M/S. New India Assurance Company ... vs Smt Bebavathi
2022 Latest Caselaw 5286 Tel

     HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

      M.A.C.M.A.Nos.1165 of 2019 and 1235 of 2019

COMMON JUDGMENT:

      These two appeals are being disposed of by this

common judgment since M.A.C.M.A.No.1165 of 2019 filed

by the claimants and M.A.C.M.A.No.1235 of 2019 filed by

the Insurance Company challenging the quantum of

compensation, are directed against the very same award

and decree, dated 06.08.2015 made in M.V.O.P.No.397 of

2013 on the file of the Motor Vehicle Accident Claims

Tribunal-cum-Principal      District     Judge,   Medak       at

Sangareddy (for short "the Tribunal").


2.    For the sake of convenience, hereinafter the parties

will be referred to as per their array before the Tribunal.


3.    The facts, in issue, are as under:


      The claimants filed a petition under Section 166 of

the Motor Vehicles Act, 1988 against the respondents 1

and 2, claiming compensation of Rs.7,00,000/- for the

death of one Baswaraj Patil (hereinafter referred to as "the

deceased"), who died in the accident that occurred on 17-

05-2013. According to the claimants, on the fateful day,

while the deceased was proceeding on a motorcycle along

with another, auto bearing No.AP 23 Y 2690, owned by

respondent No.1 and insured with respondent No.2, being

driven by its driver in a rash and negligent manner and at

high speed, dashed the motorcycle. As a result, the

deceased received multiple injuries and died on the spot.

According to the claimants, the deceased was 40 years and

earning Rs.15,000/- per month by doing business.

Therefore, they laid the claim against the respondents

seeking compensation of Rs.7,00,000/- under different

heads.

4. Before the Tribunal, while the 1st respondent

remained ex parte, 2nd respondent filed counter denying the

averments in the claim-petition including the manner in

which the accident took place, age, avocation and income

of the deceased. It is further contended that the

compensation claimed is excessive and exorbitant and

prayed to dismiss the claim-petition.

5. After considering the oral and documentary evidence

available on record, the Tribunal held that the accident

occurred due to the negligent driving of both the vehicles

i.e., the driver of the auto and the rider of motorcycle and

having apportioned the contributory negligence at 75% on

the part of the rider of the motorcycle i.e., the deceased, the

tribunal has awarded the total compensation of

Rs.1,80,000/- to be paid by the respondent Nos.1 and 2

jointly and severally. Challenging the same, the present

Appeals came to be filed by the claimants and the

Insurance Company respectively.

6. Heard both the learned counsel and perused the

material available on record.

7. The main contention raised by the learned Counsel

for the claimants is that the tribunal has committed grave

error in fixing the contributory negligence at 75% on the

part of the deceased merely on the ground that the

accident occurred as a result of head on collision in a

broad day light. In this regard, the tribunal has not

properly appreciated the evidence of PW-2, eyewitness, who

categorically deposed that the accident took place while the

deceased was proceeding on a two wheeler, the offending

vehicle came in opposite direction at high speed negligently

and dashed the two wheeler. Therefore, the learned

counsel for the claimants seeks to set aside the findings of

the tribunal in this regard. As regard the quantum of

compensation, it is contended that though the claimants

have established that the deceased was earning

Rs.15,000/- per month by doing business, the tribunal has

taken the meagre amount of Rs.6,000/- per month as the

monthly income of the deceased. It is further contended

that as per the principles laid down by the Apex Court in

National Insurance Company Limited Vs. Pranay Sethi

and others1, considering the age of the deceased 40 years,

future prospects at 40% to the established income of the

deceased needs to be added. It is lastly contended that as

per the decision of the Apex Court in Pranay Sethi's case

(1 supra), the claimants are entitled to Rs.77,000/- under

conventional heads.

2017 ACJ 2700

8. Per contra, learned Standing Counsel for the

Insurance Company has submitted that the Tribunal has

erred in fixing 25% contributory negligence on the part of

the driver of the offending vehicle, since the contents of

F.I.R., Ex.A1, clearly discloses that the accident occurred

due to the gross negligence on the part of the deceased.

Coming to the quantum of compensation, the learned

Standing Counsel has submitted that the Tribunal has, in

fact, granted adequate compensation.

