The vs Unknown
2023 Latest Caselaw 2843 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 1910 of 2012

JUDGEMENT:

The appellant is 2nd respondent/Insurance company and the

respondents are claim petitioners and respondent Nos.1 & 3 in

M.V.O.P.No.665 of 2005 on the file of the Chairman, Motor Accident

Claims Tribunal-cum-Principal District Judge, Nellore. The appellant

filed the appeal questioning the legal validity of the order of the

Tribunal.

2. For the sake of convenience, both the parties in the appeal will

be referred to as they are arrayed in the claim application.

3. The claim petitioners filed a claim petition under Section 166

of the Motor Vehicles Act, 1988 against the respondents praying the

Tribunal to award an amount of Rs.8,00,000/- towards

compensation for the death of Kuchivada Dasaradharami Reddy in

a motor vehicle accident that occurred on 01.08.2005.

VGKR,J MACMA No.1910 of 2012

4. The brief averments of the claim petition are as follows:

On 01.08.2005 the deceased along with his elder brother Bali

Reddy and his son Kuchivada Somasekhar Reddy was proceeding

on a motor cycle from Naidupet to his village as a pillion rider and

when the vehicle reached near Pennepalli cross road on Naidupet-

Srikalahasti road, the driver of a lorry bearing registration No.AP

11T 4299 parked the lorry in the middle of the road negligently

without observing traffic rules, obstructing the flow of traffic, due to

which, the rider of the motor cycle i.e., brother of the deceased,

could not observe the lorry and dashed the lorry on its rear side

resulting in grievous injuries to all of them. The brother of the

deceased died on the spot itself and later the deceased succumbed

to injuries while undergoing treatment. The 2nd respondent is insurer

and the 3rd respondent is owner of the offending lorry and hence,

they are jointly and severally liable to pay compensation to the

petitioner.

5. Respondent Nos.1 and 3 were set ex parte.

VGKR,J MACMA No.1910 of 2012

6. The 2nd respondent/Insurance company filed a counter by

denying the manner of accident. It is pleaded that the lorry was

stationed on the left side of the road after taking all precautionary

measures and the motor cyclist drove the same in a rash and

negligent manner and lost control over it as three persons were

travelling on it and dashed the stationed lorry. Therefore, there is no

fault on the part of the driver of the lorry.

7. Based on the above pleadings, the Tribunal framed the

following issues for trial:

1. Whether the motor accident was due to negligent act of the driver of the lorry due to wrong parking on the middle of the road without observing traffic rules and caused the death of the deceased or whether there is any contributory negligence on the part of the rider of the motor cycle?

2. Whether the claimants are entitled for any compensation; if so, how much amount and against which of the respondents? and

3. To what relief?

VGKR,J MACMA No.1910 of 2012

8. During the course of enquiry in the claim petition, on behalf of

the petitioners, P.Ws.1 to 3 were examined and Exs.A.1 to A.13

were marked. On behalf of the 2nd respondent/Insurance company,

R.Ws.1 & 2 were examined and Exs.B.1 and X.1 were marked.

9. At the culmination of the enquiry, after considering the

evidence on record and on appreciation of the same, the Tribunal

allowed the petition in part and awarded a sum of Rs.3,82,000/-

towards compensation to the claim petitioners. Being aggrieved by

the impugned award, the 2nd respondent/Insurance company filed

the appeal.

10. Heard learned counsels for both the parties.

11. The ground urged by the appellant/Insurance company is that

the Tribunal failed to see that in a case of stationed vehicle, the

question of contributory negligence does not arise.

12. Now, the point for determination is:

Whether the order passed by the Tribunal needs any interference?

VGKR,J MACMA No.1910 of 2012

13. POINT: In order to prove the negligent act of the driver of

the lorry, the claim petitioners relied on the evidence of P.W.2.

According to the case of the petitioners, P.W.2 is an injured and eye

witness to the accident. As per his own evidence, himself, his father

and the deceased were travelling on a motor cycle and his father

was its rider at the time of accident.

