Andhra Pradesh High Court - Amravati

Davala Sesha Mahalakshmi 4 Ors vs Abdula Salam 5 Ors on 2 December, 2022

Bench: U.Durga Prasad Rao, V.Sujatha

       HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
                         AND
          HON'BLE SMT. JUSTICE V. SUJATHA

                      MACMA No.2211 of 2011

JUDGMENT: (Per Hon'ble Sri Justice U. Durga Prasad Rao)

      Aggrieved by the order dated 21.03.2011 in M.V.O.P.No.591/

2007 passed by the learned Motor Accidents Claims Tribunal-cum-

Principal District Judge, West Godavari, Eluru dismissing the O.P.,

the claimants filed the instant appeal.


2.    The claimants are the wife, children and parents of the

deceased D.Kesava Rao. Their case is that the deceased was working

as an Engineer in ITC company and getting monthly salary of

Rs.34,875/- and he was offered a post of Assistant General Manager

in Delta Paper Mills, Vendra at West Godavari.          While so, on

17.12.2006, when the deceased was driving his Maruhti zen car

bearing registration No.AP 28BD 9629 from Hyderabad to Vendra

along with other inmates and when the Car reached Patangi village on

NH road, he found a Navata Transport lorry bearing registration

No.AP-7T-4869 was proceeding in front of him and the deceased

gave signals and horn to the said vehicle in order to overtake the said
                                    2




vehicle and the driver of the said vehicle had first slowed down the

vehicle and when the deceased was overtaking the said Navata

Transport lorry, in the meanwhile, the driver of the said lorry

suddenly raised his speed and drove the lorry in a rash and negligent

manner and hit the rear side bumper of the Maruthi zen car. As a

result the deceased lost control over the car and hit the backside of the

stationed lorry bearing registration No.AP-29U-1134. Thereby the

Maruthi zen car was totally damaged and the deceased received fatal

injuries and died instantaneously. The occupants of the Maruthi zen

car also received injuries.     On these pleas, the claimants filed

M.V.O.P.No.591/2007 against the respondents 1 to 3 and 6, who are

the driver, owner, Manager and insurer of the Navata Transport lorry

bearing No.AP-7T-4869 and also against the respondents 4 and 5 who

are the driver and owner of the stationed lorry bearing registration

No. AP-29U-1134. The respondent No.6 is the insurer for the said

lorry also. The claimants claimed Rs.30,65,000/- as compensation.

The respondents 1 to 5 remained ex parte and the 6th

respondent / Insurance Company contested the O.P. on the main

ground that the deceased himself was responsible for the accident but

not the drivers of both the lorries.

During trial, PWs 1 to 3 were examined and exhibits A1 to A10

were marked on behalf of the claimants, whereas the 6th respondent

examined RWs 1 and 2 and produced exhibits B1 to B4. PW2 is an

eye witness as he was travelling along with the deceased in the Car.

He deposed before the Tribunal as if the drivers of both the lorries

were responsible for the accident. However, the police during

investigation recorded his statement under Sec.161 Cr.PC wherein he

stated as if the deceased / car driver drove the car in a rash and

negligent manner and dashed on the backside of the stationed lorry

and as such he was responsible for the accident. In the cross

examination, he admitted that he was examined by the police while he

was undergoing treatment in Kamineni Hospital, Hyderabad and the

contents of the statement recorded by the police are correct. Having

regard to the dichotomy between his evidence and his earlier

statement and in view of his admission regarding the correctness of

his earlier statement, the Tribunal held that the accident was occurred

due to the fault of the deceased himself. In view of the said finding,

though the Tribunal assessed the compensation to Rs.23,15,500/-,

however, dismissed the claim on the ground that the deceased himself

was responsible for the accident.

Hence, the MACMA.

3. Heard Sri Posani Venkateswarlu, Senior Counsel representing

Sri B.Yuvraj, learned counsel for the appellants / claimants and Sri

P.Suri Babu, Standing Counsel for 6th respondent-Insurance

Company.

