THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K. SUJANA
M.A.C.M.A.No.1156 OF 2010
JUDGMENT : (per Hon'ble Smt Justice K.Sujana)
Being aggrieved by the judgment dated 19.03.2010 in
O.P.No.632 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 this appeal stating that the Tribunal wrongly decided
contributory negligence on the part of deceased and prayed to grant
the relief of enhancement of compensation.
2. The appellants filed this appeal stating 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 order of Tribunal
awarding 50% of contributory negligence on part of deceased and
also to enhance the compensation.
KL, J & SKS, J
MACMA.No.1156 of 2010
2
3. Heard learned counsel appearing for appellants and learned
counsel appearing for respondents, respectively.
4. Vide impugned judgment dated 19.03.2010 in O.P.No.632 of 2007, the Tribunal awarded a sum of Rs.53,46,000/- (Rupees Fifty Three Lakhs Forty Six Thousand Only) with an interest at the rate of 7% per annum from the date of petition till realization.
5. 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 driver of lorry bearing No.AET6187 and on the part of driver of Maruti Van bearing No.AP13E9271.
6. The contention of learned counsel for appellants is that, without there being any testimony of eye witness, the Tribunal arrived at a conclusion that there was contributory negligence on the part of deceased Mohtesham Azmi (owner and driver of Maruti Van bearing No.AP13E9271). He 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 dated 19.03.2010 passed by the Tribunal awarding 50% of contributory KL, J & SKS, J MACMA.No.1156 of 2010 3 negligence on part of deceased and also to enhance the compensation.
7. 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 ?
8. For the sake of convenience, the parties are referred to as arrayed in O.P.No.632 of 2007.
9. The facts of the case as per the averments made in petition are that petitioner No.1 - Mohamed Azam is the father of 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 his wife 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 maruti 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 Van went underneath the lorry resulting in instantaneous death of both the inmates of KL, J & SKS, J MACMA.No.1156 of 2010 4 Maruti Van. Sparks came out of the van and the dead bodies got burnt. The dead body of the wife was thrown out on the road.
10. Earlier to the accident, the deceased who was aged 32 years used to do business at Jadcherla, owning rice mill, Azam Food Products Private Limited, M/s. Deccan Traders, Poultry Firms and Poultry Industry. He was also managing agriculture and earning Rs.1,50,000/- per month in all. As per the I.T. Returns for the year 2002-2003, his income was Rs.11,08,391/- and for the year 2001-2002 it was Rs.10,40,942/-. He has been contributing his entire income to the petitioners. Due to the sudden death of the deceased, the petitioners who are dependent on his income, sustained loss of income.
11. 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 contributory negligence was attributed to the deceased.
12. Basing on the pleadings, the Tribunal framed three issues. On behalf of petitioners, PWs.1 to 4 were examined and Exs.A1 to A27 KL, J & SKS, J MACMA.No.1156 of 2010 5 were marked. PW.1 is petitioner No.1, father of the deceased and 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.
13. According to the evidence of PW.1 - father of the deceased, his son was aged about 32 years who used to do business in Jadcherla by running rice mill, Azam Food Products Private Limited, M/s. Deccan Traders, Poultry Firms, Poultry Industry and agriculture, as well. He deposed that initially, the deceased established M/s. Azam Rice Mill Private Limited in the year 1997 and thereafter, changed the name of the company as M/s.Azam Food Products Private Limited and got it registered. He was one of the Directors of the company and had 49,010 shares in the said company. For the year 2000-2001 the income of the deceased was shown as Rs.1,01,580/- per annum and for the year 2001-2002 his income was shown as Rs.48,000/- per annum from Azam Food Products Private Limited, Rs.2,96,948/- from M/s.Deccan Traders, Rs.6,95,994/- from M/s.Luckky Poultry Firms, Mehidipatnam and Rs.51,250/- from agriculture. On 31.12.2002, he paid Rs.3,50,000/- as income tax for the year 2002-2003.He also got his income assessed for the year 2003-2004 and paid advance tax of Rs.3,25,000/- on 13.12.2002.
KL, J & SKS, J MACMA.No.1156 of 2010 6 The balance tax of Rs.5,630/- was paid in the month of October 2003. He was earning more than Rs.1,50,000/- per month.
14. 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 knowledge about the accident and as per the investigation, there were no eye witnessess to the accident.
15. PW.3 is the Chartered Accountant who used to file the returns of the deceased with the Income Tax Department. According to his evidence, the deceased was running various business concerns and was regularly paying income tax. As his business developed, he paid advance tax on 13.12.2002 and 28.03.2003 at the rate of Rs.30,000/- and Rs.25,000/-, respectively. He stated that the income derived by the deceased was for the complete year i.e., from March 2002 to March 2003. He prepared 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 submitted returns for the business done by the deceased which was Rs.11,82,090/- including agricultural income.
