THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K. SUJANA
M.A.C.M.A.Nos.1155, 1514 OF 2010
AND 2283 OF 2015
COMMON JUDGMENT : (per Hon'ble Smt Justice K.Sujana)
Being aggrieved by the judgment dated 19.03.2010 in
O.P.No.631 of 2007 on the file of the XXII Additional Chief
Judge-Cum-Motor Accidents Claims Tribunal, City Civil Court,
at Hyderabad (hereinafter referred as 'the Tribunal') the
petitioners therein filed M.A.C.M.A.No.1155 of 2010 against the
decision of the Tribunal, attributing contributory negligence on
the part of deceased and prayed to grant the relief of
enhancement of compensation.
2. M.A.C.M.A.No.1514 of 2010 is filed by the New India
Assurance Company Limited challenging the quantum of
compensation awarded by the Tribunal, stating that the
Tribunal ought to have appreciated that there was no
negligence on the part of driver of insured vehicle. It was
further stated that the Tribunal ought to have seen that the
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driver of lorry was not made a party in the claim petition,
therefore, the O.P., is not maintainable.
3. M.A.C.M.A.No.2283 of 2015 is filed by the Bajaj Allianz
General Insurance Company Limited stating that the Tribunal
wrongly imposed liability on the vehicle insured by their
company and they are not liable to pay any compensation.
4. Since all the appeals arise out of the same order and the
parties are also same, they are being disposed of by this
common judgment.
5. For the sake of convenience, the appellants in
M.A.C.M.A.No.1155 of 2010 are referred to as 'claimants' and
the appellants in M.A.C.M.A.No.1514 of 2010 and
M.A.C.M.A.No.2283 of 2015 are referred to as 'Insurance
Companies'.
6. Heard learned counsel appearing for claimants and
learned counsel appearing for Insurance Companies,
respectively.
7. Vide impugned judgment dated 19.03.2010 in
O.P.No.631 of 2007, the Tribunal awarded a sum of
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Rs.16,44,000/- (Rupees Sixteen Lakhs and Forty Four
Thousand Only) with an interest at the rate of 7% per annum
from the date of petition till realization of the amount against
the Insurance Company of the lorry, as well as, the Insurance
Company of the Maruti Van.
8. On considering the entire evidence on record, both oral
and documentary, the Tribunal held that the accident occurred
due to contributory negligence on the part of the driver of lorry
bearing No.AET6187 and on the part of driver of Maruti Van
bearing No.AP13E9271. Disputing both, the liability and
quantum of compensation awarded by the Tribunal, the
respective Insurance Companies filed M.A.C.M.A.Nos.1514 of
2010 and 2283 of 2015.
9. The contention of learned counsel for claimants is that
the Tribunal erred in holding that there was contributory
negligence on the part of deceased Mohtesham Azmi (owner
and driver of Maruti Van bearing No.AP13E9271). It was
contended that the Tribunal erred in deducting 50% of the
compensation amount towards contributory negligence on the
part of deceased without any foundation or basis. Therefore,
prayed this Court to set-aside the judgment of Tribunal
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awarding 50% of contributory negligence on part of deceased
and also to enhance the compensation.
10. According to learned counsel appearing for New India
Assurance Company Limited (appellants in M.A.C.M.A.No.1514
of 2010) the Tribunal has not considered the aspect of the
driver of lorry not being made a party in the claim petition,
which is mandatory. It was contended that the Tribunal ought
to have seen that the daughters could be dependants only till
they get married. Therefore, the loss of dependency cannot be
calculated in general course. It was further contended that the
amount towards loss of dependency comes to Rs.11,43,339/-
only and not Rs.14,44,000/-.
11. Learned counsel appearing for Bajaj Allianz General
Insurance Company Limited (appellant in M.A.C.M.A.No.2283
of 2015) contended that the Tribunal directed the Company to
pay Rs.2,00,000/- under personal accident coverage to the
dependants which is erroneous as there is no negligence on the
part of the deceased. As such, prayed this Court to set aside
the impugned judgment to the extent of their contribution in
the accident.
