Kuntru Dayamani Another vs Bollam Ramana 2 Others
2022 Latest Caselaw 7287 AP

BVLNC                                                   MACMA 390 of 2016
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         THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI


                         M.A.C.M.A. No.390 OF 2016



JUDGMENT:

This appeal is preferred by the claimants challenging the

award dated 02.11.2015 passed in M.V.O.P.No.20 of 2014 on the file of

Motor Accidents Claims Tribunal-cum-I Addl. District Judge, East

Godavari at Rajahmundry, wherein the Tribunal while partly allowing

the petition, awarded compensation of Rs.1,82,000/- with interest @

6% p.a., from the date of petition till the date of realisation to the

petitioners for the death of the deceased Kuntru Babu Vijay Kumar.

2. For the sake of convenience, the parties are arrayed as

referred in the lower Court.

3. As seen from the record, originally, the petitioners filed an

application U/s 166 of Motor Vehicles Act, 1988 (for brevity "the Act")

claiming compensation of Rs.9,00,000/- on account of the death of the

deceased in a road traffic accident occurred on 25.12.2012 at 2.00

p.m., near Padmavathi Stone Crusher, Tirumali Village, Yeleswaram

Mandal while the deceased was travelling on Bajaj Pulsar motor cycle BVLNC MACMA 390 of 2016 Page 2 of 11 Dt: 22.09.2022

bearing No.AP 5BS 0913 as a pillion rider from Baljipadu Village to

Kakinada, under the jurisdiction of Yeleswaram Police Station.

4. The facts of the case, in brief, are that on 25.12.2012 the

deceased was travelling on a motor cycle bearing No.AP 5BS 0913 as a

pillion rider from Baljipadu Village to Kakinada and reached near

Padmavathi Stone Crusher of Tirumali Village and at that time a lorry

bearing No.AP 5Y 7299 was driven by its driver/1st respondent in a

rash and negligent manner with high speed. The friend of the

deceased was riding the motor cycle on the left side road margin slowly

by taking all precautions and the friend‟s wife of the deceased, who

travelled on the motor cycle got down from the same and stood by the

road side, but the driver of the lorry lost control over the same and

dashed the motor cycle of the friend of the deceased in a negligent

manner, as a result of which the deceased, Duli Luka Babu (another

deceased) and wife of Luka Babu by name Syamala sustained grievous

injuries. The deceased K.Babu Vijay Kumar and his friend Luka Babu

died on the spot. On receipt of information, Yeleswaram Police

registered FIR in Cr.No.141/2012 u/s 304 (A) of IPC against the driver

of lorry.

5. Before the Tribunal, the respondents 1 and 2 were set

exparte. The 3rd respondent-insurance company filed counter resisting BVLNC MACMA 390 of 2016 Page 3 of 11 Dt: 22.09.2022

while traversing the material averments with regard to proof of age,

avocation, monthly earnings of the deceased, manner of accident, rash

and negligence on the part of the driver of the offending lorry and

liability to pay compensation and contended that the driver of the lorry

was not having valid and effective driving licence at the time of

accident. Three persons were travelling on the motor cycle and the

driver of the motor cycle was not driving the vehicle as per traffic rules.

The driver, owner and insurer of the motor cycle are proper and

necessary parties to prove contributory negligence and the petition is

bad for non-joinder of proper and necessary parties. The liability is to

be apportioned between the owners and insurers of both the vehicles.

The petitioners are entitled to interest not exceeding 6% p.a.,

6. On the strength of the pleadings of both parties, the

Tribunal framed the following issues:

1. Whether the accident was occurred due to rash and negligent driving of 1st respondent of the lorry bearing No.AP 5Y 7299?

2. Whether the petitioners are entitled for claim of compensation? If so what amount and against which of the respondents?

3. To what relief?

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7. To substantiate their claim, the petitioners examined

P.Ws.1 and 2 and got marked Exs.A1 to A5. On behalf of 3rd

respondent, no witness was examined, but Ex.B1 policy copy was

marked with consent.

