S. Swapna And 2 Others vs B.Chandrasekhar And Another
2022 Latest Caselaw 1208 Tel

                HONOURABLE JUSTICE G. SRI DEVI

                   M.A.C.M.A. No.1712 of 2012

JUDGMENT:

Being not satisfied with the quantum of compensation

awarded in the judgment and decree, dated 11.01.2012 passed in

O.P.No.1130 of 2008 on the file of the Principal District Judge,

Ranga Reddy District at L.B.Nagar, Hyderabad (for short "the

Tribunal"), the appellants/claimants preferred the present appeal

seeking enhancement of the compensation.

For the sake of convenience, the parties will be hereinafter

referred to as arrayed before the Tribunal.

The facts, in issue, are as under:

The claimants filed a petition under Section 166 of the Motor

Vehicles Act, 1988, claiming compensation of Rs.6,00,000/- for the

death of the deceased-Bhaskar, who died in a motor vehicle

accident that took place on 19.09.2008. It is stated that on the

said date the deceased, along with his friend Narsing Rao, were

proceeding on Motor Cycle bearing No. AP 28 BD 5841 and when

they reached in front of Punjab Dhaba near Shivaram Reddy

Godowns at Kompally, a Lorry bearing No.ADT 9139, was illegally

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parked on the highway, the motor cycle was hit to the stationed

lorry, as a result of which, the deceased and his friend sustained

grievous injuries and died. Basing on a complaint a case in Crime

No.237 of 2008 has been registered against the driver of the Lorry.

It is also stated that the deceased was aged about 28 years and was

running a tent house under the name and style as Mallikarjuna Tent

House and earning Rs.6,000/- per month. Due to sudden demise of

the deceased, the claimants, who are the wife, daughter and

mother of the deceased, lost their source of income. Hence, the

claimants filed the claim-petition against the respondents

1 and 2, who are the owner and insurer of the Lorry, respectively.

Before the Tribunal, the 1st respondent remained ex parte.

The 2nd respondent filed counter denying the averments made in

the claim-petition including the manner in which the accident took

place, age, income and avocation of the deceased. It is also

contended that the accident took place due to the negligence of

the rider of the motor cycle as such the claimants are not entitled

to any compensation. It is also stated that the compensation

claimed is excessive and prayed to dismiss the claim-petition.

Basing on the above pleadings, the Tribunal framed the

following issues.

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1. Whether the pleaded accident occurred resulting in the death of the deceased and if so, was it due to the fault of the driver of the Lorry bearing No.ADT 9139 or the deceased and if both are responsible, what is the responsibility of each?

2. Whether the Lorry in question belongs to R1 and stood insured with R2 and if so, whether the policy covers the risk of the deceased?

3. Whether the petitioners are entitled to compensation and if so to what amount and what is the liability of R1 and R2?

4. To what relief?

After analyzing the evidence available on record, the

Tribunal held that there was 50% negligence on the part of the

driver of the Lorry, which was stationed in the middle of the road

without taking any precautions and 50% negligence on the part of

the deceased and accordingly awarded an amount of Rs.3,00,000/-

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

date of realization to be paid by the respondents.

Learned Counsel for the claimants mainly submits that the

Tribunal erred in holding that there was 50% contributory

negligence on the part of the motorcyclists. It is also submitted

that though the deceased was getting Rs.6,000/- per month, the

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Tribunal erred in fixing the income of the deceased at Rs.4,000/-

per month. It is further submitted that as per the principles laid

down by the Apex Court in National Insurance Company Limited

Vs. Pranay Sethi and others1, the claimants are also entitled to

the future prospects. Therefore, it is argued that the income of

the deceased may be taken into consideration reasonably for

assessing loss of dependency and prayed to enhance the same.

Learned Counsel for the claimants relied upon the judgment of the

Apex Court in Pawan Kumar and another v. M/s. Harkishan Dass

Mohan Lal and others2.

Per contra, the learned Counsel for the Insurance Company

submits that the income of the deceased has rightly been taken by

the Tribunal as Rs.4,000/- per month since no documents have

been produced to prove the income of the deceased. On the point

of future prospects, learned Counsel submits that the matter has

been considered by the Apex Court in National Insurance

Company Limited Vs. Pranay Sethi and others (1 supra) and as

per that judgment, the claimants are entitled 40% amount towards

future prospects. It is further submitted that the compensation

2017 ACJ 2700

(2014) 3 SCC 590

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towards non-pecuniary damages has been rightly granted by the

Tribunal and the same need not be enhanced. It is also submitted

that the Tribunal has rightly held that there was 50% contributory

negligence on the part of the motorcyclist, which needs no

interference.

Basing on the rival contentions, the points that fall for

consideration in this appeal are:

1. Whether there was any contributory negligence on the part of the deceased motorcyclist?

2. Whether the claimants are entitled to any enhancement?

POINT NO.1:

The question of contributory negligence arises when there

has been some act or omission on the claimant's part, which has

materially contributed to the damage caused, and is of such a

nature that it may properly be described as `negligence'.