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12. Now the points that arise for consideration are :
1. Whether the accident occurred due to contributory negligence
on the part of the driver of lorry bearing No.AET6187 and on
the part of driver of Maruti Van bearing No.AP13E9271
2. Whether the claimants are entitled for enhancement of
compensation as prayed for ?
3. To what relief ?
POINT Nos.1 to 3:
13. For the sake of convenience, the parties are referred to as
arrayed in O.P.No.631 of 2007.
14. The facts of the case as per the averments made in
petition are that petitioner No.1 - Mohamed Azam is the father
in law of the deceased, and petitioner Nos.2 and 3 are minor
daughters of the deceased. On the date of accident, the
deceased was proceeding in a Maruti Van bearing
No.AP13E9271 along with her husband, from Hyderabad to
Jadcharla after attending a matrimonial function at the house
of their relatives. When they reached near Nandigama Village, a
lorry bearing No.AET6187 came in a rash and negligent
manner and dashed against their van from opposite direction.
Due to the impact, the Maruti Van turned towards Hyderabad
side and was dragged to some distance and then the Maruti
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Van went underneath the lorry resulting in instantaneous
death of both the inmates of Maruti Van. Sparks came out of
the van and the dead bodies got burnt. The dead body of the
deceased was thrown out on the road.
15. Earlier to the accident, the deceased who was aged 26
years used to do business at Jadcherla, running a garment
factory. She was also managing agriculture and earning
Rs.20,000/- per month in all. As per the I.T. Returns for the
year 2002-2003, her income was Rs.1,13,200/- and for the
year 2001-2002 it was Rs.2,14,400/-. She has been
contributing her entire income to the petitioners. Due to the
sudden death of the deceased, the petitioners who are
dependent on her income, sustained loss of income.
16. The respondent Nos.1 and 4 remained ex parte.
Respondent No.2 - New India Assurance Company Limited, filed counter denying the averments of the petition in a general manner and contended that there was no negligence on the part of the driver of lorry. It was also contended that the driver did not have valid driving license and that the vehicle did not have insurance coverage and negligence was attributed to the deceased.
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17. Basing on the pleadings, the Tribunal framed three issues. On behalf of petitioners, PWs.1 to 4 were examined and Exs.A1 to A17 were marked. PW.1 is the grandfather of petitioner Nos.2 and 3. PW.2 is the ASI in Kuttur Police Station. PW.3, Auditor was examined to prove the income of the deceased. PW.4 is the alleged eye witness to the accident. On behalf of respondent No.2 - New India Assurance Company Limited, Ex.B1 was marked.
18. After perusing the evidence on record and after hearing both the parties, the Tribunal came to the conclusion that the accident occurred due to contributory negligence on part of the drivers of both vehicles. The Tribunal directed the respondent Nos.1 and 2 to jointly and severally pay compensation of Rs.14,44,000/- and directed the respondent No.4 to pay Rs.2,00,000/- under personal accident coverage.
19. According to the evidence of PW.4 on 31.03.2003 at about 03:00 A.M., he was supplying tea to the night shift holders. When he was returning after supplying the tea, he saw one lorry bearing No.AET6187 coming from Jedcherla side and proceeding towards Hyderabad, in rash and negligent manner KL, J & SKS, J MACMA.Nos.1155 & 1514 of 2010 and 2283 of 2015 8 at high speed and dashed to one Maruti Van beaing No.AP13E9271 which was coming from Hyderabad side and proceeding towards Jedcherla. Due to the impact, the Maruti Van turned back and the left side of its door got opened and a lady who was sitting inside fell down on the road and she became unconscious. The driver of the Maruti Van also became unconscious. He saw flames coming out near the diesel tank of lorry. He could not be of any help as he was alone and on the opposite side of the accident spot. He alerted his family members and neighbours and by the time they came to the accident spot, the flames became more and the Maruti Van which was very close to the lorry caught fire. Due to the said flames, the driver of the Maruti Van got totally burnt and the lady also received burnt injuries and died. He further deposed that the lorry was loaded with beer bottles and due to the heat, the beer bottles started busting. After one hour, the Police came to the spot and recorded his statement about the incident.
