S Narahari, Hyderabad vs S Prabhakar Reddy, Nalgonda Dist ...
2022 Latest Caselaw 7072 Tel

       HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                   M.A.C.M.A. No.2613 of 2014

JUDGMENT:

Not being satisfied with the quantum of compensation awarded

by the Motor Accident Claims Tribunal-cum-IX Additional Chief

Judge, City Civil Court, Hyderabad, in O.P. No.179 of 2011, dated

23.01.2014, the present appeal is filed by the claimant seeking

enhancement of compensation.

2. According to the petitioner, on 18-01-2010 at about 6.00 p.m.

the petitioner and B.Yella Reddy being the pillion riders and

K.Balappa was riding his hero Honda motorcycle bearing No.

AP.10.TH.T/R.3762 from Brahmanapally towards Bibinagar and

when they reached near Hindustan Godown in the outskirts of

Rahimkhangudem, one auto trolley bearing no. AP.24.W.7785 being

driven by its driver came from opposite direction in rash and

negligent manner with high speed and dashed their motorcycle. Due

to which, the rider Balappa and the petitioner and B.Yella Reddy fell

down from the motorcycle and received injuries. Balappa sustained

fatal injuries and died on the spot. Thus, he is claiming compensation

of Rs.1,00,000/- under various heads.

3. Respondent No.2 remained ex parte; Respondent No.2 filed

counter disputing the manner of accident, age, avocation and income

of the injured. It is further contended that the driver of the auto

trolley was not having driving license and prays to dismiss the

petition.

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

following issues:

1. Whether the pleaded accident dated 18.01.2010 has occurred owing to the rash and negligent driving of the driver of the auto trolley bearing No. AP.24.W.7785 and whether the petitioner has sustained injuries in the said accident?

2. Whether the crime vehicle No. AP.24.W.7785 was owned by the first respondent and insured with second respondent as on the date of the accident and whether the petitioner is entitled for any compensation, if so to what quantum and what is the liability of the respondents?

3. To what relief?

5. In order to prove the issues, PW.1 was examined and Exs.A1

to A9 got marked on behalf of the petitioner. On behalf of

respondents, RW-1 was examined and Exs.B1 to B3 got marked.

6. Considering the oral and documentary evidence available on

record, the Tribunal has awarded an amount of Rs.24,375/- towards

compensation to the appellant-claimant along with proportionate

costs and interest @ 7% per annum from the date of petition till the

date of realization. Further, respondentNo.2 is directed to satisfy the

award amount at first and then recover the same from respondent

No.1.

7. Heard the learned counsel for the appellant-claimant and the

learned Standing Counsel for the second respondent-Insurance

Company. Perused the material available on record.

8. The learned counsel for the appellant-claimant has submitted

that although the claimant, by way of evidence of P.W.1 and Exs.A1

to A9, established the fact that the accident occurred due to the rash

and negligent driving of the driver of the auto trolley, and the

petitioner has sustained grievous injuries in the accident, the Tribunal

held that there is contributory negligence on the part of the petitioner

at 25% and 75% on the part of the driver of the auto trolley and

awarded very meager amount of Rs.24,375/- under various heads.

9. The learned Standing Counsel appearing on behalf of second

respondent-Insurance Company sought to sustain the impugned

award of the Tribunal contending that considering the manner of

accident and the nature of injuries sustained by the petitioner, the

learned Tribunal has awarded reasonable compensation and the same

needs no interference by this Court.

