THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
M.A.C.M.A.No.45 OF 2016
JUDGMENT:
This appeal is directed against the award dated 11.01.2013 in O.P.No.17 of 2009, on the file of the Chairman, Motor Accidents Claims Tribunal (III Additional District Judge), Asifabad, (for short 'the Tribunal), wherein the said claim application filed by respondent Nos.1 to 3 herein seeking compensation was allowed, awarding Rs.23,16,000/- with interest at 7.5% per annum from the date of petition.
2. Heard learned counsel for the appellant-insurer and learned counsel respondent Nos.1 to 3. Perused the record.
3. During the pendency of this appeal, this court by order dated 13.08.2015, dismissed the appeal against respondent No.4-owner of the tipper, as batta was not paid within the time granted.
4. Respondent Nos.1 to 3 herein filed claim application seeking compensation of Rs.20 lakhs on account of death of the deceased Parande Jayanth Rao in a motor vehicle accident that occurred on 17.08.2008 at about 01:15 a.m., on Asifabad-Bellampally road near 2 Repallewada. Claimant No.1 is the wife, claimant No.2 is the daughter and claimant No.3 is the son of the deceased.
5. According to the claimants, on that day, the deceased was proceeding to Bellampally from Asifabad in Government jeep bearing No.AP 01 5987, as its driver, after attending a meeting at Utnoor and when they reached Repallewada church, suddenly the said jeep hit the negligently stationed tipper/lorry bearing No.AP 20X 4459 from backside which was parked on the middle of the road in the darkness without keeping back lights, indicators or parking lights on and without keeping any parking or warning signals like erection of red cloth flag on backside and on passing side or without making any stone or green leaves boundary of marking from some distance in and around the said lorry. The accident occurred due to the gross negligence of tipper/lorry driver. Resultantly, the deceased and his DFO, who were in the jeep, sustained grievous injuries through out body and the jeep was also completely damaged. The deceased sustained grievous injuries and fractures to his head, fore head, hands, legs, arms, chest and the complete face including eyes, nose cheek and 3 mandible and they were shifted to Government Hospital, Bellampally, where the deceased was given first aid and was later shifted to Government Hospital, Mancherial for better treatment where he was treated for (2) days and as his condition was serious, he was shifted to Osmania General Hospital, Hyderabad on 19.08.2008. The deceased succumbed to the injuries while undergoing treatment in the said hospital on 20.08.2008 at about 12.20 p.m. Police, Tandur registered a case in Cr.No.79/2008 for the offence punishable under Section 337 IPC and thereafter filed charge sheet against the driver of the lorry for the offences punishable under Sections 304-A and 337 IPC. The deceased was aged 45 years and was hale and healthy at the time of accident and working as driver in forest department getting a salary Rs.14,000/- per month. Owing to the sudden demise of the deceased, the claimants lost their livelihood and suffered pain, mental agony and heavy loss.
6. The appellant-insurer and respondent No.5-Divisional Forest Officer filed separate counters opposing their claim and denying 4 their liability to pay the compensation. Respondent No.4- owner of the lorry remained ex parte before the Tribunal.
7. During enquiry, claimant No.1 herself examined as P.W.1 and marked Exs.A-1 to A-7. No evidence was let in by the appellant-insurer and other respondents.
8. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent act of parking of the lorry by its driver. The Tribunal held that the claimants were entitled for a total compensation of Rs.23,16,000/-. Accordingly, an award was passed for the said amount with interest at 7.5% per annum. The owner and the insurer of the lorry were held liable to pay the compensation. Challenging the said findings of the Tribnunal, the appellant- insurer preferred the present appeal.
9. Learned counsel for the appellant-insurer would contend that the Tribunal failed to consider that at the time of accident, the lorry was not in motion and it was parked on the side of the road due to puncture and there was no negligence on the part of the driver; that that the Tribunal could have considered the aspect of 5 contributory negligence, as total negligence cannot be attributed to the driver of the lorry and that the owner of the jeep, driven by the deceased, who is also employer of the deceased, is liable to the extent of Workmen's Compensation Act limits along with the insurer; that the Tribunal erred in not considering the negligence on the part of the deceased; that the Tribunal erred in awarding compensation more than the amount claimed. Learned counsel for the appellant relied on the decision of this court in ADHIKARALA JAGADEESWARA RAO v. GOPALA KRISHNA TRANSPORT, VISAKHAPATNAM AND OTHERS1.
10. Learned counsel for respondent Nos.1 to 3 submits that the Tribunal has not committed any error and the evidence, both oral and documentary, was considered in proper perspective by the Tribunal and held that there was no negligence on the part of the driver of the jeep and the accident occurred only due to the rash 1 2005(1) ALD 111 6 and negligent parking of the lorry by its driver and prayed to dismissed the appeal.
11. Thus, after hearing the submissions of both the learned counsel, the following points arise for determination:
(i) whether the appellant proved the finding of the Tribunal that the accident occurred due to the negligent act of the driver of the lorry as erroneous in law and facts and evidence on record?
(ii) whether the award of compensation by the Tribunal needs interference?
