O.P.No.397 of
2013 on the file of the Motor Vehicle Accident Claims
Tribunal-cum-Principal District Judge, Medak at
Sangareddy (for short "the Tribunal").
2. For the sake of convenience, hereinafter the parties
will be referred to as per their array before the Tribunal.
3. The facts, in issue, are as under:
The claimants filed a petition under Section 166 of
the Motor Vehicles Act, 1988 against the respondents 1
and 2, claiming compensation of Rs.7,00,000/- for the death of one Baswaraj Patil (hereinafter referred to as "the deceased"), who died in the accident that occurred on 17- 2 05-2013. According to the claimants, on the fateful day, while the deceased was proceeding on a motorcycle along with another, auto bearing No.AP 23 Y 2690, owned by respondent No.1 and insured with respondent No.2, being driven by its driver in a rash and negligent manner and at high speed, dashed the motorcycle. As a result, the deceased received multiple injuries and died on the spot. According to the claimants, the deceased was 40 years and earning Rs.15,000/- per month by doing business. Therefore, they laid the claim against the respondents seeking compensation of Rs.7,00,000/- under different heads.
4. Before the Tribunal, while the 1st respondent remained ex parte, 2nd respondent filed counter denying the averments in the claim-petition including the manner in which the accident took place, age, avocation and income of the deceased. It is further contended that the compensation claimed is excessive and exorbitant and prayed to dismiss the claim-petition.
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5. After considering the oral and documentary evidence available on record, the Tribunal held that the accident occurred due to the negligent driving of both the vehicles i.e., the driver of the auto and the rider of motorcycle and having apportioned the contributory negligence at 75% on the part of the rider of the motorcycle i.e., the deceased, the tribunal has awarded the total compensation of Rs.1,80,000/- to be paid by the respondent Nos.1 and 2 jointly and severally. Challenging the same, the present Appeals came to be filed by the claimants and the Insurance Company respectively.
6. Heard both the learned counsel and perused the material available on record.
7. The main contention raised by the learned Counsel for the claimants is that the tribunal has committed grave error in fixing the contributory negligence at 75% on the part of the deceased merely on the ground that the accident occurred as a result of head on collision in a broad day light. In this regard, the tribunal has not properly appreciated the evidence of PW-2, eyewitness, who 4 categorically deposed that the accident took place while the deceased was proceeding on a two wheeler, the offending vehicle came in opposite direction at high speed negligently and dashed the two wheeler. Therefore, the learned counsel for the claimants seeks to set aside the findings of the tribunal in this regard. As regard the quantum of compensation, it is contended that though the claimants have established that the deceased was earning Rs.15,000/- per month by doing business, the tribunal has taken the meagre amount of Rs.6,000/- per month as the monthly income of the deceased. It is further contended that as per the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1, considering the age of the deceased 40 years, future prospects at 40% to the established income of the deceased needs to be added. It is lastly contended that as per the decision of the Apex Court in Pranay Sethi's case (1 supra), the claimants are entitled to Rs.77,000/- under conventional heads.
1 2017 ACJ 2700 5
8. Per contra, learned Standing Counsel for the Insurance Company has submitted that the Tribunal has erred in fixing 25% contributory negligence on the part of the driver of the offending vehicle, since the contents of F.I.R., Ex.A1, clearly discloses that the accident occurred due to the gross negligence on the part of the deceased. Coming to the quantum of compensation, the learned Standing Counsel has submitted that the Tribunal has, in fact, granted adequate compensation.
9. The Tribunal while considering issue No.1 as to whether the death of the deceased occurred due to the rash and negligent driving of the driver of the crime vehicle, has held that the deceased died in the accident in view of collision between two wheeler and auto and contributory negligence is to be assessed in the ratio of 75% on the part of the deceased and 25% on the part of the driver of the auto. It is relevant to extract the findings of the Tribunal in this regard. At para-11, the Tribunal has observed as under:
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"11. As seen from the evidence of P.W.1, she categorically deposed that the accident occurred due to negligence of driver of auto and there was no negligence on the part of deceased. But, she is not eyewitness to the accident. Coming to the evidence of P.W.2 eyewitness, he categorically deposed that while himself and deceased were going on a two wheeler, auto came in opposite direction in high speed negligently and dashed two wheeler, resulting in the death of deceased. That apart, the petitioners also relied upon the documentary evidence marked as Exs.A1 to A5. Ex.A1 is certified copy of F.I.R., which shows about accident. Ex.A4 certified copy of P.M.E. report discloses that deceased died in the accident. Ex.A5 is certified copy of final report. Of course, Exs.A1 & A5 show that case was not registered against auto and police had shown that it is case of self negligence."