4. While severely fulminating the judgment of the lower Tribunal,

learned Senior Counsel argued that the Tribunal committed serious

blunder in accepting the Sec.161 Cr.P.C statement of PW2-eye

witness-cum-injured to come to conclusion that the deceased drove

the car in a rash and negligent manner and committed the accident.

Learned Senior Counsel would submit that Sec.161 Cr.P.C. statement

of PW2 cannot be treated as a substantive piece of evidence in the

MVOP much less in the related criminal case itself. It is only the

previous statement of PW2 during the investigation in criminal

proceedings. Therefore, the said statement cannot be taken as a sole

basis to plunge into the conclusion that the deceased himself was

responsible for the accident. He would further submit that in view of

the divergent versions of PW2 i.e., one during the investigation stage

of the crime and another during the trial in MVOP No.591/2007, at

best the Tribunal ought to have discarded his evidence and looked

into other reliable evidence to decide the issue as to whether the lorry

drivers were at fault or the deceased being the driver of the car,

himself was responsible for the accident. Learned counsel further

argued that if the evidence of PW2 is omitted for the reason as stated

supra, what is available is Ex.A4-Rough sketch showing location of

the vehicles immediately after the accident. Of course, the evidence

of RW2 - driver of the Navata Transport lorry bearing registration

No.AP-7T-4869 is also available on record. Referring to Ex.A4-

Rough sketch and the evidence of RW2, learned counsel would argue

that admittedly the accident was occurred on NH9 highway which is a

double road, and according to RW2, the deceased sought to overtake

his lorry and he gave signal with his right hand allowing Maruti Zen

Car to overtake him. Then referring to Ex.A4-Rough sketch, learned

Senior Counsel would submit that after accident, all the vehicles were

placed on the extreme left side of the road leaving wide margin to

their right side. Then learned Senior Counsel would submit that as

per the Motor Vehicles Driving Regulations, when a vehicle is

overtaken by another vehicle, the driver of the vehicle whose vehicle

is being overtaken shall not increase speed so as to impede the

overtaking vehicle's safe return to the left lane. Then again referring

to Ex.A4-sketch, learned Senior Counsel would submit that if really

the lorry driver maintained the lower speed than the speed of

overtaking car and remained himself on the extreme left side of the

road till the car returned to the left side of the road safely, the

accident would not have occurred. On the other hand, RW2-Lorry

driver on one hand indicated car driver to overtake him and while the

car, after overtaking lorry, was about to turn to the left side, increased

the speed of the lorry and thereby, in such awkward situation, the car

driver lost control and hit the front bumper of the offending lorry and

went and hit the backside of the stationed lorry. However, without

considering these aspects which are emanating from the record, the

Tribunal simply carried away by the Sec.161 Cr.P.C statement of

PW2 and the final report filed by the police before the Criminal Court

and held as if the deceased / car driver was guilty of the accident and

dismissed the MVOP. He thus prayed to allow the appeal and set

aside the impugned judgment and award compensation to the

claimants.

5. Per contra, learned Standing Counsel for 6th respondent -

Insurance Company while supporting the order of the lower Tribunal

argued that PW2 categorically admitted that the police have recorded

his statement and contents of the said statement are correct. Learned

counsel would submit that in his Sec.161 Cr.P.C. statement which

was recorded within short time after accident, PW2 has clearly stated

that the driver of the car in which PW2 was travelling, drove the car

in a rash and negligent manner and while overtaking the Navata

Transport Lorry, hit its front bumper and also went ahead and dashed

on the rear side of a stationed lorry. The statements of other injured

witnesses were also in similar lines and therefore, the police after

investigation concluded that the deceased / car driver was responsible

for the accident and ultimately filed the final report before the

concerned Magistrate Court. The Tribunal has rightly considered the

evidence available on record and it came to conclusion that the

deceased was responsible for the accident and ultimately dismissed

the O.P. There is no legal flaw in the impugned order. He thus

prayed to dismiss the appeal.

