Telangana High Court
Cholamandalam M.S. General Insurance ... vs Vaddepally Laxmi on 16 April, 2024
Author: N. Tukaramji
Bench: N.Tukaramji
HONOURABLE SRI JUSTICE SUJOY PAUL
AND
HONOURABLE SRI JUSTICE N. TUKARAMJI
M.A.C.M.A. No.335 OF 2020
JUDGMENT:
(per Hon'ble Sri Justice N. Tukaramji) We have heard Mr. A. Ramakrishna Reddy, learned counsel for the appellant/respondent No.3 and Mr. Chalakani Venkat Yadav, learned counsel for the respondents/claim petitioners.
2. Aggrieved by the fastened liability and the compensation amount awarded, the respondent No.3/insuer preferred this appeal against the decree and order dated 04.12.2019 in M.V.O.P.No.302 of 2017 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-Principal District Judge, Nalgonda.
3. For convenience, the appellant and respondents are hereinafter referred to as per their array before the tribunal.
4. The claim petitioners/respondents 1 to 5 (hereinafter, ('the petitioners') filed petition seeking compensation of Rs.25 lakhs for the death of Mr.Vaddepally Bixam/deceased in a motor accident on 12.01.2017. In the claim petition it has been averred that, SP,J&NTR,J 2 Macma_335_2020 while the deceased, as driver of the lorry along with cleane/PW-2 was proceeding to Hyderabad with a load of poultry feed, in the outskirts of Gattugudem village at about 4 a.m. rammed his vehicle into a lorry bearing registration No.AP-05-TA-8539 (for short, 'the stationed lorry') which was stationed in the middle of the road without any precautionary indications. In the accident the deceased suffered fatal injuries and succumbed. Thereupon the claim petition has been filed against the parked lorry contending its negligent parking. The tribunal after perusing the materials awarded compensation of Rs.30,94,000/- with interest at 9% per annum from the date of the petition till realization against the owner and insurer of the stationed lorry.
5. In appeal, the learned counsel for the insurer contended that, on scrutiny of record, by applying the principle of res ipsa loquitor the tribunal had rightly concluded the contributory negligence of the deceased in the accident. Having recorded the contributory negligence, the tribunal ought to have apportioned the liability on both the vehicles. Consequently the insurer should have been made liable to pay compensation only to the extent of the liability fastened. Further pleaded that, the tribunal without any material erroneously believed the monthly income of the SP,J&NTR,J 3 Macma_335_2020 deceased at Rs.15,000/-, on higher side. Thus the assessment requires interference.
6. Per contra, the learned counsel for the petitioners would submit that the tribunal without any basis and substantive evidence made an observation against the deceased on contributory negligence. Therefore, the tribunal was proper in fixing the liability on the owner and insurer of the crime lorry. Furthermore, though the petitioners claimed monthly income at Rs.20,000/- as driver of a heavy goods vehicle, beyond any rationale monthly income has been restricted to Rs.15,000/-. Hence prayed for granting just compensation.
7. The submissions of learned counsel are duly considered and we have perused the material on record.
8. It is evident that the accident occurred as the deceased rammed his vehicle into the parked lorry. The tribunal considering the record observed that (a) PW-1 i.e. the wife of the deceased though not an eyewitness admitted that the lorry driven by her husband collided with another lorry, which was parked on the road side; (b) PW-2 also admitted the deceased's lorry hitting the rear portion of the other lorry; (c) the deceased could not have SP,J&NTR,J 4 Macma_335_2020 controlled the vehicle as he was driving the lorry at high speed and (d) there is no evidence showing whether the stationed lorry was properly parked with precautions and safety measures. Nonetheless, concluded that, it is a fit case to apply the doctrine of contributory negligence.
9. In the light of the indisputable facts of accident the pertinent question for inquiry should be, whether there was any rash or negligence in parking the lorry and whether there is any rash and negligence of the deceased in driving the lorry in the accident?
10. The tribunal having observed that there is no evidence available on record as to whether the lorry was parked with precautionary indicators and safety measures taken in parking the lorry, drawing assumption that the lorry was plying at a speed and recording conclusion that the deceased as driver could not control the vehicle thereby contributed for the accident, is found beyond comprehension.
11. Admittedly, at relevant time, the vehicle was plying on the road between Visakhapatnam to Hyderabad which is a National Highway. The Highways are constructed for transportation and the vehicles are permitted to run at certain speed. Thus merely SP,J&NTR,J 5 Macma_335_2020 on the ground of speed of the vehicle contributory negligence cannot be determined unless clear factor or circumstance is discernable from the materials on record. In the present case the tribunal neither read any document, at least the police record such as scene of observation report or charge sheet to comprehend the facts and circumstances in drawing inference. This being the factual position, we are unable to accept the interference set down by the tribunal as to the contributory negligence of the deceased in the accident.
12. Admittedly, the accident occurred in the early hours of January which is time before dawn of a winter day. When a vehicle is negligently parked on the road without indicators, in all contingencies, on coming vehicles may not appreciate from a reasonable range that it is a stationed vehicle even to take some precautionary move to avert the accident. In such position, recording contributory negligence against the deceased/driver of lorry would be incongruous. Consequently, the observation of the tribunal in this regard deserves to be and is accordingly expunged.
SP,J&NTR,J 6 Macma_335_2020
13. In regard to income the petitioners pleaded that as driver of the lorry the deceased used to earn Rs.20,000/- per month, but no specific proof has been placed. Howsoever by the fact that the deceased was steering the vehicle at relevant time, his avocation as driver can safely be deduced. Therefore considering the potentials including the occupational emoluments and the earnings of a driver of heavy vehicle would certainly be more than a manual labour, accepting daily wage of Rs.500/- is found reasonable. Thus, no impropriety is found in the tribunal's view in determining the notional income of the deceased. Further in assessment of compensation the tribunal had considered the future prospects at 40% and deducted the personal living expenses considering the number of dependents and the conventional heads were also granted as per the directions of the Hon'ble Supreme Court in National Insurance Company v. Pranay Sethi 1. In this position we find no error of jurisdiction in assessment of compensation amount.
14. For the aforesaid, the insurer has failed to make out any merit in the contentions raised. In effect, the appeal is liable to be dismissed.
1 (2017) 16 SCC 860 SP,J&NTR,J 7 Macma_335_2020
15. In the result, the appeal is dismissed.
As a sequel, pending miscellaneous petitions if any, stands closed.
_______________ SUJOY PAUL, J ________________ N.TUKARAMJI, J Date:16.04.2024 ccm