M Veenavathi 2 Others vs M Surendranadha Reddy Another
2023 Latest Caselaw 1075 AP

            THE HON'BLE SRI JUSTICE M.GANGA RAO
                                    AND
               THE HON'BLE SRI JUSTICE V.SRINIVAS

               M.A.C.M.A.Nos.745 and 1333 of 2015


COMMON JUDGMENT: (per Hon'ble Sri Justice V.Srinivas)

      These appeals are directed against the judgment of the

Chairman,      Motor    Vehicle     Accident     Claims   Tribunal-cum-IV

Additional District Judge, Tirupati (hereinafter called as 'the

Tribunal') in M.V.O.P.No.293 of 2011 dated 06.03.2015.

2.    These appeals arise out of same accident and are being

decided by this common judgment since the material facts are

common.

3.    M.A.C.M.A.No.745 of 2015 is filed by the parents and

younger   sister   of    M.Abhinai    Reddy      (hereinafter   called   as

'deceased'),    who     are   the   claimants,     for enhancement       of

compensation. Respondent Nos.1 and 2 herein are the owner and

insurer of the lorry bearing No.AP 04 T 0948.

4. M.A.C.M.A.No.1333 of 2015 is filed by the insurer of the

lorry bearing No.AP 04 T 0948.

5. According to the claimants, on 13.02.2011 at about 03.30

P.M. near Naravari Rahadari turning on a road running from

Chittoor to Kurnool, N.H.18 in between Piler and Kallur of

Pulicherla Mandal, when the deceased was proceeding in Verna Car

bearing No.AP 28 CD 2337 along with his friends, the driver of lorry

bearing No.AP 04 T 0948 came in opposite direction with sugarcane

load at high speed in a rash and negligent manner and hit the said

car. As a result of which, spark ignited in the engine of car, which

caught hold fire on the spot and the inmates of the car also died

on the spot. At the time of accident, the deceased was aged

about 26 years and was working as Analyst Programmer in Verizone

Data Services India Private Limited, Hyderabad and earning

Rs.5,04,000/- p.a. Being dependents, the claimants filed M.V.O.P

under the Motor Vehicles Act, claiming compensation of

Rs.55,00,000/-.

6. Counter was filed by the owner of the lorry denying all the

material allegations, stating that there was no negligence on the

part of the driver of lorry and the accident occurred due to

negligent driving of the driver of car only and hence, he is not

liable to pay compensation.

7. Counter was filed by the insurer of lorry denying all the

material allegations, stating that the policy issued to the lorry was

in force at the time of accident; that the accident occurred due to

rash and negligent driving of the car and hence, it is not liable to

pay compensation.

8. Basing on the above pleadings, the Tribunal settled the

following issues:

1.Whether the deceased viz M.Abhinai Reddy died due to receipt of injuries in the motor vehicle accident that occurred on 13.02.2011 due to rash and negligent driving of the driver of the lorry bearing Regn.No.AP 04 T 0948 duly insured with the second respondent as alleged ?

2.Whether the petitioners are entitled for compensation amount ? If so, what is the quantum of compensation amount and against whom ?

3. To what relief ?

9. In the course of trial, on behalf of the claimants, PWs.1 to 4

were examined and Exs.A.1 to A.9 and X.1 and X.2 were marked.

On behalf of the respondents, R.Ws.1 to 4 were examined and

Ex.B.1 was marked.

10. On the material, the Tribunal, having come to the conclusion

that the accident was occurred due to rash and negligent driving of

driver of lorry only, held that the claimants are entitled

compensation of Rs.42,96,990/- with interest at 7.5% p.a from the

date of petition till the date of realization payable by owner and

insurer of the lorry jointly and severally.

11. Being not satisfied with the award, these appeals are

preferred by the claimants and insurer of lorry respectively.

12. Heard Sri O.Uday Kumar, learned counsel for the claimants

and Sri V.Sambasiva Rao, learned Standing Counsel for insurer of

lorry.

13. Learned counsel for the claimants submits that the accident

was occurred due to the rash and negligent driving of the driver of

lorry and the inmates of the car died on the spot and that the

Tribunal has not awarded just compensation.

14. Learned counsel for the insurer of lorry submits that there

was no negligence on the part of driver of lorry and that the

accident was occurred only due to negligent driving of car only and

hence, the insurer of the lorry is not liable to pay compensation.