6. Points for consideration are:

(1) Whether the deceased being the driver of Maruti zen car

was at fault or the drivers of Navata Transport Lorry bearing

registration No.AP-7T-4869 and stationed lorry bearing No.AP-29U-

1134 were at fault in the accident ?

(2) If point No.1 is held in favour of claimants, whether they

are entitled to compensation and if so, what amount ?

7. POINT No.1: We gave our anxious consideration to the

arguments of either side. PW2 is the injured eye witness as he

travelled in the ill-fated car along with the deceased. During trial he

deposed that when their car passed Chowtuppal, they noticed Navata

Transport lorry was going in front of their car towards Vijayawada.

D. Kesava Rao, the driver of the car tried to overtake the Navata

Transport lorry by blowing horn and giving the indications and the

car had overtaken and proceeding towards left side. At that time, the

driver of Navata Transport Lorry instead of slowing down the lorry,

increased the speed and hit the backside of the car, due to which the

car was forced to go towards its further left side and hit a stationed

lorry which was standing partially on the road. PW2 further stated

that due to impact of the hit the driver of the car was fatally injured

and died on the spot, whereas himself (PW2) and two others received

grievous injuries. He avouched that the accident was occurred

entirely due to rash and negligent driving by the driver of the Navata

Transport Lorry and also the negligence on the part of the driver of

the stationed lorry.

(a) Be that as it may, during investigation of crime relating to

the accident, PW2 was examined in Kamineni Hospital, Hyderabad

and his statement was recorded, wherein he stated as if the car driver

was responsible for the accident. Accordingly, police filed final

report in the Magistrate Court. The statement of PW2 is produced

along with Ex.B3-final report in the Tribunal. During cross-

examination of PW2, he admitted that his statement was recorded by

the police in Kamineni Hospital, Hyderabad and contents of the

statement recorded by the police are correct. In view of inconsistency

between his evidence and his previous Sec.161 Cr.P.C statement, the

Tribunal discarded his evidence and mainly relied upon the final

report and held as if the car driver was responsible for the accident

and dismissed the O.P. After perusal of the entire record, we are

unable to accept the finding of the lower tribunal.

8. As rightly argued by Sri Posani Venkateswarlu, learned Senior

Counsel for appellants, statement of a witness U/Sec. 161 Cr.P.C is

not a substantive evidence and its utility is very limited i.e., it can be

used for contradicting the witness if he gave evidence in the

concerned criminal proceedings. However, Sec.161 Cr.P.C statement

itself cannot be treated as a substantive piece of evidence. In the

instant case the truth is that PW2 has given divergent versions

regarding the cause of accident i.e., in his evidence before the

Tribunal he deposed as if the lorry drivers were responsible for the

accident, whereas in his statement before the police he stated as if the

car driver was responsible for accident. It is true that basing on the

said statement of PW2 and other witnesses, the police filed final

report stating that the car driver was at fault. In our view Sec.161

statement of PW2 and Ex.B3-final report alone cannot be taken to

decide the guilt of any particular driver in the MVOP. We have to

look into the entire evidence placed before the Tribunal to decide the

issue.

(a) PW2 is concerned, since he presented two divergent

versions, his evidence has to be discarded for lack of consistency.

Then we have to look into the Ex.A4-rought sketch of scene of

offence and also the evidence of RW-2-driver of Navata Transport

lorry who was examined by the insurance company. When both of

them are conjunctively studied, we will find, in the cross examination

of RW-2 he admitted that before accident the Maruthi zen car was

proceeding from Hyderabad towards Vijayawada and he gave signal

with his right hand allowing the Car to overtake him and accordingly

Maruthi zen car overtook his lorry. He of course, denied the

suggestion that due to his rash and negligent driving the accident was

occurred.

