The Royal Sundaram Alliance ... vs Smt.Seema Parande 5 Others
2022 Latest Caselaw 5418 Tel

 THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                    M.A.C.M.A.No.45 OF 2016
JUDGMENT:

This appeal is directed against the award dated 11.01.2013 in

O.P.No.17 of 2009, on the file of the Chairman, Motor Accidents

Claims Tribunal (III Additional District Judge), Asifabad,

(for short 'the Tribunal), wherein the said claim application filed

by respondent Nos.1 to 3 herein seeking compensation was

allowed, awarding Rs.23,16,000/- with interest at 7.5% per annum

from the date of petition.

2. Heard learned counsel for the appellant-insurer and learned

counsel respondent Nos.1 to 3. Perused the record.

3. During the pendency of this appeal, this court by order dated

13.08.2015, dismissed the appeal against respondent No.4-owner

of the tipper, as batta was not paid within the time granted.

4. Respondent Nos.1 to 3 herein filed claim application seeking

compensation of Rs.20 lakhs on account of death of the deceased

Parande Jayanth Rao in a motor vehicle accident that occurred on

17.08.2008 at about 01:15 a.m., on Asifabad-Bellampally road near

Repallewada. Claimant No.1 is the wife, claimant No.2 is the

daughter and claimant No.3 is the son of the deceased.

5. According to the claimants, on that day, the deceased was

proceeding to Bellampally from Asifabad in Government jeep

bearing No.AP 01 5987, as its driver, after attending a meeting at

Utnoor and when they reached Repallewada church, suddenly the

said jeep hit the negligently stationed tipper/lorry bearing No.AP

20X 4459 from backside which was parked on the middle of the

road in the darkness without keeping back lights, indicators or

parking lights on and without keeping any parking or warning

signals like erection of red cloth flag on backside and on passing

side or without making any stone or green leaves boundary of

marking from some distance in and around the said lorry.

The accident occurred due to the gross negligence of tipper/lorry

driver. Resultantly, the deceased and his DFO, who were in the

jeep, sustained grievous injuries through out body and the jeep was

also completely damaged. The deceased sustained grievous

injuries and fractures to his head, fore head, hands, legs, arms,

chest and the complete face including eyes, nose cheek and

mandible and they were shifted to Government Hospital,

Bellampally, where the deceased was given first aid and was later

shifted to Government Hospital, Mancherial for better treatment

where he was treated for (2) days and as his condition was serious,

he was shifted to Osmania General Hospital, Hyderabad on

19.08.2008. The deceased succumbed to the injuries while

undergoing treatment in the said hospital on 20.08.2008 at about

12.20 p.m. Police, Tandur registered a case in Cr.No.79/2008 for

the offence punishable under Section 337 IPC and thereafter filed

charge sheet against the driver of the lorry for the offences

punishable under Sections 304-A and 337 IPC. The deceased was

aged 45 years and was hale and healthy at the time of accident and

working as driver in forest department getting a salary Rs.14,000/-

per month. Owing to the sudden demise of the deceased, the

claimants lost their livelihood and suffered pain, mental agony and

heavy loss.

6. The appellant-insurer and respondent No.5-Divisional Forest

Officer filed separate counters opposing their claim and denying

their liability to pay the compensation. Respondent No.4- owner of

the lorry remained ex parte before the Tribunal.

7. During enquiry, claimant No.1 herself examined as P.W.1

and marked Exs.A-1 to A-7. No evidence was let in by the

appellant-insurer and other respondents.

8. On a consideration of the evidence available on record, the

Tribunal held that the accident occurred due to the rash and

negligent act of parking of the lorry by its driver. The Tribunal

held that the claimants were entitled for a total compensation of

Rs.23,16,000/-. Accordingly, an award was passed for the said

amount with interest at 7.5% per annum. The owner and the

insurer of the lorry were held liable to pay the compensation.

Challenging the said findings of the Tribnunal, the appellant-

insurer preferred the present appeal.

9. Learned counsel for the appellant-insurer would contend that

the Tribunal failed to consider that at the time of accident, the lorry

was not in motion and it was parked on the side of the road due

to puncture and there was no negligence on the part of the driver;

that that the Tribunal could have considered the aspect of

contributory negligence, as total negligence cannot be attributed to

the driver of the lorry and that the owner of the jeep, driven by the

deceased, who is also employer of the deceased, is liable to the

extent of Workmen's Compensation Act limits along with the

insurer; that the Tribunal erred in not considering the negligence

on the part of the deceased; that the Tribunal erred in awarding

compensation more than the amount claimed. Learned counsel

for the appellant relied on the decision of this court in

ADHIKARALA JAGADEESWARA RAO v. GOPALA

KRISHNA TRANSPORT, VISAKHAPATNAM AND

OTHERS1.

10. Learned counsel for respondent Nos.1 to 3 submits that the

Tribunal has not committed any error and the evidence, both oral

and documentary, was considered in proper perspective by the

Tribunal and held that there was no negligence on the part of the

driver of the jeep and the accident occurred only due to the rash

1 2005(1) ALD 111

and negligent parking of the lorry by its driver and prayed to

dismissed the appeal.

11. Thus, after hearing the submissions of both the learned

counsel, the following points arise for determination:

(i) whether the appellant proved the finding of the Tribunal that the accident occurred due to the negligent act of the driver of the lorry as erroneous in law and facts and evidence on record?

(ii) whether the award of compensation by the Tribunal needs interference?

