Bachina Saritha vs Medapati Satyanarayan Reddy
2022 Latest Caselaw 6413 Tel

          HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                      M.A.C.M.A. No.3539 of 2014

JUDGMENT:

Not being satisfied with the quantum of compensation awarded by

the Chairman, Motor Accidents Claims Tribunal-cum-District Judge,

Nizamabad in O.P. No.485 of 2011 dated 08.07.2014, the present appeal

is filed by the claimants.

2. For the sake of convenience, the parties have been referred to as

arrayed before the Tribunal.

3. According to the petitioners, on 21.04.2011 at about 12-00 mid

night, Bachina Madhan Mohan was traveling in Qualis Jeep bearing No.

AP.12.G.6735 from Tenali towards Rimmanaguda village and when the

jeep reached on Tenali to Dachepally road, one lorry bearing No.AP 05

TU 116 was found parked in the middle of the road without any signals,

danger lights, parking lights etc. due to which the driver of the Qualis

touched the lorry from back side. Due to which, Bachina Madhan

Mohan sustained injuries all over the body and while he was being

shifted to hospital, succumbed to the injuries on 22.04.2011 at 3-50

A.M. and one Bachina Padmavathi also died in the said accident.

According to the claimants, the deceased Madhan Mohan was aged 30

years, working as Police Constable at Kukunoorpally Police Station and

earning Rs.15,000/- per month. Thus, the petitioners are claiming

compensation of Rs.30,00,000/- under various heads against the

respondent Nos.1 and 2, who are owner and insurer of the lorry bearing

No.AP 05 TU 116.

4. Respondent No.1 remained ex parte; Respondent No.2 filed

counter disputing the manner in which the accident occurred, age,

avocation and income of the deceased. It is further contended that the

accident occurred due to rash and negligent driving of the Qualis Jeep

bearing No. AP 12 G 6735 by its driver and there was no negligence on

the part of driver of the parked lorry bearing No. AP 05 TU 116 and that

the claim is excessive.

5. In view of the above pleadings, the Tribunal raised the following

issues:

1) Whether the accident has taken place due to rash and negligent driving of lorry bearing No. AP 05 TU 116 by its driver?

2) Whether the petitioners are entitled for compensation, if so, to what amount and against whom?

3) To what relief?

6. In order to prove the issues, on behalf of the petitioners, PWs.1 to

3 were examined and got marked Exs.A-1 to A-6. On behalf of

respondent No.2, no witnesses were examined and Ex.B1 was marked.

7. On considering the oral and documentary evidence on record, the

Tribunal has awarded an amount of Rs.15,50,000/- towards

compensation to the appellants-claimants along with proportionate costs

and interest @ 7.5% per annum from the date of petition till the date of

realization against the respondent Nos.1 and 2 jointly and severally.

8. Heard the learned counsel for the appellants-claimants and the

learned Standing Counsel for the respondent No.2-Insurance Company.

Perused the material available on record.

9. The learned counsel for the appellants-claimants has submitted

that although the claimants have established the fact that the death of the

deceased-Bachina Madhan Mohan was caused in a motor accident

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

lorry bearing No.AP 05 TU 116 and the police filed charge sheet against

the driver of the lorry, the Tribunal erred in fixing the liability against

the Qualis driver and lorry driver at 50:50. Therefore, prays to allow the

appeal and fix the liability against the respondents.

10. Learned Standing Counsel for the respondent No.2-Insurance

Company vehemently argued that the Tribunal has rightly came to the

conclusion by stating that the accident occurred due to the contributory

negligence and the Qualis driver has contributed in the accident. Hence,

the Tribunal awarded adequate compensation by fixing liability against

the lorry driver and the Qualis driver at 50:50 and the same needs no

interference by this Court.

