Telangana High Court

Smt. Sarojana 5 Others vs Venkateshwarlu 2 Others on 2 March, 2022

Bench: G Sri Devi

            HONOURABLE JUSTICE G. SRI DEVI

                   M.A.C.M.A. No.2498 of 2005

JUDGMENT:

Challenging the judgment and decree, dated 26.04.2005,

passed in O.P.No.335 of 2002 on the file of the Chairman, Motor

Accident Claims Tribunal-cum-District Judge, Adilabad (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

mother of one Kanakaiah (hereinafter referred to as "the

deceased"), filed a petition under Sections 166 and 163-A 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

25.08.1999. It is stated that on that day the deceased, along with

two others, was proceedeed in an Auto bearing No. A.P 13 U

4969 from Godavarikhani Cross Roads to 8th Incline and when the

auto reached near 11th Incline Crossroads, a Jeep bearing No.AP-

15-T-5759 came behind while overtaking the auto and dashed

against it from backside, due to which, the auto lost control and

turned turtle. As a result of which, the deceased fell down,

received head injury and died on the spot. Basing on a

complaint, a case in Crime No.121 of 2001 has been registered

against the driver of the Jeep. It is also stated that prior to the

accident, the deceased, who was aged about 38 years, was hale

and healthy and was earning Rs.7,643/- per month as a Coal

Filler in Singareni Colleries Company Limited. Hence, the

claimants filed claim-petition against respondents 1 to 3, who are

the owner of jeep, owner of auto and insurer of the auto

respectively.

Before the Tribunal, the respondents 1 and 2 remained

ex parte. The 3rd respondent filed counter contending that even

as per the petition averments, the jeep driver was negligently hit

the auto, in which the deceased was traveling, and that the driver

of the jeep was prosecuted for rash and negligent driving. It is

also contended that since there is no pleading in the petition that

the driver of the auto was negligent in driving the auto, the

insurer of the auto is not liable to pay compensation. It is also

contended that the amount claimed is excessive, arbitrary and out

of all proportions and prayed to dismiss the petition.

Basing on the above pleadings, the Tribunal has framed the

following issues:-

1. Whether the deceased viz., Kanakaiah, died in a motor accident dated 25.08.1999 involving vehicle Jeep No. A.P 15 T 5759 and Auto No. A.P 13 U 4960?

2. If so, whether the accident took place on account of fault of respondent Nos.1 and 2?

3. Whether the claimants are entitled for compensation? If so, to what amount and from whom?

4. To what relief?

On behalf of the claimants, P.Ws.1 and 2 were examined

and got marked Exs.A1 to A6. On behalf of the respondents,

neither oral nor documentary evidence was adduced.

After considering the oral and documentary evidence on

record, the Tribunal came to the conclusion that the accident

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

of Jeep and as such, the 1st respondent, who is the owner of the

Jeep, alone is liable to pay compensation of Rs.9,48,000/- with

interest @ 9% p.a. from the date of petition till the date of

payment Challenging the same, the present appeal is filed.

Heard the learned Counsel for the appellants/claimants

and learned Counsel for the 3rd respondent and perused the

record.

Learned Counsel for appellants would submit that P.W.2 in

his evidence categorically deposed that the accident occurred

while the auto driver tried to overtake a jeep, the auto was turned

turtle, but the Tribunal erred in holding that the accident

occurred only due to the negligence of the driver of the Jeep. 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.

2017 ACJ 2700

Per contra, the learned Stand Counsel for the 3rd

respondent-Insurance Company submits that since the accident

occurred only due to the negligence of the driver of the jeep, the

Tribunal has rightly held that the 1st respondent-owner of the

Jeep alone is liable to pay the compensation.

A perusal of the material available on record would show

that P.W.2, who is said to be an eye witness to the incident, has

categorically deposed that the while the driver of the auto was

tried overtake a jeep, it was turned turtle and as a result of which,

the deceased, who was traveling in the auto, sustained injuries

and died.

According to the settled principle of law laid down by the

Apex Court in National Insurance Company Ltd. Vs. Sinitha &

others2 the initial burden is on the respondents to prove that the

accident not occurred due to negligent act of the driver of the

Auto, but to prove the said contention, the 3rd respondent did not

examine the driver of the auto, who is the competent person to

speak about the manner in which the accident occurred or any

AIR 2012 SC page 797

direct witness to prove the manner of accident and to attribute

negligence to the driver of the jeep or the circumstances which

led to the accident. Therefore, the 3rd respondent miserably failed

to discharge its initial burden to prove that the accident has not

occurred due to rash and negligent act of the driver of the Auto.

