The vs Unknown
2023 Latest Caselaw 2844 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 1836 of 2012

JUDGEMENT:

The appellant is 2nd respondent/Insurance company and the

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

M.V.O.P.No.666 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 petitioner 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.5,00,000/- towards

compensation for the injuries sustained by him in a motor vehicle

accident that occurred on 01.08.2005.

VGKR,J MACMA No.1836 of 2012

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

On 01.08.2005 the claim petitioner along with his father Bali

Reddy and brother of his father Dasaradharami 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., father of the

claim petitioner, could not observe the lorry and dashed the lorry on

its rear side resulting in grievous injuries to all of them. The father of

the petitioner died on the spot itself and later brother of the

petitioner's father died 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.1836 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 injuries sustained by the injured-claimant in 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 or whether there is any contributory negligence on the part of the rider of the motor cycle?

2. Whether the claimant is entitled for any compensation;

if so, how much amount and against which of the respondents? and

3. To what relief?

VGKR,J MACMA No.1836 of 2012

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

the petitioner, 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.2,93,600/-

towards compensation to the claim petitioner. 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.1836 of 2012

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

the lorry, the petitioner relied on his self testimony as P.W.1.

According to the case of the petitioner, he is an injured and eye

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

deceased father and his brother Dasaradharami Reddy 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

petitioner and brother of his father Dasaradharami Reddy were

VGKR,J MACMA No.1836 of 2012

travelling as pillion riders on the motor cycle at the time of accident,

which is not permissible as per the Motor Vehicles Rules. Since the

petitioner 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 petitioner.

15. In order to prove his claim, the petitioner relied on the

evidence of P.Ws.2 and 3-doctors who treated the claim petitioner.

As per the evidence of P.Ws.2 and 3, the injured impaired the sight

of one eye and another eye is in normal condition. The percentage

of loss of earning capacity noted as 40%, whereas the loss of vision

of one eye, without complications or disfigurement of eye-ball, the

other being normal noted as 30%. In the present case, admittedly,

there is no disfigurement of eye-ball even as per the photograph

affixed in the claim petition. So, the percentage of loss of earning

capacity can be taken into account as 30% only, since P.W.2 did not

mention about the percentage of disability. On considering the

material on record, the Tribunal arrived at the conclusion that the

disability suffered by the petitioner is 30%. The petitioner was aged

VGKR,J MACMA No.1836 of 2012

30 years and the multiplier applicable to the age group of the

petitioner as per Sarla Varma case is "17". The petitioner claimed

income of Rs.3,000/- p.m. The Tribunal also fixed the monthly

income of the petitioner as Rs.3,000/- and accordingly awarded an

amount of Rs.1,83,600/- (Rs.3,000/- x 12 x 17 x 30%) to the

petitioner towards future loss of earnings.

16. Apart from the above, the petitioner also relied on Ex.A.9-bill

receipt for Rs.74,800/-, Ex.A.10-a bunch of medical bills, Ex.A.12-

receipt. On considering the medical bills, the Tribunal awarded an

amount of Rs.75,000/- towards medical expenses. The Tribunal

also awarded a sum of Rs.10,000/- towards transport expenses,

special diet, attendant charges and other incidental charges and

Rs.25,000/- towards receipt of injuries, pain and suffering. In total,

the Tribunal awarded Rs.2,93,600/- towards compensation.

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

Rs.2,93,600/- towards contributory negligence on the part of the

claim petitioner i..e, a sum of Rs.73,400/-. Thus, in total the

petitioner is entitled Rs.2,20,200/- towards compensation.

VGKR,J MACMA No.1836 of 2012

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.

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

The order dated 20.08.2011 passed by the Chairman, Motor

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

M.V.O.P.No.666 of 2005 is modified by reducing the compensation

of Rs.2,93,600/- awarded by the Tribunal to Rs.2,20,200/-.

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 petitioner is entitled to

withdraw the said amount along with interest. The order of the

Tribunal in all other respects shall remain intact. No order as to

costs.

VGKR,J MACMA No.1836 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.1836 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 1836 of 2012

4th May, 2023 cbs