11. With regard to the manner of accident, the evidence of PW-3

shows that on 21.4.2011 at 12-00 mid night the deceased Bachina

Madhan Mohan along with two others was traveling in Qualis jeep

bearing No. AP.12.G.6735 from Tenali towards Rimmanaguda village

and when it reached Mutyampadu cvross roads in Guntur District, one

lorry bearing No. AP.05.TU.116 was parked on the middle of the road

without any signals, danger/parking lights and without taking any

precautions, due to which, the Qualis touched the lorry from backside

and the deceased Madhan Mohan sustained severe fracture injuries all

over the body and died while being shifted to the hospital and a woman

by name Bachina Padmavathi also died in that accident. Further Ex.A4

certified copy of charge sheet under Ex.A4 discloses that the police after

thorough investigation laid charge sheet against the driver of the lorry

bearing No.AP 05 TU 116. It is pertinent to state that the respondent

No.2 Insurance Company has not adduced either oral or documentary

evidence to show that there is any fault in the investigation done by the

police nor to prove any contributory negligence on the part of the Qualis

driver. Furthermore, respondent No.2 in their cross-examination has not

even suggested that there is contributory negligence on the part of the

Qualis driver. Respondent No.2 has not even filed the rough sketch to

show the position of the lorry, whether it was parked in the middle of

the road or to the side of the road. Further as the accident occurred at

mid night and there are no street lights and the lorry driver/respondent

No.1 parked the lorry by opening the back door without taking any

precautions like switching on the blinking parking lights etc., it is very

clear that the accident occurred only due to the negligent parking of the

lorry of respondent No.1. Under these circumstances, this Court is of

the considered opinion that the accident occurred only due to the

negligence of the lorry driver but the Tribunal without considering the

above facts has erred in fixing the liability against both the vehicles.

12. Coming to the quantum of compensation, according to the

petitioners, deceased-Madhan Mohan was aged 30 years, working as

Police Constable and earning Rs.18,000/- per annum. PW-2 also

supported the version of PW1 with regard to the age, avocation and

earnings of the deceased. Ex.A6 is the last pay certificate of the

deceased Madhan Mohan issued by the Superintendent of Police, Medak

at Sangareddy, which shows that the gross salary of the deceased was

Rs.15,910/- in April 2011, which includes KMA Rs.100/- and R.A.

Rs.150/-, which cannot be included in the gross salary of the deceased

and therefore, the gross salary of the deceased comes to Rs.15,660/- per

month. Further, in light of the principles laid down by the Apex Court

in National Insurance Company Limited Vs. Pranay Sethi and others1,

the claimants are entitled to future prospects @ 50% of his income,

since the deceased was aged in between 32 years. Then it comes to

Rs.23,490/- (15,660 + 7,830 = 23,490/-). From this, 1/3rd is to be

deducted towards personal expenses of the deceased following Sarla

Verma v. Delhi Transport Corporation2 as the dependents are three in

number. After deducting 1/3rd amount towards his personal and living

expenses, the contribution of the deceased to the family would be

2017 ACJ 2700

2009 ACJ 1298 (SC)

Rs.15,660/- per month (23,490 - 7,830 = 15,660/-). Since the deceased

was 32 years by the time of the accident, the appropriate multiplier is

'16' as per the decision reported in Sarla Verma v. Delhi Transport

Corporation (supra). Adopting multiplier '16', the total loss of

dependency would be Rs.15,660/- x 12 x 16 = Rs.30,06,720/-. In

addition thereto, the claimants are also entitled to Rs.77,000/- under the

conventional heads as per Pranay Sethi's (supra). Apart from that, as

per the decision of the Apex Court in Magma General Insurance

Company Limited v. Nanu Ram @ Chuhru Ram and others3, the

claimant No.2 being the minor child of the deceased, is granted parental

consortium of Rs.40,000/- and claimant No.3 being the father of the

deceased is granted filian consortium of Rs.40,000/-. Thus, in all the

claimants are entitled to Rs.31,63,720/-.

13. With regard to the liability, as discussed above, since the accident

occurred due to the negligence of the driver of the lorry, which was

insured with the respondent No.2-Insurance Company and the policy

was in force as on the date of accident under Ex.B1, respondent Nos.1

and 2 are jointly and severally liable to pay compensation to the

petitioners.

(2018) 18 SCC 130

14. In the result, the M.A.C.M.A. is allowed by enhancing the

compensation amount awarded by the Tribunal from Rs.15,50,000/- to

Rs.31,63,720/-. The enhanced amount shall carry interest at 7.5% p.a.

from the date of petition till the date of realization, to be payable by the

respondent Nos.1 and 2 jointly and severally. The amount shall be

deposited within a period of one month from the date of receipt of a

copy of this order. The amount of compensation shall be apportioned

among the appellants-claimants in the ratio as ordered by the Tribunal.

The claimants shall pay deficit Court fee on the enhanced compensation,

since the initial claim was for Rs.30,00,000/-. On such payment of court

fee only, the claimants are entitled to withdraw the amount. There shall

be no order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

_______________________ M.G.PRIYADARSINI,J

05.12.2022 pgp