When once the 3rd respondent failed to discharge its initial

burden, the claimants need not establish the occurrence of

accident due to rash and negligent act of the driver of the auto.

Admittedly, the auto and jeep were involved in the accident and

the deceased was traveling in the auto at the time of accident. To

determine the question as to who contributed to the happening of

the accident, it becomes relevant to ascertain who was driving his

vehicle negligently and rashly and in case both were so doing

who were more responsible for the accident and who of the two

had the last opportunity to avoid the accident. As per the

evidence of P.W.2, who is said to be eyewitness to the occurrence

of accident, deposed that the accident occurred while the auto

driver tried to overtake a jeep, it was turned turtle. Had, the

driver of the auto taken minimum care and caution in driving the

auto and he did not try to overtake the jeep, the accident would

not have occurred.

In T.O.Anthony v. Karvarnan and others3 the Apex Court

held as under:-

"9. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned.

10. `Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each

2008 ACJ 1165

wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong- doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence."

In view of the law laid down by the Apex Court in

T.O.Anthony case (3 supra) and in view of the oral evidence

coupled with the documentary evidence adduced by the

claimants, the finding of the Tribunal that the accident occurred

only due to the negligence of the jeep driver and the 1st

respondent, owner of the jeep alone is liable to pay compensation

appears to be incorrect and the same is hereby set aside, holding

that there is a contributory negligence on the part of both the

drivers of the jeep as well as the auto at 50% each.

Insofar as the future prospects are concerned, this point has

already been considered by the Apex Court in Pranay Sethi (1

Supra), and it has been held that the benefit of future prospects

cannot be denied to a self-employed person. The Apex Court has

further held that where the deceased was below the age of 40

years, an addition of 40% of the established income; where the

deceased was between 40 to 50 years, an addition of 25% of the

established income; and where the deceased was between 50 to 60

years, an addition of 10%, should be granted towards future

prospects.

After considering the evidence available on record, the

Tribunal held that the deceased was aged about 30 years at the

time of the accident. In view of the judgment of the Apex Court

in Sarla Verma v. Delhi Transport Corporation4 the suitable

multiplier would be '17'. If the income of the deceased at

Rs.7,250/- per month, as fixed by the Tribunal is taken, and if

50% of the income is added to the actual income of the deceased

towards future prospects, the monthly income of the deceased

comes to Rs.10,875/- (Rs.7,250/- + Rs.3,625/-). After deducting

1/4th amount towards his personal and living expenses, the

contribution of the deceased would be Rs.8,156/- per month and

2009 ACJ 1298 (SC)

Rs.97,875/- per annum. Hence, applying multiplier '17', the total

loss of dependency would be Rs.97,875/- x 17 = Rs.16,63,875/-.

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.17,40,875/-. As stated

above, since there is contributory negligence of both the drivers

of the jeep as well as the auto at 50% each, the 1st respondent is

liable to pay 50% of the said compensation and the 2nd and 3rd

respondents are jointly and severally liable to pay the remaining

50% of the compensation.

At this stage, the learned Counsel for the 3rd respondent/

Insurance company submits that the claimants claimed only a

sum of Rs.10,00,000/- as compensation and the quantum of

compensation, which is now awarded would go beyond the claim

made, which is impermissible under law.

In Laxman @ Laxman Mourya Vs. Divisional Manager,

Oriental Insurance Company Limited and another5, the Apex

(2011) 10 SCC 756

Court while referring to Nagappa Vs. Gurudayal Singh6 held as

under:

"It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident."

In view of the Judgments of the Apex Court referred to

above the claimants are entitled to get more amount than what

has been claimed. Further the Motor Vehicles Act being a

beneficial piece of legislation, where the interest of the claimants

is a paramount consideration the Courts should always

endeavour to extend the benefit to the claimants to a just and

reasonable extent.

Accordingly, the appeal is allowed and the compensation

amount awarded by the Tribunal is hereby enhanced from

Rs.9,48,000/- to Rs.17,40,875/-. The enhanced amount will carry

interest at 7.5% p.a. from the date of order passed by the Tribunal

i.e.26.04.2005 till the date of realization. The 1st respondent is