(b) Then Ex.A4 shows that immediately after the accident all

the vehicles were located on the extreme left side of the road leaving

a wide margin towards their right side. So, a conjunctive study of the

evidence of RW-2 and Ex.A-4 would show that when the Navata

Transport lorry driver was proceeding on his left side and on seeking

Maruthi zen car coming behind him seeking to overtake the lorry, the

lorry driver gave signal to the car driver to overtake. Be that as it

may, regulation No.14(9) of the of Motor Vehicles (Driving)

Regulations, 2017 reads thus:

"14((9) If a vehicle is overtaking another vehicle, the driver of the vehicle being overtaken shall not increase its speed or impede the overtaking vehicle's safe return to the left lane."

evidence available on record, a doubt would arise, if driver of Navata

transport lorry followed above regulation and maintained a slow

speed than the car to enable it to return to the left side safely, whether

there was an occasion for the car to go to its extreme left side and hit

its front stationed lorry. Thus the principle of res ipsa loquitur which

can be pressed into service from the evidence of RW2 and Ex.A4,

would show that unless the lorry driver committed some act of rash

and negligence, the accident would not have happened and the car

driver might have passed both the vehicles and proceeded safely. It

must be noted at this juncture that it is nobody's case that while the

car was overtaking the Navata transport lorry, some vehicle was

coming from the opposite side and observing the same, the car driver

hurriedly tried to return to the left side lane and in that process went

and dashed the stationed lorry. So in the present scenario, in our view,

the principle of res ipsa loquitur can be pressed into service. The

Hon'ble Apex Court in Shyam Sunder v. The State of Rajasthan's1

case discussed about the application of res ipsa loquitur. It observed

thus:

"10. The maxim is stated in its classic form by Erle, CJ: Scott Vs.

London & St. Katherine Docks (1865) 3 H & C 596, 601:

...Where the thing is to shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

(d) Applying the above principle to the present case, the

facts would show that admittedly the lorry driver gave signal to the

car driver to overtake him. Then as per Regulation No.14(9) it is the

duty of the lorry driver to slow down his vehicle to enable the car to

AIR 1974 SC 890 = MANU/SC/0208/1974

completely overtake him and to safely return to its left side. Unless

the lorry driver increased the speed of his vehicle, in normal

circumstances there was no occasion for the car driver to swerve to

his left side and hit the front bumper of the said lorry and move

forward and hit the stationed lorry. Therefore, though RW2-lorry

drier deposed as if the car driver was responsible for the accident, the

circumstances clearly depict that the lorry driver contributed for the

said accident. Of course, there may be some amount of fault on the

part of the car driver also in the sense that when the lorry driver

increased his speed suddenly, the car driver, instead of overtaking the

said vehicle and going towards left side, ought to have slowed down

his vehicle and remained on his right side so as to avoid hitting the

over speeding lorry.

(e) Thus in the entire episode we find that both Navata

transport lorry driver as well as deceased car driver were responsible

for the accident and their liability is 50:50. However, the driver of

the stationed lorry cannot be held liable.

This point is answered accordingly.

9. POINT No.2: In view of finding in Point No.1 we hold that the

claimants are entitled to compensation. The quantum of

compensation is concerned, we noticed that the Tribunal has correctly

assessed the compensation at Rs.23,15,500/- and hence we confirm

the said amount. Since the deceased contributed by 50% in the

resultant accident, the claimants are entitled to only half of the

aforesaid amount i.e., Rs.11,57,750/- with proportionate costs and

interest @ 7.5% p.a. The respondents 1 to 3 who are the driver,

owner and operator of the offending Navata transport lorry bearing

registration No.AP-7T-4869 are liable to pay the aforesaid

compensation. Consequently respondents 4 to 6 are found not liable

to answer the claim.

10. In the result:

(i) MACMA No.2211 of 2011 is partly allowed and the

order in MVOP No.591/2007 passed by MACT-cum-

Principal District Judge, West Godavari at Eluru is set

aside and the claimants are held entitled to compensation

of Rs. 11,57,750/- with proportionate costs and simple

interest at 7.5% p.a from the date of MVOP till the date

of realization.

(ii) Respondents 1 to 3 in the above O.P are directed to

deposit the compensation amount within two months

from the date of this judgment, failing which claimants

will be at liberty to take out execution against them.