15. After hearing both sides, the following points that arise for

determination are:

1. Whether there is any flaw in arriving the conclusion that the accident occurred solely due to the negligence on the part of the driver of lorry?

2. Whether the compensation awarded by the Tribunal needs interference?

3. To what relief ?

16. POINT NO.1:

In deciding the point whether there is negligence on the

part of the driver of car as well driver of lorry, the Tribunal had

come to the conclusion that the accident occurred due to

negligence on the part of the driver of lorry only. To verify the

said fact, it is necessary to appreciate the evidence placed on

record by both the parties before the Tribunal.

17. In the pleadings of the claim petition, the manner of

accident was narrated as follows:

On 13.02.2011 at about 03.30 p.m. near Naravari Rahadari

turning on Chittoor-Kurnool National Highway in between Piler and

Kallur of Pulicherla Mandal, when the deceased was proceeding in

a Verna Car bearing No.AP 28 CD 2337 along with his friends, when

they reached Naravari Rahadari turning, at that time the driver of

lorry bearing No.AP 04 T 0948 belonging to the 1st respondent came

in opposite direction with a load of sugarcane with high speed in a

rash and negligent manner hit against the car. As a result of which,

spark ignited in the engine of car, caught hold the fire on the spot

and the inmates in the car died in the accident on the spot.

Thereafter, deceased were shifted to Government Hospital, Piler

to conduct Post Mortem examination and according to the

claimants, a case in Crime No.4 of 2011 on the file of Kallur Police

Station was registered for the offences punishable under Sections

304-A, 337 and 279 I.P.C. under Ex.A1.

Ex.A4-Copy of M.V.I.report speaks that both the vehicles

were not fit for road test since they were burnt and damaged due

to fire. So Motor Vehicle Inspector could not give any clue that at

whose instance the accident was occurred.

Certified copy of final report, which was marked as Ex.B2 in

M.V.O.P.No.191 of 2011 on the file of the Chairman, Motor Vehicle

Accident Claims Tribunal-cum-V Additional District Judge, Tirupati,

speaks that, the Inspector of Police, as a part of his investigation,

visited the scene of offence, examined and drafted an observation

mahazar in the presence of mediators. He also took photographs

of the scene of offence. He further indicated in his final report

that one of the deceased by name, Harikumar, was driving car in a

rash and negligent manner, dashed against the opposite sugar cane

load lorry bearing No.AP 04T 0948, as a result sparks ignited from

the engine and flames spread all over the car, due to central

locking system of the car, the deceased along with his friends were

unable to come out from the car and charred to death. He further

made finding in his investigation that Chittoor-Kurnool road has

been made double road completely, the drivers will have

stimulation and will push the accelerator to the maximum extent

showing the maximum meter. According to the Inspector of Police,

the driver of car drove it in a high speed at the deep curve without

observing the opposite coming lorry and dashed, as a result the

accident occurred.

18. Admittedly, the driver of car died on the spot due to burnt

injuries.

19. The next witness available before the Court is PW.2, who is

said to be in the lorry at the time of accident. In the chief

examination, he stated that he engaged a lorry bearing No.AP 04 T

0948 for the purpose of transport of sugar cane from his fields to

Vani Sugar Factory, Punganur. He boarded the lorry along with

load of sugar cane reached at about 3.30 p.m. near Naravari

Rahadari turning on Chittoor-Kurnool National Highway in between

Piler and Kallur of Pulicherla Mandal. At that time, the driver of

lorry driven it in a rash and negligent manner without due care and

caution and suddenly on seeing the opposite coming Verna Car

bearing No.AP 28 CD 2337, the driver of said lorry applied sudden

break but lost control over the lorry and at that moment, the

lorry skew to the right side and dashed the opposite coming verna

car. Due to which, sparks ignited and fire was caught hold to both

the vehicles and inmates of the car died on the spot. PW.2 and

driver survived with simple injuries. He stated that the said

accident occurred only due to the rash and negligent driving of the

driver of the lorry only. At the time of accident, the lorry was in

motion and at the place of accident the National Highway was

double road. Earlier he gave evidence in M.V.O.P.No.205 of 2011 in

relating to the same accident with regard to claim of the legal

heirs of owner of car.

20. Further P.W.4 stated that he was going behind the lorry on

his motor cycle along with his friend. So it is not practically

possible for him to see the manner of the accident.