KL, J & SKS, J MACMA.No.1156 of 2010 7
16. In the cross examination, PW.3 stated that he does not have any record pertaining to the returns. However, he also stated that he certified the returns on the basis of the records brought to him. He further stated that the deceased used to supply the ledger information to him. He admitted that Ex.A16 was filed on 21.01.2004 i.e., after the death of the deceased. According to him, if the turn over is more than Rs.40,00,000/- it has to be audited by a Chartered Accountant. He further stated that he could not say the source of salary income of the deceased and he did not audit or inspect any books of accounts and has simply filed returns based on the information given to him by the assessee.
17. The evidence of PW.4 shows that his father owns a hotel at Nandigama Bus stop and he assists his father in supplying tea and running hotel. In the cross examination when it was suggested that he did not witness the accident, he stated that the accident occurred in front of his hotel. He also stated that he did not give evidence in the criminal case filed against the lorry driver.
18. 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.
KL, J & SKS, J MACMA.No.1156 of 2010 8
19. 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.
20. 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 submitted that there is no negligence on the part of lorry driver and the accident occurred due to the negligence of van driver only.
21. On going through the rival contentions and the material placed 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 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.
KL, J & SKS, J MACMA.No.1156 of 2010 9
22. At this stage, it is apt to note that 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 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.
KL, J & SKS, J MACMA.No.1156 of 2010 10
23. With regard to contributory negligence, the learned counsel appearing for appellants relied on the judgment of the Hon'ble Supreme Court in Sucheta Mishra and Others Vs. Divisional Manager National 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."
24. 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.
25. Learned counsel for appellants also relied on the decision of the Hon'ble Supreme Court in K.Anusha and Others Vs. Regional 1 2023 (2) TAC 355 KL, J & SKS, J MACMA.No.1156 of 2010 11 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 compelled to reverse the finding of the Tribunal and the High Court on the question of contributory negligence."
26. In the above extracted portion it was observed that mere failure to avoid collision by taking some extraordinary precaution does not amount to negligence.
2 2022 (2) Civil LJ 88 KL, J & SKS, J MACMA.No.1156 of 2010 12
27. 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:
"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." 3 (2022) 10 SCC 512 KL, J & SKS, J MACMA.No.1156 of 2010 13
28. In view of the above extracted portion, it is clear that strict Rules and Procedures are not applicable to the claim petitions.
29. 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 driver of the lorry bearing No.AET6187. Accordingly, point Nos.1 to 3 are answered.
30. Basing on Ex.A17 - bunch of share certificates in the name of the deceased in Azam Food Products Private Limited, Exs.A18 to A20 - electricity bills of Azam Food Products Private Limited, memorandum of articles of the said firm showing the deceased as a subscriber, certificate of incorporation for the changed name of Azam Food Products to Azam Rice Mill, pattedar passbook showing agricultural land in the name of the deceased, and Ex.A21
- the license for purchase and sale of M/s.Deccan Traders, the Tribunal came to the conclusion that the taxable income of the deceased was not uniform. Therefore, it has taken the income of the KL, J & SKS, J MACMA.No.1156 of 2010 14 deceased as more than Rs.10,00,000/- which is not disputed by the insurance company as well.
31. Further, as per Ex.A24, the date of birth of the deceased is 31.12.1970. Therefore, on the date of the accident, he was aged around 33 years old. As such, as per the principle laid by the Apex Court in National Insurance Company Limited Vs Pranay Sethi 4, 40% future prospects need to be added, which comes to (10,00,000 x 40% = 4,00,000 [10,00,000 + 4,00,000 = 14,00,000]) Rs.14,00,000/- . Out of which, 1/3rd amount has to be deducted as there are two dependants i.e., Rs.14,00,000 x 1/3rd = Rs.4,66,666/-. As such, Rs.14,00,000 - 4,66,666 = Rs.9,33,334/- was the actual loss of income. As per the Judgment of the Hon'ble Supreme Court in Sarla Verma and Others Vs Delhi Transport Corporation and another 5, the appropriate multiplier applicable in the instant case is 16. That being so, the loss of dependency comes to Rs.9,33,334 x 16 = Rs.1,49,33,344/-.
32. 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 4 (2017) 16 SCC 680 5 (2009) 6 SCC 121 KL, J & SKS, J MACMA.No.1156 of 2010 15 rendered in Smt Anjali and Others Vs. Lokendra Rathod and Others 6, the appellants 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. Accordingly, point Nos.1 to 3 are answered.
33. Thus, in view of the above discussion, the compensation awarded to the appellants under various heads are as follows:
Loss of dependency/contribution to family Rs.1,49,33,344/- 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.1,50,51,344/-
34. IN THE RESULT, the appeal is allowed. The Order And Decree dated 19.03.2010 in O.P.No.632 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.53,46,000 (Rupees Fifty Three Lakhs and Forty Six Thousand only) to Rs.1,50,51,344/- (Rupees One Crore 6 2023 SCR 439 KL, J & SKS, J MACMA.No.1156 of 2010 16 Fifty Lakhs Fifty One Thousand Three Hundred and Forty Four 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 be apportioned to the claimants in equal shares. As far as the loss of parental consortium amounts are concerned, the respective appellants 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 this appeal shall stand closed.
__________________ K. LAKSHMAN, J _______________ K. SUJANA, J Date :15.11.2023 PT