Telangana High Court

The Managing Director vs Bollaram Laxmi on 5 July, 2022

Bench: G.Anupama Chakravarthy

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                    M.A.C.M.A.No.435 of 2018
                               and
                    X-Objections No.13 of 2022

COMMON JUDGMENT :

        The appeal is filed by the appellant/TSRTC, being aggrieved

by granting compensation of Rs.3,85,000/- vide order dated

18.09.2017, in MVOP.No.531 of 2013 on the file of Motor

Accident Claims Tribunal-cum- I Additional District Judge,

Nizamabad. Whereas, the claimant has filed X-Objections No.13

of 2022, seeking to enhance the compensation to Rs.8,00,000/-.


2.      Initially, the claimant filed the MVOP before the Tribunal

claiming compensation of Rs.8,00,000/- for the death of her son

Bollaram Avinash, aged 22 years, who died in a motor accident on

21.06.2013 at 11.20 p.m., in front of Vandana Super Market,

Vinayaknagar, Nizamabad and the accident occurred due to the

rash and negligent driving of RTC bus bearing No.AP-25-Z-0053

by its driver.


3.      The Tribunal, on examining the oral and documentary

evidence before it, has partly allowed the O.P. by awarding a total
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                                                   MACMA.No.435 of 2018



compensation of Rs.3,85,000/- with costs and interest @ 7.5% per

annum from the date of petition till the date of deposit and further

directed the RTC to deposit the compensation within a period of

one month.


4.    Heard learned counsel for both the parties and perused the

record.


5.    It is contended by the learned counsel for the appellants/RTC

that the Tribunal has failed to appreciate the fact that the accident

occurred due to the mere negligence of the deceased but not due to

the negligence of the driver of the bus. It is further contended that

the Tribunal ought not to have considered the evidence of PW-2,

who is alleged to be the eyewitness to the accident. It is the further

contention of the appellant that the charge sheet was deliberately

and intentionally not filed before the Tribunal and the Tribunal

ought to have taken adverse inference for non-filing of the charge

sheet, as the claim is under Section 166 of the Motor Vehicles Act.

It is the further contention of the learned counsel for appellants that

the income of the deceased was taken as Rs.5,000/- per month
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instead of taking as Rs.3,000/-. Accordingly, he prayed to set aside

the orders passed by the Tribunal, dated 18.09.2017.


6.    On the other hand, the learned counsel for respondent/

Cross-Objector contended that the trial Court ought not to have

deducted 50% of the awarded amount towards contributory

negligence, as contributory negligence was not all pleaded by the

respondents and no issue was framed to that effect. Accordingly,

prayed to grant an amount of Rs.7,70,000/-, which the Tribunal has

arrived at, without deducting any amount towards contributory

negligence.

7. On perusal of the record, it is evident that PW-2 deposed

before the Tribunal that he has witnessed the accident while

travelling behind the RTC bus and that the driver of the bus had

suddenly applied brakes, due to which, the deceased hit the bus,

sustained severe injuries and succumbed to the same. The Tribunal

has discussed at length at paragraph 9 of its order about the

non-filing of charge sheet by the Police and not filing the referred

charge sheet, if any. The Tribunal has believed the evidence of

GAC, J MACMA.No.435 of 2018

PW-2 which is corroborating the evidence of PW-1 and also

documentary evidence and came to the conclusion that the accident

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

bus who applied sudden brakes, due to which, the deceased's

motorcycle hit the bus from behind and the deceased sustained

severe injuries and died while undergoing treatment in the hospital.

It is the specific finding of the Tribunal that due to the sudden

application of brakes by the driver of the bus, the accident occurred

and it is for the driver of the bus to observe the vehicles coming

from behind, from the rear view mirrors and after knowing that no

vehicle is coming from behind, then only, he can apply sudden

brakes. The Tribunal further came to the conclusion that applying

of sudden brakes itself shows the negligence of the driver of the

bus, without giving any caution to the riders coming from the back

side to control their vehicles and the said issue was answered

against the appellants herein.

8. Admittedly, there is no contra evidence on record to show

that there is contributory negligence on the part of the deceased and

due to the rash and negligent driving of the deceased, the accident

GAC, J MACMA.No.435 of 2018

had occurred. Though the Tribunal has given a finding that the

accident occurred due to applying of sudden brakes by the driver of

the bus, contra to it, an observation was being made as, "it appears

there is also contributory negligence on the part of the deceased.

Since the deceased who was riding his bike behind the crime bus,

he should have observed the bus cautiously which was going ahead

of him and he ought to have maintained a distance of 50 feet from

the bus". On perusal of the oral evidence of PW-2, it is evident

that distance is being maintained by the deceased as well as by

PW-2, who were travelling behind the bus and there is no evidence

on record to show that the distance is not being maintained by the

deceased at that particular point of time and inspite of care and

caution, the deceased could not avoid the accident. In general, no

person will go and hit a running bus and take risk of his life.

Further, it is to be noted that even no issue is framed before the

Tribunal with regard to contributory negligence. Therefore, the

question of contributory negligence on the part of appellant does

not arise. Dealing with similar issue, this Court in Chakali

GAC, J MACMA.No.435 of 2018

Swaroopa v. Mohd Ghouse (2016 ACJ 383), has observed at para

13, as under:-

"13. No issue has been framed by the Tribunal with regard to the contributory negligence, if any, on the part of the deceased. The respondent has not adduced any evidence to establish the contributory negligence on the part of the deceased. If the driver of the crime vehicle abstains himself from entering into the witness box, the Tribunal can draw an adverse inference. The respondent did not take any steps to examine the eyewitnesses to the accident to establish the negligence, if any, on the part of the deceased. The second respondent has not adduced any evidence much less legally admissible evidence to substantiate its stand...".

The aforesaid judgment squarely applies to the facts of the

the present case. Therefore, this Court finds that the Tribunal

ought not have held contributory negligence on the part of the

deceased, who died in the accident.

9. As far as the quantum of compensation is concerned, there is

no dispute with regard to the calculations made by the Tribunal in

arriving at compensation of Rs.7,70,000/-.

GAC, J MACMA.No.435 of 2018

10. In view of the above discussion, this Court is of the view that

the claimants are entitled to the total compensation of

Rs.7,70,000/-.

11. Accordingly, the appeal filed by the RTC i.e.