21. In this case, the Inspector of Police, who subsequently

promoted as Deputy Superintendent of Police examined as RW.4,

who is said to be investigated the offence. In his chief

examination, he stated that lorry was stationed at the extreme

left side margin of the road and there was a turning near the place

of accident as per Ex.B1-rough sketch and in a turning of the road

if any vehicle comes at high speed on the opposite direction, there

is a possibility of hitting lorry or any other opposite vehicle. In his

investigation he also examined one Beegala Rajendra (PW.2), who

stated before him that the accident was occurred due to the rash

and negligent driving of the car. In the cross examination, it was

elicited that there are five eye witnesses to the accident. The

inmates of lorry, owner of mango garden stated that the accident

was occurred due to rash and negligent driving of driver of car. As

per his investigation at the time of accident, both the vehicles

were on motion. He stated that there is a possibility in difference

of running speed with regard to empty lorry and lorry with a load

and when he visited the place of accident, both vehicles were on

the margins of the road. This is the oral evidence placed before

the Tribunal.

22. But the tribunal came to the conclusion that the accident

occurred due to negligent driving of driver of lorry only. However,

it is evident from both oral and documentary evidence found that

it is head on collision and accident occurred not only negligent

driving of the driver of lorry but also driver of car and it is a

contributory negligence on the part of the driver of car as well as

driver of lorry. Though claimants claimed that the accident

occurred due to negligent act of driver of lorry but the evidence

placed on record came to the conclusion that both the drivers are

contributed for the accident.

23. This Court also categorically gone through the evidence

placed on record. As could be seen from the evidence of PW.2,

who is owner of sugar cane said to be driver in the lorry stated

that there is a negligence on the part of R.W.3, who is said to be

lorry driver. Whereas, the driver of the lorry, who was examined

as RW.3 consistently stated that the accident occurred due to

negligence of driver of car. But one thing is proved from the

testimony of PW.2 and RW.3 that at the place of accident there

was a turning and Ex.B1-rough sketch also supports that fact. At

the turning point, when accident occurred both the vehicles

dashed each other rather head on collision, which is nothing but a

contributory negligence on the part of the drivers of both the

vehicles. When head on collision taken place, the extent of

negligence can be taken as 50-50 because it was case of composite

negligence also.

24. As there is a common error committed by both the drivers

at the time of accident, the composite negligence is well discussed

in T.O.Anthony v. Karvarnan1, in which it was found that the

injured need not establish the extent of responsibility of each

wrongdoer separately, nor is necessary for the court to determine

the extent of liability of each wrongdoer separately. In the said

judgment, the Hon'ble Supreme Court while discussing the

composite negligence held that "'Composite negligence' refers to the

negligence on the part of two or more persons. Where a person is 1 2008(3) TAC 193(SC)

injured as a result of negligence on the part of two or more wrong

doers, it is said that the person was injured on account of the

composite negligence of those wrong-doers. In such a case, each

wrong doer, is jointly and severally liable to the injured for payment

of the entire damages and the injured person has the choice of

proceeding against all or any of them. In such a case, the injured

need not establish the extent of responsibility of each wrong-doer

separately, nor is it necessary for the court to determine the extent

of liability of each wrong-doer separately. On the other hand where

a person suffers injury, partly due to the negligence on the part of

another person or persons, and partly as a result of his own

negligence, then the negligence of the part of the injured which

contributed to the accident is referred to as his contributory

negligence. Where the injured is guilty of some negligence, his claim

for damages is not defeated merely by reason of the negligence on

his part but the damages recoverable by him in respect of the

injuries stands reduced in proportion to his contributory negligence.

Further contended that when two vehicles are involved in an

accident, and one of the drivers claims compensation from the other

driver alleging negligence, and the other driver denies negligence or

claims that the injured claimant himself was negligent, then it

becomes necessary to consider whether the injured claimant was

negligent and if so, whether he was solely or partly responsible for

the accident and the extent of his responsibility, that is his

contributory negligence.

25. So from the above legal preposition, this Court is of the

opinion that both the drivers of the lorry and car are jointly liable

for the accident as is observed above that the evidence of RW.3

and RW.4 coupled with Ex.A9-copies of photographs clearly show

that due to impact of head on collision, both vehicles have burnt

and inmates of the car four in number burnt and died on the spot.