20. According to the evidence of PW.2, a case was registered based on the complaint of one Depalli Eswaraiah and the driver of the lorry surrendered before the Police. In the cross examination, he stated that he does not have any personal KL, J & SKS, J MACMA.Nos.1155 & 1514 of 2010 and 2283 of 2015 9 knowledge about the accident and as per the investigation, there were no eye witnessess to the accident.
21. Ex.A1 and Ex.A2 are the certified copies of F.I.R., and charge sheet, respectively. Both the documents show that the accident occurred in the manner as narrated and Ex.A2 does not show the name of PW.4 as witness.
22. The petitioners also filed a rough sketch of scene of accident which shows that the accident occurred in the center of the road. Basing on the above evidence and documents on record, the Tribunal came to the conclusion that the accident occurred due to the negligence of both drivers as it was in the middle of the road and both the vehicles were going from left margin of the road and the impact which turned the Maruti Van would also imply that it was also going in high-speed. The finding of the Tribunal is that there was contributory negligence on part of the deceased, as well as, the driver of lorry.
23. The contention of the claimants is that there is no negligence on the part of driver of maruti van. Per contra, learned counsel for New India Assurance Company Limited KL, J & SKS, J MACMA.Nos.1155 & 1514 of 2010 and 2283 of 2015 10 submitted that there is no negligence on the part of lorry driver and the accident occurred due to the negligence of van driver only.
24. On going through the rival contentions and material on record, it is seen that F.I.R., under Ex.A1 was lodged with Police on the basis of written complaint by one Depalli Eswaraiah. The accident took place at about 03:00 A.M. The Investigating Officer, after due investigation, filed charge sheet stating that the accident occurred due to negligent driving of the driver of lorry and a criminal case was also filed against him and he was tried for the said offence.
25. Further, the contention of claimants is that without there being any evidence on record, the Tribunal decided that the accident occurred due to contributory negligence and the same is against the settled principles of law. In support of the above stated contentions, learned counsel appearing for claimants relied on the judgment of the Hon'ble Supreme Court in Sucheta Mishra and Others Vs. Divisional Manager National KL, J & SKS, J MACMA.Nos.1155 & 1514 of 2010 and 2283 of 2015 11 Insurance Company Limited 1. The relevant paragraph No.5 reads as under:
"5. In a matter of the present nature where we note that PW-3 is stated to be the eye witness to the accident and other witnesses were only the claimants who were not at the spot of the accident, the version of PW-3 ought to have been accepted. Be that as it may, it is not in dispute that on investigation the charge sheet has been filed against the rider of the offending vehicle. Therefore, the conclusion reached by the MACT only on the ground that it is an head on collision and therefore 50% of negligence is to be attributed to the deceased is not justified. To that extent, we set aside the finding rendered by the MACT and hold that the rider of the offending vehicle was alone negligent in causing the accident. Hence, the appellants would be entitled to the entire compensation to be determined."
26. From the above extracted portion it is noted that merely on the ground of head on collision, it cannot be held that there is contributory negligence on the part of the deceased. 1 2023 (2) TAC 355 KL, J & SKS, J MACMA.Nos.1155 & 1514 of 2010 and 2283 of 2015 12
27. Learned counsel for claimants also relied on the decision of the Hon'ble Supreme Court in K.Anusha and Others Vs. Regional Manager, Shriram General Insurance Company Limited 2. The relevant paragraph No.13 reads as under:
"13. Therefore, the entire reasoning of the High Court on Issue No. 1 is riddled with inherent contradictions. To establish contributory negligence, some act or omission, which materially contributed to the accident or the damage, should be attributed to the person against whom it is alleged.
In Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak2 this Court quoted a decision of the High Court of Australia in Astley v. Austrust Ltd.3, to hold that "...where, by his negligence, one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence, if that other acts in a way which, with the benefit of hindsight is shown not to have been the best way out of the difficulty". In fact, the statement of law in Swadling v. Cooper4, that "...the mere failure to avoid the collision by taking some extraordinary precaution, does not in itself constitute negligence...", was also quoted with approval by this Court. Therefore, we are 2 2022 (2) Civil LJ 88 KL, J & SKS, J MACMA.Nos.1155 & 1514 of 2010 and 2283 of 2015 13 compelled to reverse the finding of the Tribunal and the High Court on the question of contributory negligence."
28. In the above extracted portion it was observed that mere failure to avoid collision by taking some extraordinary precaution does not amount to negligence.
29. It is noticed that the evidence of PW.4 was simply discarded by the Tribunal stating that he was not cited as witness in the charge sheet and the same is not tenable. In this regard, keeping in view the decision of the Hon'ble Supreme Court in Janabai WD/o Dinkarrao Ghorpade Vs. ICICI Lambord Insurance Company Limited 3 we are of the opinion that the Tribunal has decided the issue as if it was dealing with criminal trial and ignoring that the petition filed before it was a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, for grant of compensation to the victims and their legal representatives which is a piece of welfare legislation deals with providing relief to the persons who suffered injuries in the motor vehicle accidents. The relevant paragraph No.11 of the judgment reads as under:
3
(2022) 10 SCC 512 KL, J & SKS, J MACMA.Nos.1155 & 1514 of 2010 and 2283 of 2015 14 "11. We find that the rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Section 166 of the Motor Vehicles Act, 1988 which is summary in nature. There is no reason to doubt the veracity of the statement of Appellant 1 who suffered injuries in the accident. The application under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial. We find that the entire approach of the High Court is clearly not sustainable."
30. In view of the above extracted portion, it is clear that strict Rules and Procedures are not applicable to the claim petitions.
31. In view thereof, in the present case, the Tribunal erred in concluding that there is contributory negligence on the part of the deceased also without there being any evidence on record and without considering the documents marked under Exs.A1 and A2. The Tribunal also erred in discarding the evidence of PW.4 an eye witness. Therefore, the finding of the Tribunal that there is contributory negligence on the part of deceased is erroneous and the same is hereby set aside. Therefore, it can be concluded that the accident occurred due to negligence of KL, J & SKS, J MACMA.Nos.1155 & 1514 of 2010 and 2283 of 2015 15 driver of the lorry bearing No.AET6187. Accordingly, point Nos.1 to 3 are answered.
32. The evidence of PW.1 who is father in law of deceased is that the deceased was aged about 26 years at the time of the accident and used run a garment factory. She was also managing agriculture and earning Rs.20,000/- per month in all. PW.3 is the Auditor whose evidence is that the deceased was their client and she has been paying income tax regularly and as her business developed, she has also paid advance tax on 07.11.2002, 13.12.2002 and 28.03.2003 at the rate of Rs.55,000/-. The income derived by the deceased was for the complete year i.e., from March 2002 to March 2003. He also stated that he prepared the balance sheet, capital account, profit and loss account of all the firms and declared the entire income of the deceased to the Income Tax Department and also submitted returns for the business done by her which was Rs.2,73,840/- including agricultural income which is her net income.
33. Learned counsel for respondent No.2 in O.P., contended that the income of the deceased as shown in the Income Tax Returns shall not be accepted as the source of the said income KL, J & SKS, J MACMA.Nos.1155 & 1514 of 2010 and 2283 of 2015 16 was not proved. It was also contended that the return for the year 2003 was filed after the death of the deceased. On perusal it was noticed that the advance tax was paid by the deceased prior to her death. Ex.A17 is the Share Certificate in the name of the deceased in Azam Food Products Private Limited. Basing on the same the Tribunal came to the conclusion that Rs.2,00,000/- is the annual income of the deceased. Out of the said income, 1/3rd was deducted towards personal expenditure. Then Rs.1,33,334/- was decided as loss of future income to the petitioners. As per Ex.A16 the date of birth of the deceased is 23.08.1975. The date of accident is 31.03.2003. Therefore, the deceased was aged 27 years on the date of the accident.