POINTS (i) & (ii):
12. A perusal of the material on record would disclose that on 17.08.2008 at about 01:15 a.m., the deceased, as driver, was proceeding from Asifabad to Bellampally in a Government jeep belonging to the forest department along with the Divisional Forest Officer, Bellampally after attending a meeting at Utnoor and when they reached near Repallewada Church, suddenly the said jeep hit the negligently stationed tipper/lorry from rear side which was parked on the middle of the road in the darkness without keeping 7 the backlights, indicators or parking lights on and without keeping any parking or warning signals like erection of red cloth flag on backside and on passing side or without making any stone or green leaves boundary of marking from some distance in around the said lorry.
13. Section 122 of the Motor Vehicles Act which deals with leaving vehicle in dangerous position reads as:
"No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers".
14. The owner of the vehicle has the right to drive the vehicle on the road and also has the right to park the vehicle, but the parking of the vehicle cannot cause any danger or obstruction to other passersby or passengers. This is a restriction on the road to park the vehicle.
15. Undisputedly, the entire material on record would nowhere disclose that the driver of the lorry while parking the same has 8 taken any precautions as stated above. The lorry was parked without any indicators or parking lights on and without keeping any parking or warning signals. The jeep, driven the deceased, hit the lorry from behind. As a result, the deceased and the DFO sitting in the car sustained grievous injuries. Having stated the mandatory requirement of law, it is held that the driver of the lorry was in breach of duty to take care and was thus negligent. In the absence of any indication by way of lights to indicate that the lorry was stationed on the road by covering a portion of the road, the accident had occurred. The time of accident is 01:15 a.m. As the driver of the jeep was proceeding on the road and could not notice the lorry that was parked on the road, the same resulted in the jeep dashing the lorry from behind. Therefore, there was negligence on the part of the driver of the lorry in parking the same on the road without any parking lights or warning signals. The Motor Vehicle Inspector's report in Ex.A-7 discloses that the lorry was in fit condition with no mechanical defect and there was no report to show that the lights of the lorry were non-functional. 9
16. On account of there being no indication whatsoever that the lorry was parked on the road during night, the driver of the vehicle who was also proceeding on the left side could not imagine or gauge or expect that there was a vehicle that was parked towards the left side of the road. In normal circumstances, the vehicle would hit the stationed vehicle parked negligently. Therefore, no negligence can be attributed to the driver of the jeep, as the lorry was stationed negligently without taking any caution. As such, the total negligence was on the part of the driver of the lorry. Thus, the driver of the lorry was totally negligent and committed the act in causing the accident and there was no composite or contributory negligence on the part of the driver of the jeep. Therefore, the driver, owner and insurer of the jeep cannot be held liable. The Tribunal had rightly held that the owner and the insurer of the lorry are liable to pay the compensation.
17. Now, coming to point No.2, it is fairly contended by learned counsel for the appellant that the deceased was a government employee working as driver and his income and age is also not disputed. It is only disputed that the owner of the jeep, driven by 10 the deceased, and the insurer i.e., respondent Nos.5 and 6 herein are jointly liable along with the appellant herein.
18. Learned counsel for the appellants submits that it is inevitable that the liability has to be worked under the Workmen's Compensation Act on the part of the employer of the deceased and also the insurer of the jeep. In view of the finding on point No.1, the contention of learned counsel for the appellant cannot be accepted.
19. The Tribunal considering the age of the deceased as 45 years added additional 30% towards future prospects to the monthly income of the deceased and calculated the income at Rs.20,410/- per month (Rs.15,700/- + Rs. 4710/- i.e., Rs.15,700/- x 30%). As there were three dependants, the Tribunal deducted one-third of the income of the deceased towards personal expenses and arrived at Rs.13,607/- per month (Rs.20,410/- minus Rs.6803/- i.e., Rs.20,410/- x 1/3) and Rs.1,63,284/- per annum (Rs.13,607/- x
12) and after applying the multiplier '14' as per the decision of the Hon'ble Apex Court in SARLA VARMA v. DELHI 11 TRANSPORT CORPORATION2, awarded compensation of Rs.22,85,976/- (Rs.1,63,284/- x 14) towards loss of dependency and the same is just and reasonable. The amounts awarded by the Tribunal i.e., Rs.10,000/- towards loss of consortium, Rs.10,000/- towards loss of estate and Rs.10,000/- towards funeral and travelling expenses are set aside.
20. In view of the decision of the Hon'ble Apex Court in NATIONAL INSURANCE COMPANY LIMITED v.
PRANAY SETHI AND OTHERS3, the claimants are entitled for compensation of Rs.70,000/- towards conventional heads i.e., Rs.40,000/- towards loss of consortium, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. Claimant Nos.2 and 3 are the children of the deceased and they are entitled for parental consortium at Rs.40,000/- each as per the decision of the Hon'ble Apex Court in MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM @ CHUHRU RAM4.
If the same is added, the compensation works out to Rs.24,35,976/- 2
2009(6) SCC 121 3 2017 ACJ 2700 4 2018 Law Suit (SC) 904 12 (Rs.22,85,976/- + Rs.70,000/- + Rs.80,000/-). However, the gross amount awarded by the Tribunal is Rs.23,16,000/-. Since the claimants have not preferred any appeal, the gross amount awarded by the Tribunal does not call for any interference.
21. For the aforesaid reasons, the appeal filed by the appellant- insurance company is dismissed. There shall be no order as to costs.
22. Pending miscellaneous petitions, if any, stand closed.
_______________________ A.SANTHOSH REDDY, J 28.10.2022 Lrkm