10. With regard to the manner of accident, after evaluating the

evidence of PW-1 coupled with documentary evidence available on

record, the Tribunal held that accident occurred due to the rash and

negligent driving of the driver of auto trolley. However, fixed

contributory negligence on the part of the petitioner at 25% and 75%

on the part of driver of auto trolley only on the ground that there was

triple riding on the motorcycle at the time of accident. Though PW-1

admitted in his cross-examination that on the date of accident, three

persons were proceeding on the motorcycle in which he was the

pillion rider, no evidence has been adduced by the insurer to

contradict the version of the incident spoken by PW.1. The learned

Tribunal attributed negligence to the rider of the motorcycle, on the

sole ground of triple riding on the motorcycle. There is no evidence

adduced by the insurer that the accident occurred because of

the triple riding of the motorcycle. In the absence of any contra

evidence, it cannot be assumed or presumed that the accident resulted

because of the triple riding of the motorcycle. The evidence of PW.1

is crystal clear that the auto trolley came in high speed and dashed

the motorcycle and as a result, three persons travelling on

the motorcycle fell on the road and sustained injuries and one of them

died on the spot. The finding recorded by the learned Tribunal that

there was contributory negligence on the part of the rider of

the motorcycle is not based on any evidence.

11. At this juncture, reliance can be placed in a judgment of the

Apex Court in Civil Appeal No.79 of 2020, wherein it was held as

follows:

"13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law.

Section 128 of the Motor Vehicles Act, 1988, imposes a

restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2

persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW3 to the effect that 2 persons on the pillion added to the imbalance."

Hence, in view of the above principle, I find that the accident

occurred due to negligent driving of the driver of the auto trolley

bearing No.AP.24.W.7785.

12. Coming to the quantum of compensation, the petitioner

sustained fractures of 3rd, 4th metatarsal bones of right foot, deep

lacerations on right leg and other injuries all over the body. Ex.A3

wound certificate also shows the same. Ex.A5 discharge summary

issued by ESIC Model Hospital also shows that the petitioner

sustained injuries. Thus, considering the nature of injuries sustained

by the petitioner, an amount of Rs.25,000/- for one grievous injury

and Rs.5,000/- towards one simple injury, which is very less.

Therefore, an amount of Rs.30,000/- is awarded towards one

grievous injury and Rs.10,000/- is awarded towards one simple

injury sustained by the petitioner. Further the Tribunal awarded an

amount of Rs.500/- towards medical expenditure and Rs.1,000/-

towards extra nourishment, which are very less. Hence, an amount of

Rs.10,000/- is awarded towards medical expenses and Rs.15,000/- is

awarded towards extra nourishment, transport charges and attendant

charges. Further the petitioner might not have attended to his work

for one month because of injuries sustained by him. Therefore, an

amount of Rs.5,000/- is awarded towards loss of earnings. Thus in

all, the petitioner is entitled for an amount of Rs.70,000/-.

13. With regard to the liability, with regard to its contention that

the driver of the offending vehicle had no valid driving licence, the

insurance company had taken steps by way of issuing notice to

respondent No. 1 as seen from Ex.B.2. Ex.B.3 is the returned

registered post with acknowledgement. However, the respondent

No.1 did not choose to put up his appearance. Such being the case, it

can safely be presumed that the driver of the offending vehicle had

no valid driving licence. That apart, after completion of

investigation, the police filed the charge sheet against the driver for

the offence under Section 181 of M.V. Act. Considering all these

circumstances, the tribunal has rightly held that there was violation of

terms and conditions of the policy by the owner, respondent No. 1

and by invoking the doctrine 'pay and recover' and by following the

judgments of the Apex Court in this regard, has rightly directed the

respondent No. 2 to first pay the compensation to the claimants and

then recover the same from the owner, respondent No. 1 without

initiating any separate proceedings. Therefore, this Court sees no

ground to disturb the said findings in this regard.

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

the compensation amount awarded by the Tribunal from Rs.24,375/-

to Rs.70,000/-. The enhanced amount shall carry interest at 7.5%

p.a. from the date of petition till the date of realization. As directed

by the tribunal, the respondent No. 2 is directed to first pay the

compensation to the claimants and then recover the same from the

owner, respondent No. 1. The amount shall be deposited within a

period of one month from the date of receipt of a copy of this order.

On such deposit of compensation amount by the respondents, the

claimant is at liberty to withdraw the same without furnishing any

security. No costs.

Miscellaneous petitions, if any pending, shall stand closed.

______________________ M.G.PRIYADARSINI,J 28.12.2022 pgp