9. The Tribunal while considering issue No.1 as to

whether the death of the deceased occurred due to the rash

and negligent driving of the driver of the crime vehicle, has

held that the deceased died in the accident in view of

collision between two wheeler and auto and contributory

negligence is to be assessed in the ratio of 75% on the part

of the deceased and 25% on the part of the driver of the

auto. It is relevant to extract the findings of the Tribunal in

this regard. At para-11, the Tribunal has observed as

under:

"11. As seen from the evidence of P.W.1, she categorically deposed that the accident occurred due to negligence of driver of auto and there was no negligence on the part of deceased. But, she is not eyewitness to the accident. Coming to the evidence of P.W.2 eyewitness, he categorically deposed that while himself and deceased were going on a two wheeler, auto came in opposite direction in high speed negligently and dashed two wheeler, resulting in the death of deceased. That apart, the petitioners also relied upon the documentary evidence marked as Exs.A1 to A5. Ex.A1 is certified copy of F.I.R., which shows about accident. Ex.A4 certified copy of P.M.E. report discloses that deceased died in the accident. Ex.A5 is certified copy of final report. Of course, Exs.A1 & A5 show that case was not registered against auto and police had shown that it is case of self negligence."

Further, at para-12, the Tribunal observed that, "it is a day

occurrence. Further it is not disputed that auto and two

wheeler are involved in the accident. Such being the case, I

see there is every possibility of contributory negligence on

the part of deceased as well as driver of auto since it is case

of collision.

10. Thus, the basis for the Tribunal to arrive at a

conclusion that there was contributory negligence on the

part of the deceased at 75% is solely based on the contents

of Ex.A1 F.I.R. and on the ground that the accident had

occurred as a result of head on collision in a broad day

light. In this regard, it is relevant to mention that the

purpose of lodging the FIR in motor accident cases is

primarily to intimate the police to initiate investigation of

criminal offences. Lodging of FIR certainly proves factum of

accident so that the victim is able to lodge a case for

compensation. In a similar case, this Court in National

Insurance Company Limited v. Islavath Chinnamma2,

has categorically held that "the contents of FIR cannot be

treated as conclusive proof of such aspects. The relevance of

FIR in the claim petitions filed under the Act, is virtually

limited to see whether the accident and the death or injuries

have taken place, at all. Beyond that, it cannot be taken to

use of, to affix or apportion the liability in causing the

accident". Thus, when there is abundant evidence

available in the form of P.W.2, an eyewitness to the

accident, who has categorically deposed that the accident

occurred only due to the rash and negligent driving of the

driver of the auto, it is not proper on the part of the

tribunal to fix the contributory negligence on the part of

the deceased at 75% based on the contents of Ex.A.1, FIR.

Therefore, the said findings of the tribunal are set aside

2006 (4) ALD 268

and this Court holds that the accident occurred only due to

the rash and negligent driving of the driver of the offending

auto.

11. Coming to the aspect of quantum of compensation,

although the claimants have claimed that the deceased was

doing business and earning Rs.15,000/- per month, except

the self-serving statement, no income proof or any

independent person in this regard was examined by the

claimants. In such circumstances, the tribunal has rightly

taken the income of the deceased at Rs.6,000/- per month.

However, as rightly contended by the learned counsel for

the claimants, the claimants are entitled to addition of 40%

towards future prospects to the established income, as per

the decision of the Apex Court in Pranay Sethi (1 supra).

Therefore, future monthly income of the deceased comes to

Rs.8,400/- (Rs.6,000/- + Rs.2,400/- being 40% thereof).

From this, 1/4th is to be deducted towards personal

expenses of the deceased following Sarla Verma v. Delhi

Transport Corporation3 as the dependents are five in

2009 ACJ 1298 (SC)

number. After deducting 1/4th amount towards his

personal and living expenses, the contribution of the

deceased to the family would be Rs.6,300/- per month.

Since the deceased was 40 years by the time of the

accident, the appropriate multiplier is '15' as per the

decision reported in Sarla Verma v. Delhi Transport

Corporation (supra). Adopting multiplier '15', the total

loss of dependency would be Rs.6,300/- x 12 x 15 =

Rs.11,34,000/-. In addition thereto, the claimants are

also entitled to Rs.77,000/- under the conventional heads

as per Pranay Sethi's (supra). Thus, in all the claimants

are entitled to Rs.12,11,000/-.

12. Accordingly, while dismissing M.A.C.M.A.No.1235 of

2019 filed by the Insurance Company, M.A.C.M.A.No.1165

of 2019 filed by the claimants stand allowed by enhancing

the compensation amount awarded by the Tribunal from

Rs.1,80,000/- to Rs.12,11,000/-. The enhanced amount

shall carry interest at 7.5% per annum from the date of the

order passed by the Tribunal till the date of realization,

payable by respondent Nos.1 and 2 jointly and severally.

The enhanced amount shall be apportioned in the manner

as ordered by the Tribunal. Time to deposit the

compensation is two months from the date of receipt of a

copy of this order. However, the claimants are directed to

pay the deficit court fee on the enhanced compensation.

There shall be no order as to costs.

13. Miscellaneous petitions, if any, pending shall stand

closed.

__________________ M.G.PRIYADARSINI,J 26.10.2022 Tsr/pgp