Further, at para-12, the Tribunal observed that, "it is a day occurrence. Further it is not disputed that auto and two wheeler are involved in the accident. Such being the case, I see there is every possibility of contributory negligence on the part of deceased as well as driver of auto since it is case of collision.
10. Thus, the basis for the Tribunal to arrive at a conclusion that there was contributory negligence on the part of the deceased at 75% is solely based on the contents of Ex.A1 F.I.R. and on the ground that the accident had occurred as a result of head on collision in a broad day light. In this regard, it is relevant to mention that the 7 purpose of lodging the FIR in motor accident cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation. In a similar case, this Court in National Insurance Company Limited v. Islavath Chinnamma2, has categorically held that "the contents of FIR cannot be treated as conclusive proof of such aspects. The relevance of FIR in the claim petitions filed under the Act, is virtually limited to see whether the accident and the death or injuries have taken place, at all. Beyond that, it cannot be taken to use of, to affix or apportion the liability in causing the accident". Thus, when there is abundant evidence available in the form of P.W.2, an eyewitness to the accident, who has categorically deposed that the accident occurred only due to the rash and negligent driving of the driver of the auto, it is not proper on the part of the tribunal to fix the contributory negligence on the part of the deceased at 75% based on the contents of Ex.A.1, FIR. Therefore, the said findings of the tribunal are set aside 2 2006 (4) ALD 268 8 and this Court holds that the accident occurred only due to the rash and negligent driving of the driver of the offending auto.
11. Coming to the aspect of quantum of compensation, although the claimants have claimed that the deceased was doing business and earning Rs.15,000/- per month, except the self-serving statement, no income proof or any independent person in this regard was examined by the claimants. In such circumstances, the tribunal has rightly taken the income of the deceased at Rs.6,000/- per month. However, as rightly contended by the learned counsel for the claimants, the claimants are entitled to addition of 40% towards future prospects to the established income, as per the decision of the Apex Court in Pranay Sethi (1 supra). Therefore, future monthly income of the deceased comes to Rs.8,400/- (Rs.6,000/- + Rs.2,400/- being 40% thereof). From this, 1/4th is to be deducted towards personal expenses of the deceased following Sarla Verma v. Delhi Transport Corporation3 as the dependents are five in 3 2009 ACJ 1298 (SC) 9 number. After deducting 1/4th amount towards his personal and living expenses, the contribution of the deceased to the family would be Rs.6,300/- per month. Since the deceased was 40 years by the time of the accident, the appropriate multiplier is '15' as per the decision reported in Sarla Verma v. Delhi Transport Corporation (supra). Adopting multiplier '15', the total loss of dependency would be Rs.6,300/- x 12 x 15 = Rs.11,34,000/-. In addition thereto, the claimants are also entitled to Rs.77,000/- under the conventional heads as per Pranay Sethi's (supra). Thus, in all the claimants are entitled to Rs.12,11,000/-.
12. Accordingly, while dismissing M.A.C.M.A.No.1235 of 2019 filed by the Insurance Company, M.A.C.M.A.No.1165 of 2019 filed by the claimants stand allowed by enhancing the compensation amount awarded by the Tribunal from Rs.1,80,000/- to Rs.12,11,000/-. The enhanced amount shall carry interest at 7.5% per annum from the date of the order passed by the Tribunal till the date of realization, payable by respondent Nos.1 and 2 jointly and severally. 10 The enhanced amount shall be apportioned in the manner as ordered by the Tribunal. Time to deposit the compensation is two months from the date of receipt of a copy of this order. However, the claimants are directed to pay the deficit court fee on the enhanced compensation. There shall be no order as to costs.
13. Miscellaneous petitions, if any, pending shall stand closed.
__________________ M.G.PRIYADARSINI,J 26.10.2022 Tsr/pgp