The manner in which accident occurred coupled with the evidence

of PW.2 clearly shows that the accident was occurred due to

composite negligence of the R.W.3 and driver of car, who also died

in the accident. Unless both the drivers were negligent, the

impact of accident would not be happened and apportioning of

both the vehicles, which includes lorry, which admittedly goods

carriage vehicle. Therefore, this Court warrants interference with

the finding of the Tribunal since there is a composite negligence of

both the drivers.

26. POINT NO.2:

On verifying the record placed before the Tribunal, the

Tribunal considered the age of the deceased as 26 years on the

date of accident basing on Ex.A2-inquest report and Ex.A3-

postmortem certificate of the deceased. Hence, the Tribunal

applied the relevant multiplier '17'. Ex.X1-pay slip of the

deceased clearly show that the deceased was getting net salary of

Rs.29,635/- p.m.

27. As can be seen from the evidence on record, the deceased

was working as Analyst Programmer in Verizone Data Services India

Pvt., Ltd., Hyderabad. With experience, he would get better

opportunities and earn more salary and spent more towards

maintenance of his parents with passage of time. As per the

evidence of P.W.3 and Ex.X.1 salary slip, the deceased earning

Rs.29,635/- p.m and the tribunal rightly calculated net annual

income of the deceased comes to Rs.3,35,058/- after deducting

applicable tax.

28. As per the decision of the Constitution Bench of the Apex

Court in National Insurance Company Limited v. Pranay Sethi2,

the deductions towards personal and living expenses of the

deceased, held at Paragraph No.39 as follows:

39. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible from Sarla Verma, Reshma

2 2017 (6) ALT 60 (SC)

Kumari, Rajesh and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, 31 and 32, Sarla Verma lays down:-

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra4, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this (2003) 3 SLR (R) 601 Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.

31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the

income of the deceased, as in a case where he has a widowed mother and large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."

29. As per the Pranay Sethi case(referred supra), by fortifying

Sarla Verma v. Delhi Transport Corporation3, while determining

the income, an addition of 50% of actual salary to the income of

the deceased towards future prospects, where the deceased had a

permanent job and was below the age of 40 years, should be

made. The addition should be 30%, if the age of the deceased was

between 40 to 50 years. In case the deceased was between the age

of 50 to 60 years, the addition should be 15%. Actual salary should

be read as actual salary less tax.

30. In the present case, as per the above said decision 50% of

actual salary has to be added to the income of the deceased

towards future prospects, as the victim is in the age group below

the age of 40 years. After adding 50% to the income of the

deceased towards future prospects his income is determined at

Rs.5,02,587/-p.a.( Rs.3,35,058/- p.a. + Rs.1,67,529/-).

31. In the case on hand, since the deceased is bachelor as per

the ratio laid down in the above said Apex Court's judgment, 50%

has to be deducted from the income of the deceased towards

3 2009 ACJ 1298

personal and living expenses. Then the quantum is determined as

Rs.2,51,293.50/- p.a.

32. Regarding just compensation, in a decision of Hon'ble

Supreme Court between Sandeep Khanuja vs Atul Dande & Anr4,

at Paragraph Nos.11 and 12 held as follows :

11.........it is now a settled principle, repeatedly stated and restated time and again by this Court, that in awarding compensation the multiplier method is logically sound and legally well established. This method, known as 'principle of multiplier', has been evolved to quantify the loss of income as a result of death or permanent disability suffered in an accident.........

12......... While applying the multiplier method, future prospects on advancement in life and career are taken into consideration. In a proceeding under Section 166 of the Act relating to death of the victim, multiplier method is applied after taking into consideration the loss of income to the family of the deceased that resulted due to the said demise. Thus, the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimant, as the case may be.......

4 2017 (3) SCC 315

....... there should be no departure from the multiplier method on the ground that Section 110-B, Motor Vehicles Act, 1939 (corresponding to the present provision of Section 168, Motor Vehicles Act, 1988) envisaged payment of 'just' compensation since the multiplier method is the accepted method for determining and ensuring payment of just compensation and is expected to bring uniformity and certainty of the awards made all over the country.".......

