Kamatala Sulochana vs Puppala Shankar Reddy,
2022 Latest Caselaw 833 Tel

              HONOURABLE JUSTICE G. SRI DEVI

                   M.A.C.M.A. No.5549 of 2008

JUDGMENT:

Challenging the order and decree, dated 18.01.2008, passed

in O.P.No.356 of 2006 on the file of the Motor Accidents Claims

Tribunal (District Judge), Karimnagar (for short "the Tribunal"),

the claimants filed the present appeal.

The facts, in issue, are as under:

The appellants/claimants, who are the wife, children and

parents of one Kamatala Venkatesham (hereinafter referred to as

"the deceased"), filed a petition under Section 166 (1) ( c ) of the

Motor Vehicles Act claiming compensation of Rs.10,00,000/- for

the death of the deceased in a motor accident that occurred on

31.03.2006. It is stated that on that day the deceased was

returning home on his Scooter bearing No.AP-15-N-8335 from

Karimnagar towards Jagtial side and when he reached near State

Bank of Hyderabad, Gangadhara Cross Roads, one lorry bearing

No.MP-05-F-9911 came in opposite direction, driven by the 1st

respondent in a rash and negligent manner at high speed and

dashed the scooter of the deceased and thereafter the lorry

dashed one Maruthi Car bearing No.AP-15-N-3993. Immediately

after the accident, the deceased was shifted to Badrakali Hospital,

Karimnagar, where the doctors advised him to shift the deceased

to Hyderabad and while he was being shifted to Hyderabad, on

the way near Pragnapur, the deceased succumbed to the injuries.

Basing on the complaint lodged, a case in Crime No.34 of 2006 of

Gangadhar Police Station, has been registered against the 1st

respondent. It is further stated that due to untimely death of the

deceased, the claimants have lost their dearest member and also

his earnings. Hence, the petitioners claimed compensation of

Rs.10,00,000/- from the respondents 1 to 3, who are the driver,

owner and insurer of the lorry respectively.

Before the Tribunal, the respondents 1 and 2 filed counter

denying the petition averments and contended that the accident

did not take place due to the negligent driving of the 1st

respondent. It is stated that the deceased after holding talks with

Hamalies by the side of road by sitting on his Scooter, all of a

sudden took 'U' turn to move towards Jagtial from Karimnagar

side on the main road and found the lorry coming on the road

from left side towards Karimnagar and because of sudden 'U'

turn taken by the deceased, the 1st respondent tried his best to

save him from coming under the vehicle, but the scooter came

into contact with left bumper of the lorry and deceased fell down

and thus the accident was occurred due to sheer negligence of the

deceased, but not the 1st respondent. It is further denied the age,

avocation and earnings of the deceased and since the 1st

respondent is having valid driving licence, and the lorry was

insured with the 3rd respondent, the 3rd respondent alone is liable

to pay compensation.

The 3rd respondent filed counter denying the manner of

accident and fault of the 1st respondent. It is contended that the

deceased himself was rash and negligent in driving his scooter

and at best the negligence on the part of the 1st respondent is at

10% and not more than that. On this score, the 3rd respondent

pleaded that the petition is bad for non-joinder of owner and

insurer of the Scooter. It is also denied the age, avocation and

income of the deceased and dependency of the claimants on him.

It is further stated that the endorsement on the renewal of driving

licence is forged and the 1st respondent did not hold valid and

effective driving licence at the time of accident and since the

respondents 1 and 2 have violated the conditions of the policy,

the 3rd respondent is not liable to pay any compensation.

Basing on the above pleadings, the Tribunal has framed the

following issues:-

1. Whether the accident took place due to rash and negligent driving of the vehicle i.e., Lorry bearing No.MP-05-F-9911 by its driver?

2. Whether the petitioners are entitled to compensation and if so, to what amount and from whom?

3. To what relief?

On behalf of the claimants, P.Ws.1 to 3 were examined and

got marked Exs.A1 to A13. On behalf of the respondents, R.Ws.1

to 4 were examined and got marked Exs.B1 to B7.

After considering the oral and documentary evidence on

record, the Tribunal came to the conclusion that the accident was

occurred due to the fault of the deceased himself, but not the 1st

respondent and as such the claimants are entitled to

compensation of Rs.50,000/- under no fault liability clause as laid

under Section 140 (3) of M.V. Act and accordingly, awarded

Rs.50,000/- with proportionate costs and simple interest at the

rate of 7.5% per annum from the date of O.P. till the date of

realization, payable by respondents 1 to 3. Challenging the same,

the present appeal is filed.

Heard the learned Counsel for the appellants/claimants,

learned Counsel for the 3rd respondent/Insurance Company and

perused the record.

