Chirige B Ramaramba, vs B. Venkateshwar Reddy,
2022 Latest Caselaw 5508 Tel

     THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                   M.A.C.M.A.No.2877 of 2015
JUDGMENT:

Being not satisfied with the quantum of compensation

awarded vide award and decree, dated 16.11.2015 passed in

M.V.O.P.No.215 of 2014 on the file of the Chairman, Motor

Accident Claims Tribunal-cum-II Additional District Judge at

Warangal (for short "the Tribunal"), the appellants/claimants

preferred the present appeal seeking enhancement of the

compensation.

2. For the sake of convenience, the parties will be

hereinafter referred to as arrayed before the Tribunal.

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

4. The claimants filed a petition under Section 166 of the

Motor Vehicles Act, 1988 claiming compensation of

Rs.25,00,000/- for the death of one Ch.Anjaiah (hereinafter

referred to as "the deceased"), who died in a motor vehicle

accident that occurred on 29.05.2013. It is stated that on

29.05.2013 while the deceased was proceeding on a

motorcycle as pillion rider that was being driven by his son,

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when they reached Railway Under Bridge, Alair, at about 1:00

P.M., the crime vehicle i.e., Tipper Lorry bearing Registration

No.AP 27 V 8402, owned by respondent No.1 and insured

with respondent No.3, being driven by its driver in a rash and

negligent manner, hit the motorcycle in the opposite direction.

As a result, the deceased fell down on the right side of the

road, front wheels of the lorry ran over the head of the

deceased, which resulted in his instantaneous death. It is

also stated that the deceased was aged about 52 years and

working as Librarian at Zilla Parishad at Rajapet and was

drawing Rs.26,185/- per month. As the accident occurred

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

Lorry, the claimants filed the claim-petition against the

respondents 1 to 4.

5. Before the Tribunal, while the respondent Nos.1 and 2

remained ex parte, respondent Nos.3 and 4 contested the O.P.

by filing counter denying the manner in which the accident

took place, including the age, avocation and income of the

deceased. It is also stated that the quantum of compensation

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claimed is excessive and baseless and prayed to dismiss the

petition.

6. Considering claim, counter and the oral and

documentary evidence available on record, the Tribunal held

that there was 50% negligence on the part of the rider of the

motorcycle on which the deceased was traveling as pillion

rider and 50% negligence on the part of the driver of the crime

vehicle i.e., Tipper Lorry and accordingly awarded an amount

of Rs.13,99,972/- with interest @ 7.5% per annum from the

date of petition till the date of realization to be paid by the

respondent Nos.1, 3 and 4 jointly and severally. Challenging

the same, the present appeal came to be filed by the

claimants seeking enhancement of compensation.

7. Heard and perused the record.

8. It is contended by the learned counsel appearing for the

appellants that the Tribunal erred in holding that there was

50% contributory negligence on the part of the rider of the

motorcycle on which the deceased was traveling as pillion

rider, without there being any evidence adduced either by the

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owner or by the Insurance Company. As regards the

quantum of compensation, it has been contended that as per

Ex.X3, salary certificate, the salary of the deceased was fixed

at Rs.46,643/- due to implementation of pay revision which

came into effect on 02.06.2013, and therefore, the Tribunal

ought to have taken the said income into consideration while

calculating the loss of dependency.

9. On the other hand, the learned Standing counsel for the

respondent Nos.3 and 4, Insurance company, has contended

that it is a case of head on collision and therefore, the

Tribunal has rightly fixed the contributory negligence at 50%

on the part of the rider of the motorcycle and 50% on the part

of the driver of the offending vehicle and the same needs no

interference by this Court. As regards the quantum of

compensation, it is contended that by the time of the

accident, the gross salary of the deceased was taken into

consideration by the Tribunal based on Ex.A4, salary

certificate of the deceased, however, Exs.X3 and X4, salary

certificates are after implementation of the pay revision which

came into force on 02.06.2013 but the accident was occurred

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on 29.05.2013 and therefore, the Tribunal has rightly

discarded Exs.X3 and X4 since it has already added future

prospects at 15% considering the age of the deceased. It is

lastly contended that as per the decision of the Apex Court in

National Insurance Company Limited Vs. Pranay Sethi

and others1, the claimants are entitled to only Rs.77,000/-

under conventional heads, but not Rs.1,25,000/- as was

awarded by the Tribunal. Even the Tribunal has erred in

awarding Rs.25,000/- under the head of pain and suffering.

10. 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 property, so that he becomes

blameworthy in part as an author of his own wrong."

2017 ACJ 2700

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

Tribunal, considering the fact that the accident took place in

the broad day light in the afternoon and as it was head on

collision, has inferred that there was negligence on the part of

the drivers of both the vehicles. The findings of the Tribunal

in paragraph No.12 of the impugned award are necessary to

be reproduced herein for better appreciation of the matter.