Negligence ordinarily means breach of a legal duty to care, but

when used in the expression "contributory negligence", it does not

mean breach of any duty. It only means the failure by a person to

use reasonable care for the safety of either himself or his

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property, so that he becomes blameworthy in part as an author of

his own wrong."

In the instant case, while answering the issue No.1, the

Tribunal has categorically held that the accident took place in the

broad day light i.e., at about 3.00 P.M., when the driver of the

crime lorry is responsible for parking the vehicle without any

proper precautions and the deceased motorcyclists are also

responsible for the unfortunate accident and the proportion of

contributory negligence can be determined at 50% each. The

findings of the Tribunal in paragraph No.8 of the impugned

judgment are necessary to be reproduced herein for better

appreciation of the matter.

"According to the petitioners, the accident was due to rash and negligent on the part of the driver of the lorry. The insurance company contends that the driver of the insured lorry is not at all responsible for the accident and that it is the deceased motorcyclist, who is solely responsible for the accident. P.W.1 is the 1st petitioner and admittedly she is not the eye witness to the accident. The eye witness is examined as P.W.2. He claims to be at a distance of 15 feet from the accident spot. He deposed that the stationed lorry was facing towards Medchal and the deceased motorcyclist came from behind the lorry and dashed against the stationed lorry. He claims that the

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accident was due to improper parking of the lorry and denied the suggestion that the deceased motorcyclists were responsible for the accident. The manner and circumstances in which the accident took place is also borne out from the documents that are placed on record. Admittedly, the motorcyclists have rammed into the stationed lorry. The sketch of the scene of offence is not produced. Therefore, it cannot be said that the stationed lorry was parked in such a way so as to give rise to the accident. In the charge sheet (Ex.A2) it is mentioned that the accident took place since the lorry was parked without any indicating signals. Taking into consideration the evidence on record and the manner in which the accident took place, I feel that the driver of the crime lorry cannot be held squarely and fully responsible for the accident. There is a contributory negligence on the part of the motorcyclists, who have rammed into the stationed lorry from behind. The accident took place in the broad day light i.e., at about 3.00 P.M., when the driver of the crime lorry is responsible for parking the vehicle without any proper precautions and the deceased motorcyclists are also responsible for the unfortunate accident and the proportion of contributory negligence can be determined at 50% each."

Admittedly, the accident took place in the broad day light

and the motor cycle rammed into the stationed lorry, which shows

that the rider of the motor cycle drove the motor cycle negligently

without observing the vehicles on the road. The judgment relied

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upon by the learned Counsel for the claimants is not applicable to

the facts of the present case as in the said case two vehicles were

involved but in the instant case the motor cycle rammed into the

stationed lorry. If the rider of the Motor Cycle should be vigilant

while driving his vehicle in the controllable speed, he could avoid

the accident. Thus there is fault on the side of the deceased motor

cyclist in dashing the stationed lorry, which can be fixed at 30% not

50% as determined by the Tribunal.

POINT NO.2:

Insofar as the quantum of compensation is concerned, though

the claimants claimed that the deceased was running a tent house

and earning Rs.6,000/- per month but no proof of income has been

filed. In catena of decisions the Apex Court held that even there is

no proof of income and earnings, it can reasonably be estimated.

Therefore, the Tribunal has rightly taken the income of the

deceased at Rs.4,000/- per month. As per the principles laid down

by the Apex Court in National Insurance Company Limited Vs.

Pranay Sethi and others (1 supra) the claimants are entitled to

addition of 40% towards future prospects. Therefore, monthly

income of the deceased comes to Rs.5,600/- (Rs.4,000/- +

Rs.1600/-). From this, 1/3rd is to be deducted towards personal

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expenses of the deceased following Sarla Verma v. Delhi

Transport Corporation3 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

Rs.3,733/- per month. Since the age of the deceased was 28 years

at the time of the accident, the appropriate multiplier is '17' as

per the decision reported in Sarla Verma v. Delhi Transport

Corporation (3 supra). Adopting multiplier '17', the total loss of

dependency would be Rs.3,733/- x 12 x 17, which comes to

Rs.7,61,532/-. Since there is contributory negligence on the part of

the rider of the motor cycle at 30% and the claimants did not

implead the owner and insurer of the said motor cycle, the

claimants are entitled to a sum of Rs.5,33,072/- towards 70% of the

compensation, payable by the respondents 1 and 2. Apart from

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

conventional heads as per Pranay Sethi's case (1 supra). Thus, in

all the claimants are entitled to Rs.6,10,072/-.

Accordingly, the M.A.C.M.A. is allowed in part. The

compensation amount awarded by the Tribunal is hereby enhanced

from Rs.3,00,000/- to Rs.6,10,072/-. The enhanced amount will

2009 ACJ 1298 (SC)

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carry interest at 7.5% p.a. from the date of passing of award by the

Tribunal till the date of realization, payable by respondents 1 and

2 jointly and severally. The enhanced amount shall be apportioned

in the manner as ordered by the Tribunal. There shall be no order

as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

__________________ JUSTICE G. SRI DEVI 17.03.2022 gkv