A perusal of the material on record would show that

charge sheet has been filed against the 1st respondent-R.W.1.

The contents of the charge sheet would disclose that the 1st

respondent drove his lorry in a rash and negligent manner with

high speed and dashed aginst the Scooter, which was coming in

opposite direction, on which the deceased was proceeding and

thereafter the lorry also dashed to Maruthi Car No. AP 15 N 3993.

That apart, R.W.1, who is the driver of the lorry, has admitted in

his cross-examination that his lorry dashed the Car of a Bank

Manager and one Pan Shop also. It is an admitted fact that the

deceased should have to take care while taking 'U' turn on the

road leading to Hyderabad by seeing the vehicles on both sides

and at the same time it is the duty of the driver of Lorry to take

more care and caution than the deceased. Had the 1st respondent

has taken minimum care and caution in driving the Lorry, the

accident would not have occurred. Further, there is a

contributory negligence on the part of the deceased, since the

deceased has taken sudden 'U' turn to the back side without

observing the vehicles on the road. If the cross-examination of

R.W.1 and the contents of the charge sheet (EX.A4) are taken into

consideration, there is contributory negligence on the part of the

deceased to an extent of 25% and more negligence on the part of

the driver of lorry i.e.,1st respondent to an extent of 75%.

Therefore, the finding of the Tribunal that the accident occurred

only due to the negligence of the deceased himself but not the 1st

respondent appears to be incorrect and the same is hereby set

aside holding that there is contributory negligence on the part of

the deceased at 25% and on the part of the 1st respondent at 75%.

Insofar as the quantum of compensation is concerned,

according to the claimants, the deceased was aged about 40 years

and was earning Rs.8,000/- per month as the deceased was

carrying business of buying and selling of agriculture products in

Gangadhar Market Yard, after obtaining valid licence from the

market officials. The 3rd respondent-Insurance Company denied

the same. However, to prove the said contention, the claimants

relied upon the evidence of P.W.3- Secretary, Agricultural Market

Committee, Gangadhar, along with Ex.A8-Certificate issued by

P.W.3. The contents of Ex.A8-Ceritificate would show that the

deceased was engaged in the business of buying and selling of

agriculture products in Gangadhara Market Yard since 15 years

under the name and style of Sri Parameshwara and Company

and also carried the business of buying and selling of food grains

in the name of M/s. Umashanker Traders, Gangadhara. The

claimants also got marked Exs.A12 and A-13 Certificates of

Registration of the said two firms. From the above, it is clear

that the deceased was carrying on the business of said two firms.

Therefore, considering the nature of profession of the deceased,

this Court is inclined to take the income of the deceased as

Rs.5,000/- per month. That apart, the claimants are entitled to

addition of 25% towards future prospects, as per the decision of

the Hon'ble Supreme Court in National Insurance Company

Limited Vs. Pranay Sethi and others1. Therefore, monthly

income of the deceased comes to Rs.6,250/- (Rs.5,000/- +

Rs.1,250/-). After deducting 1/4th amount towards his personal

and living expenses, the contribution of the deceased to the

family would be Rs.4,687/- per month and Rs.56,250/- per

annum. As per Ex.A3, the deceased was aged about 42 years, by

the time of fatal accident and in view of the law laid down by the

Apex Court in Smt. Sarla Varma v. Delhi Transport Corporation

and another2, the appropriate multiplier is '14'. Hence, applying

multiplier '14, the total loss of dependency would be Rs.56,250/-

x 14 = Rs.7,87,500/-. The claimants are also entitled to Rs.77,000/-

towards conventional charges, as per Pranay Sethi's case (1

supra). Thus, in all the claimants are entitled to Rs.8,64,500/-. As

stated above, since there is 25% contributory negligence on the

part of the deceased, an amount of Rs. 2,16,125/- (25% of the

compensation) is to be deducted from out of Rs.8,64,500/-. Thus,

2017 ACJ 2700

2009 (6) SCC 121

the respondents are jointly and severally liable to pay

Rs.6,48,375/- (Rs.8,64,500.00 - Rs.2,16,125.00), together with

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

realization.

In the result, the appeal is allowed in part and the

appellants/claimants are entitled to compensation of

Rs.6,48,375/- with interest @ 7.5% per annum from the date of

petition till the date of realisation. The respondents 1 to 3 are

jointly and severally liable to pay the said amount within three

months from the date of receipt of a copy of this order. Out of

the said amount, the claimant No.1 is entitled to Rs.2,48,375/-,

claimants 2 to 5 are entitled to Rs.1,00,000/- each. After such

deposit, the claimants are permitted to withdraw their respective

share amounts. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

_____________________ JUSTICE G. SRI DEVI 22.02.2022 Gsn