8. The Tribunal, taking into consideration the evidence of

P.Ws.1 and 2, coupled with Exs.A1 to A5 and Ex.B1, held that the

petitioners are able to prove that the offending vehicle-lorry was being

driven by the 1st respondent in a rash and negligent manner, but the

circumstances also reveal that either the deceased or another deceased

Luka Babu must have contributed their part of negligence in causing

the accident and awarded a compensation of Rs.1,82,000/- with

interest @ 6% p.a., from the date of petition till realisation with

proportionate costs, fixing the liability on both the deceased and

respondents 1 to 3 jointly and severally at 50% : 50%.

9. The plea of the insurance company is that the driver of the

lorry was not having valid and effective driving licence at the time of

accident, there was triple-riding on the motor cycle on which the

deceased was travelling as one of the pillion riders, the driver, owner

and insurer of the motor cycle are proper and necessary parties and

the petition bad for non-joinder of proper and necessary parties and BVLNC MACMA 390 of 2016 Page 5 of 11 Dt: 22.09.2022

the liability is to be apportioned between the owners and insurers of

lorry and motor cycle.

10. The contention of the appellants/claimants is that the

Tribunal erred in awarding meagre compensation amount of

Rs.1,82,000/- only though the appellants are entitled for total

compensation of Rs.9,00,000/- as claimed by them in their claim

petition and that the deceased was aged 21 years and he was working

as Security Guard at More Super Market, Kakinada and drawing

monthly salary of Rs.7,000/- and entire family depend on the income

of the deceased.

11. Another contention of the appellants is that the Tribunal

failed to appreciate the evidence of P.W.2, who was an eye witness to

the accident, who categorically deposed that the friend of the deceased

stopped his motor vehicle in the left side margin and therefore, the

finding of the Tribunal about the contributory negligence is not correct

and thereby deducting 50% of the compensation towards contributory

negligence is not correct.

12. The learned counsel for the insurance company submitted

arguments stating that the Tribunal did not commit any irregularity

while fixing the income of the deceased or in deciding the contributory BVLNC MACMA 390 of 2016 Page 6 of 11 Dt: 22.09.2022

negligence committed by the deceased and as such there are no

grounds to interfere with the findings of the Tribunal.

13. The case of the claimants is that the accident was

occurred on 25.12.2012 at about 2.00 p.m., on account of rash or

negligent driving of the 1st respondent-driver and he drove the lorry in

a rash or negligent manner when the friend of the deceased stopped

his motor cycle in the left side road margin by taking all precautions.

14. The Tribunal after considering the evidence of P.W.2, who

is an eye witness to the occurrence of accident, who was travelling on

the motor cycle along with the deceased, observed that the friend of

the deceased was driving the motor cycle in the left side road margin

and the lorry was coming with high speed and lost control over the

lorry and dashed the motor cycle which was stationed on the left side

road margin and as a result the friend of the deceased as well as the

deceased sustained injuries and both of them died on the spot and

P.W.2 also sustained grievous injuries. The Tribunal held that the

accident was occurred due to rash or negligent driving of the lorry by

the lorry driver. The contention of the insurance company is that

three persons were travelling on the motor cycle at the time of

occurrence of accident. The evidence of P.W.2 shows that at the time

of accident the friend of the deceased stopped his motor cycle on the BVLNC MACMA 390 of 2016 Page 7 of 11 Dt: 22.09.2022

road side margin and standing there. So, the contention of the

insurance company that three persons were travelling on the motor

cycle on the road at the time of accident is not correct. P.W.2 denied

the suggestion of the insurance company in the cross-examination

about contributory negligence as contended by the insurance

company. P.W.2‟s evidence goes to show that the friend of the

deceased stepped down from the vehicle already and stopped the same

in the left side road margin. The lorry came with a high speed and

dashed the motor cycle and as a result the friend of the deceased as

well as the deceased died on the spot as they were standing by the side

of the motor cycle and P.W.2 also sustained injuries. Therefore, the

finding of the Tribunal that there was also negligence either on the

part of the friend of the deceased, driver of the motor cycle or the

deceased is not correct. Admittedly, the 3rd respondent-insurance

company did not adduce any contra evidence in support of their theory

of contributory negligence. In view of the above facts and

circumstances, the deduction of 50% from the compensation amount

towards contributory negligence on the part of the deceased shall be

held as not correct.