33. The appropriate multiplier applicable to the age of the

deceased i.e., 26 years is 17. The total loss of dependency is

determined at Rs.42,71,990/- p.a.(rounded of) (Rs.2,51,293.50/-

p.a. x 17). Apart from that as per the decision of the Constitution

Bench of the Apex Court in Pranay Sethi's case (referred to

supra), an amount Rs.15,000/- towards funeral expenses and

Rs.15,000/- towards love and affection are awarded. In total, the

claimants are entitled compensation of Rs.43,01,990/-.

34. A brief exposition of the calculation made to arrive at the

compensation is set out infra:

 S.No.             Heads                       Calculation

1        The annual income of the Rs.3,35,058/- p.a
         deceased


2        50% of above(1) to be Rs.5,02,587/-

added as future prospects (Rs.3,35,058/- + Rs.1,67,529/-)

3 50% to be deducted as Rs.2,51,293.50/-.

personal expenses of deceased.

4       Compensation arrived at Rs.42,71,990/- (rounded of)
        on      application  of (Rs.2,51,293.50/-x 17)
        multiplier 17.

5       Loss of estate               Rs.15,000/-

6       Funeral expenses             Rs.15,000/-

        Total     compensation Rs.43,01,990/-
        awarded(Rows 4+5+6)

35. Further it is settled law that under the provisions of the

Motor Vehicle Act, 1988, there is no restriction that compensation

could be awarded only up to the amount claimed by the claimants.

In an appropriate case, where from the evidence brought on

record, if Tribunal consider that claimants are entitled to get more

compensation than claimed, the Tribunal may pass such award.

There is no embargo to award compensation more than that

claimed by the claimant. Rather it is obligatory for the Tribunal

and Court to award "just Compensation", even if it is in the excess

of the amount claimed. This settled position is followed from the

decision of the Supreme Court reported in Nagappa v. Gurudayal

Singh5.

36. Coming to the rate of interest fixed by the Tribunal, it

awarded rightly awarded the rate of interest at 7.5% p.a. as per

the principle laid down in Tamil Nadu State Transport v.

S.Rajapriya6.

37. In view of the forgoing discussion, even though the

claimants entitled for enhancing the compensation from

Rs.42,96,989/- to Rs.43,01,990/-, they are not entitled to get

the same, as in the present case the claimants not claimed any

compensation against driver, owner and insurer of the car by

showing them as parties to this petition. Hence, the claimants are

only entitled compensation to the extent of 50% only, out of the

award amount, against the owner and insurer of the lorry jointly

and severally. Thus, this point is answered accordingly.

38. POINT No.3:

In view of our findings on Point No.1, the order passed by the

Tribunal warrants interference with regard to apportionment of

liability to pay compensation to the claimants.

5 (2003) 2 SCC 274 6 2005 Law Suit SC 742

In view of findings on Point No.2, the quantum of

compensation awarded by the Tribunal needs interference and

with regard to the remaining aspects, there is no need to disturb

the well articulated order passed by the Tribunal.

39. In the result, the appeal filed by the claimants in

M.A.C.M.A.No.745 of 2015 is allowed in part. Since, the claimants

are not claimed compensation against owner and insurer of the

car, they are entitled only 50% of the enhanced compensation

amount i.e., Rs.21,50,995/- with interest and proportionate costs.

40. M.A.C.M.A.No.1333 of 2015 is allowed in part by

apportioning the liability to pay compensation equally between the

owners and insurers of both the vehicles i.e., car and lorry. The

owner and appellant/insurer of the lorry shall jointly and severally

liable to pay an amount of Rs.21,50,995/- (50% of the award

amount) to the claimants with interest at 7.5% per annum, with

proportionate costs from the date of petition till the date of

realization. They shall deposit the compensation amount within

two months from the date of this judgment as per the

apportionment made above. Rest of the directions given by the

Tribunal shall remain unaltered.

41. The impugned order of the Tribunal stands modified to the

aforesaid extent and in the terms and directions as above.

42. Interim orders granted earlier if any, stand vacated.

43. Miscellaneous petitions pending if any, stand closed.

                                                   ________________
                                                    M.GANGA RAO, J



                                                        ____________
                                                        V.SRINIVAS, J

Date:     .02.2023
Pab/krs




          THE HON'BLE SRI JUSTICE M.GANGA RAO
                              AND
           THE HON'BLE SRI JUSTICE V.SRINIVAS




            M.A.C.M.A.Nos.745 and 1333 of 2015

                      DATE:    .02.2023




Pab/Krs