14. The material on record shows that the lorry was parked

wrongly on the road side since no parking is permitted on the road

as per the Investigating Officer and charge sheet was also filed

against the lorry driver and the lorry was parked on the wrong side

of the road and no marks were noted to the parked lorry having

indicators for parking of the lorry. The material on record also

shows that though the lorry was parked on the left side of the road,

but it was in the road portion wrongly without indicators, which

discloses that it was parked wrongly without observing the traffic

rules. In view of the above observations, it is clear that the

deceased and his brother's son were travelling as pillion riders on

VGKR,J MACMA No.1910 of 2012

the motor cycle at the time of accident, which is not permissible as

per the Motor Vehicles Rules. Since the deceased himself opted to

travel on a two wheeler as a third person, which is not permissible

as per the Motor Vehicles Rules, 25% contributory negligence is

fixed on the part of the deceased.

15. By giving cogent reasons, the Tribunal fixed the monthly

income of the deceased as Rs.3,000/- and taken the age of the

deceased as 45 years and the multiplier applicable to the age group

of the deceased as "13" and accordingly, awarded a sum of

Rs.3,12,000/- (Rs.24,000/- x 13) towards loss of dependency after

deducting 1/3rd of income from out of monthly income of the

deceased towards personal expenses since the dependants on the

deceased are two in number. The Tribunal further awarded a sum

of Rs.50,000/- towards medical expenses. Therefore, there is no

need to interfere with the said quantum of compensation awarded

by the Tribunal under these two heads.

VGKR,J MACMA No.1910 of 2012

16. As stated supra, 25% amount has to be deducted from out of

Rs.3,62,000/- (Rs.3,12,000/- + Rs.50,000/-) towards contributory

negligence on the part of the deceased i..e, a sum of Rs.90,500/-.

17. The Tribunal further awarded a sum of Rs.5,000/- towards loss

of estate, Rs.5,000/- towards funeral expenses and Rs.10,000/-

towards loss of consortium. This Court feels that there is no need to

interfere with the quantum of compensation awarded by the learned

Tribunal under these two heads. Thus, a total compensation of

Rs.2,91,500/- is awarded to the claim petitioners towards

compensation.

18. The learned Tribunal in its order held that the 3rd respondent

insured the lorry with the 2nd respondent/Insurance company under

Ex.B.1 policy and the policy was also on force as on the date of the

accident and therefore, respondent Nos.2 and 3 are liable to pay the

compensation to the claim petitioner. The said finding recorded by

the learned Tribunal warrants no interference by this Court.

VGKR,J MACMA No.1910 of 2012

19. In view of the above reasons, the appeal is partly allowed.

The order dated 19.08.2011 passed by the Chairman, Motor

Accident Claims Tribunal-cum-Principal District Judge, Nellore in

M.V.O.P.No.665 of 2005 is modified by reducing the compensation

of Rs.3,82,000/- awarded by the Tribunal to Rs.2,91,500/-. The 1st

claim petitioner, who is wife of the deceased, is entitled to

Rs.1,91,500/- with total costs and interest on Rs.2,91,500/- and the

2nd petitioner, who is mother of the deceased, is entitled to

Rs.1,00,000/-. Respondent Nos.2 and 3 are directed to deposit the

balance amount of compensation with interest at 7.5% p.a. before

the Tribunal from the date of petition till the date of deposit within

two months from the date of the judgment. On such deposit, the

petitioners are entitled to withdraw their respective shares of

compensation. The order of the Tribunal in all other respects shall

remain intact. No order as to costs.

VGKR,J MACMA No.1910 of 2012

As a sequel, miscellaneous petitions, if any, pending in the

appeals shall stand closed.

______________________________ V.GOPALA KRISHNA RAO, J th 4 May, 2023 cbs

VGKR,J MACMA No.1910 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 1910 of 2012

4th May, 2023 cbs