34. As per the Judgment of the Hon'ble Supreme Court in Sarla Verma and Others Vs Delhi Transport Corporation and another 4, the appropriate multiplier applicable in the instant case is 17. As the deceased was aged about 27 years as on the date of accident, 40% future prospects need to be added as per the principle laid by the Apex Court in National 4 (2009) 6 SCC 121 KL, J & SKS, J MACMA.Nos.1155 & 1514 of 2010 and 2283 of 2015 17 Insurance Company Limited Vs Pranay Sethi 5. Therefore, the claimants are entitled to Rs.2,00,000 + 80,000 (future prospects) = Rs.2,80,000/-. Out of which 1/3rd amount has to be deducted as there are two dependants i.e., Rs.2,80,000 x 1/3rd = Rs.93,333/-. As such, Rs.2,80,000 - 93,333 = Rs.1,86,667/- was the actual loss of income. The relevant multiplier being 17, the loss of dependency comes to Rs.1,86,667 x 17 = Rs.31,73,339/-
35. Further, the Tribunal has not awarded any amount under the heads of 'Loss Of Estate' and 'Funeral Expenses' as per the judgment of Pranay Sethi (supra). In addition to that, as per the judgment rendered in Smt Anjali and Others Vs. Lokendra Rathod and Others 6, the claimants are also entitled to Rs.44,000/- each, under the head of 'Parental Consortium' as appellant Nos.2 and 3, namely, Ms.Tameenma Azmi and Ms.Sameena Azmi are daughters of the deceased.
36. Thus, in view of the above discussion, the compensation awarded to claimants under various heads are as follows: 5
(2017) 16 SCC 680 6 2023 SCR 439 KL, J & SKS, J MACMA.Nos.1155 & 1514 of 2010 and 2283 of 2015 18 Loss of dependency/contribution to Rs.31,73,339/- family Parental Consortium to appellant No.1 Rs.44,000/- Parental Consortium to appellant No.2 Rs.44,000/-
Loss of Estate Rs.15,000/-
Funeral expenses Rs.15,000/-
Total Compensation Rs.32,91,339/-
37. IN THE RESULT, M.A.C.M.A.No.1514 of 2010 is
dismissed and M.A.C.M.A.Nos.1155 of 2010 and 2283 of 2015 are allowed. The Order And Decree dated 19.03.2010 in O.P.No.631 of 2007 passed by the XXII Additional Chief Judge - Cum - Motor Accidents Claims Tribunal, City Criminal Court, at Hyderabad, is modified, enhancing the compensation from Rs.16,44,000/- (Rupees Sixteen Lakhs Forty Four Thousand Only) to Rs.32,91,339/- (Rupees Thirty Two Lakhs Ninety One Thousand Three Hundred and Thirty Nine only) with interest @ 7% per annum thereon from the date of petition till realization. The owner and Insurance Company of lorry bearing No.AET6187 are jointly and severally liable to pay the said compensation. As such, the compensation amount shall KL, J & SKS, J MACMA.Nos.1155 & 1514 of 2010 and 2283 of 2015 19 be apportioned to the claimants in equal shares. As far as the loss of parental consortium amounts are concerned, the respective claimants alone are entitled to receive from out of the above said total compensation. The owner and insurer of lorry bearing No.AET6187 are directed to deposit the above said amount with interest and costs, after deducting the amount which was already deposited, within one month from the date of receipt of certified copy of this judgment. No order as to costs.
Miscellaneous applications, if any, pending in these M.A.C.M.As, shall stand closed.
__________________ K. LAKSHMAN, J _______________ K. SUJANA, J Date :15.11.2023 PT