15. The Tribunal did not consider the case of the claimants

about the income of the deceased as Security Guard and fixed the BVLNC MACMA 390 of 2016 Page 8 of 11 Dt: 22.09.2022

same at Rs.3,000/- p.m., as notional income in the absence of

evidence in support of the contention of the claimants and fixed the

notional income at Rs.36,000/- p.a., Admittedly, the deceased was a

bachelor at the time of his death. Therefore, the Tribunal considering

the judgment of the Hon‟ble Apex Court in Sarala Verma and others

vs. Delhi Transport Corporation and another1 deducted 50% of the

income towards his personal and living expenses and held that the

income of the deceased that would have contributed to his family

comes to Rs.18,000/- and applied multiplier „18‟ fixing his age at 21

years and arrived at Rs.3,24,000/-. The Tribunal deducted an amount

of Rs.1,62,000/- towards contributory negligence, which I held as in

correct.

16. As stated supra, the Tribunal fixed the income of the

deceased at Rs.3,000/- on notional basis on the ground that the

claimants did not produce any evidence to prove the income of the

deceased at the relevant point in time. The contention of the claimants

is that the deceased was working as a Security Guard in a Super

Market at the relevant point in time and was earning Rs.7,000/- p.m.,

towards salary. Admittedly, the accident was occurred in the year

2012. The deceased was aged about 21 years at the time of accident.

2009 ACJ 1298.

 BVLNC                                                       MACMA 390 of 2016
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Considering these circumstances, I am of the opinion that the notional

income of the deceased can be fixed at Rs.4,000/- p.m., instead of

Rs.3,000/- p.m., considering the fact that the accident was occurred in

the year 2012. Therefore, his annual income would be at Rs.48,000/-

and 50% shall be deducted towards his personal and living expenses

as the deceased was a bachelor. Hence, his annual contribution would

be at Rs.24,000/-. The age of the deceased was 21 years at the time of

accident. Hence, the multiplier „18‟ shall be applied. Therefore, the

amount towards loss of dependency would be at Rs.4,32,000/-. The

Tribunal awarded Rs.10,000/- towards funeral expenses and

Rs.10,000/- towards loss of love and affection. In the above facts and

circumstances, I hold that the total amount of compensation would be

at Rs.4,52,000/- and the claimants are entitled to interest at 7.5%

p.a., on the above amount from the date of petition till the date of

deposit.

17. In the result, the Civil Miscellaneous Appeal is partly

allowed by modifying the award dt.02.11.2015 passed in

M.V.O.P.No.20 of 2014 on the file of Motor Accidents Claims Tribunal-

cum-I Addl. District Court, Rajahmundry and awarding total

compensation of Rs.4,52,000/- with interest at 7.5% p.a., from the

date of petition till deposit and with proportionate costs.

 BVLNC                                                   MACMA 390 of 2016
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Out of the above amount, the 1st petitioner is entitled to

Rs.3,00,000/- and the 2nd petitioner is entitled to Rs.1,52,000/-.

The petitioners 1 and 2 are permitted to withdraw their

entire compensation amounts including interest and costs awarded

towards their share.

Rest of the directions in the operative portion of order of

the Tribunal are confirmed.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

                                             _____________________________
                                              B.V.L.N.CHAKRAVARTHI, J
22.09.2022
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 BVLNC                                         MACMA 390 of 2016
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THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

M.A.C.M.A.No.390 OF 2016

22nd September, 2022

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