POINTS (i) & (ii):

12. A perusal of the material on record would disclose that

on 17.08.2008 at about 01:15 a.m., the deceased, as driver, was

proceeding from Asifabad to Bellampally in a Government jeep

belonging to the forest department along with the Divisional Forest

Officer, Bellampally after attending a meeting at Utnoor and when

they reached near Repallewada Church, suddenly the said jeep hit

the negligently stationed tipper/lorry from rear side which was

parked on the middle of the road in the darkness without keeping

the backlights, indicators or parking lights on and without keeping

any parking or warning signals like erection of red cloth flag on

backside and on passing side or without making any stone or green

leaves boundary of marking from some distance in around the said

lorry.

13. Section 122 of the Motor Vehicles Act which deals with

leaving vehicle in dangerous position reads as:

"No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers".

14. The owner of the vehicle has the right to drive the vehicle on

the road and also has the right to park the vehicle, but the parking

of the vehicle cannot cause any danger or obstruction to other

passersby or passengers. This is a restriction on the road to park the

vehicle.

15. Undisputedly, the entire material on record would nowhere

disclose that the driver of the lorry while parking the same has

taken any precautions as stated above. The lorry was parked

without any indicators or parking lights on and without keeping

any parking or warning signals. The jeep, driven the deceased, hit

the lorry from behind. As a result, the deceased and the DFO

sitting in the car sustained grievous injuries. Having stated the

mandatory requirement of law, it is held that the driver of the lorry

was in breach of duty to take care and was thus negligent. In the

absence of any indication by way of lights to indicate that the lorry

was stationed on the road by covering a portion of the road, the

accident had occurred. The time of accident is 01:15 a.m. As the

driver of the jeep was proceeding on the road and could not notice

the lorry that was parked on the road, the same resulted in the jeep

dashing the lorry from behind. Therefore, there was negligence on

the part of the driver of the lorry in parking the same on the road

without any parking lights or warning signals. The Motor Vehicle

Inspector's report in Ex.A-7 discloses that the lorry was in fit

condition with no mechanical defect and there was no report to

show that the lights of the lorry were non-functional.

16. On account of there being no indication whatsoever that the

lorry was parked on the road during night, the driver of the vehicle

who was also proceeding on the left side could not imagine or

gauge or expect that there was a vehicle that was parked towards

the left side of the road. In normal circumstances, the vehicle

would hit the stationed vehicle parked negligently. Therefore, no

negligence can be attributed to the driver of the jeep, as the lorry

was stationed negligently without taking any caution. As such, the

total negligence was on the part of the driver of the lorry. Thus, the

driver of the lorry was totally negligent and committed the act in

causing the accident and there was no composite or contributory

negligence on the part of the driver of the jeep. Therefore, the

driver, owner and insurer of the jeep cannot be held liable.

The Tribunal had rightly held that the owner and the insurer of the

lorry are liable to pay the compensation.

17. Now, coming to point No.2, it is fairly contended by learned

counsel for the appellant that the deceased was a government

employee working as driver and his income and age is also not

disputed. It is only disputed that the owner of the jeep, driven by

the deceased, and the insurer i.e., respondent Nos.5 and 6 herein

are jointly liable along with the appellant herein.

18. Learned counsel for the appellants submits that it is

inevitable that the liability has to be worked under the Workmen's

Compensation Act on the part of the employer of the deceased and

also the insurer of the jeep. In view of the finding on point No.1,

the contention of learned counsel for the appellant cannot be

accepted.

19. The Tribunal considering the age of the deceased as 45 years

added additional 30% towards future prospects to the monthly

income of the deceased and calculated the income at Rs.20,410/-

per month (Rs.15,700/- + Rs. 4710/- i.e., Rs.15,700/- x 30%).

As there were three dependants, the Tribunal deducted one-third

of the income of the deceased towards personal expenses and

arrived at Rs.13,607/- per month (Rs.20,410/- minus Rs.6803/-

i.e., Rs.20,410/- x 1/3) and Rs.1,63,284/- per annum (Rs.13,607/- x

12) and after applying the multiplier '14' as per the decision of the

Hon'ble Apex Court in SARLA VARMA v. DELHI

TRANSPORT CORPORATION2, awarded compensation of

Rs.22,85,976/- (Rs.1,63,284/- x 14) towards loss of dependency

and the same is just and reasonable. The amounts awarded by the

Tribunal i.e., Rs.10,000/- towards loss of consortium, Rs.10,000/-

towards loss of estate and Rs.10,000/- towards funeral and

travelling expenses are set aside.

20. In view of the decision of the Hon'ble Apex Court in

NATIONAL INSURANCE COMPANY LIMITED v.

PRANAY SETHI AND OTHERS3, the claimants are entitled for

compensation of Rs.70,000/- towards conventional heads i.e.,

Rs.40,000/- towards loss of consortium, Rs.15,000/- towards loss

of estate and Rs.15,000/- towards funeral expenses. Claimant

Nos.2 and 3 are the children of the deceased and they are entitled

for parental consortium at Rs.40,000/- each as per the decision of

the Hon'ble Apex Court in MAGMA GENERAL INSURANCE

COMPANY LIMITED v. NANU RAM @ CHUHRU RAM4.

If the same is added, the compensation works out to Rs.24,35,976/-

2009(6) SCC 121

2017 ACJ 2700 4 2018 Law Suit (SC) 904

(Rs.22,85,976/- + Rs.70,000/- + Rs.80,000/-). However, the gross

amount awarded by the Tribunal is Rs.23,16,000/-. Since the

claimants have not preferred any appeal, the gross amount awarded

by the Tribunal does not call for any interference.

21. For the aforesaid reasons, the appeal filed by the appellant-

insurance company is dismissed. There shall be no order as to

costs.

22. Pending miscellaneous petitions, if any, stand closed.

_______________________ A.SANTHOSH REDDY, J 28.10.2022 Lrkm