"12. .... The charge sheet is not filed and marked during evidence. However, according to the pleadings in the O.P. charge sheet is filed and the same is numbered as C.C.No.900 of 2013 on the file of the Judicial First Class Magistrate, Alair. On account of the fact that the accident occurred due to head on collision that too in broad day light in the afternoon, it has to be inferred that there was negligence on the part of drivers of both the vehicles. There is no reason for P.W.1 not to notice a heavy vehicle like Tipper Lorry loaded with granite coming in the opposite direction. Therefore, issue No.1 is answered holding that drivers of both the vehicles are responsible for occurrence of accident resulting in the death of the deceased. The negligence of each of the drivers is inferred to be 50%."

12. Thus, as seen from the findings extracted above, merely

because the accident was as a result of head on collision in a

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broad day light, the tribunal came to the conclusion that

there was contributory negligence on the part of the rider of

the motorcycle at 50%. Admittedly, the charge sheet was not

filed before the Tribunal. During pendency of the appeal, by

way of additional evidence, the claimants have produced the

copy of charge sheet, dated 28.06.2013. As seen from the

contents of the charge sheet, the police after due investigation

into the crime, have laid the charge sheet against the driver of

the crime vehicle holding that the accident occurred due to

the rash and negligent driving of the Tipper Lorry by its

driver. Even the charge sheet reflects that the driver, who

was accused, has admitted his guilt of negligent driving,

which resulted into the accident. Merely because the

accident was due to head on collision, it cannot be presumed

that there was contributory negligence on the part of both the

drivers, more particularly, when the charge sheet was filed by

the Police concluding that the accident had occurred as a

result of the negligence on the part of driver of the crime

vehicle only. Such being the case and based on the contents

of the charge sheet, the finding of the Tribunal that there was

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negligence on the part of the rider of the motorcycle on which

the deceased was proceeding as pillion rider, is not

sustainable under law and the same is set aside holding that

the accident had occurred due to the rash and negligent

driving of the driver of the offending vehicle i.e., Tipper lorry

only.

13. As regards the quantum of compensation, as per Ex.A4,

salary certificate, the deceased was drawing a salary of

Rs.26,185/- per month. It is the contention of the learned

counsel for the claimants that due to the implementation of

pay revision commission which came into effect on

02.06.2013, as per Ex.X3, the salary of the deceased would be

Rs.46,958/- per month had the deceased alive. I am afraid to

accept the said contention since the accident occurred on

29.05.2013 and the pay revision commission came into force

on 02.06.2013, which is subsequent to the accident.

Therefore, since the future prospects of the deceased have

already been taken care of while fixing the loss of dependency,

the contention of the learned counsel for the claimants that

the tribunal ought to have taken into consideration the salary

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fixed by implementation of pay revision is rejected. Thus, the

monthly salary of the deceased was rightly taken into

consideration at Rs.26,815/- by the Tribunal. Considering

the age of the deceased as 52 years, the Tribunal has rightly

added 15% towards future prospects to the established

income of the deceased and thereby, the monthly income of

the deceased was rightly fixed at Rs.30,113/-. After

deducting 1/3rd therefrom towards personal expenses of the

deceased, the net monthly contribution of the deceased to the

family comes to Rs.20,075/- which can be rounded off to

Rs.20,000/-. Since the age of the deceased was 52 years at

the time of the accident, the Tribunal has rightly applied the

multiplier '11' and arrived at loss of dependency at

Rs.20,000/- x 12 x 11 = Rs.26,40,000/-. As rightly argued by

the learned standing counsel for insurance company, under

the conventional heads, the claimants are entitled to

Rs.77,000/- only but not Rs.1,25,000/- as was awarded by

the Tribunal. Even the Tribunal has erroneously awarded an

amount of Rs.25,000/- under the head of pain and suffering.

Thus, in all, the claimants are entitled to Rs.27,17,000/-. As

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stated above, as this Court came to the conclusion that there

was no negligence on the part of the rider of the motorcycle,

respondent Nos.3 and 4 are liable to pay the entire

compensation of Rs.27,17,000/- together with interest and

costs. As per the judgment of the Apex Court iIn Laxman @

Laxman Mourya Vs. Divisional Manager, Oriental

Insurance Company Limited and another2, the Court can

grant just compensation even though the claimants claimed

lesser amount towards compensation, subject to the condition

of the payment of deficit court fee on the enhanced amount.

14. Accordingly, M.A.C.M.A. is allowed. The compensation

amount awarded by the Tribunal is hereby enhanced from

Rs.13,99,972/- to Rs.27,17,000/-. The enhanced amount

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

award by the Tribunal till the date of realization. The

enhanced amount shall be apportioned in the manner as

ordered by the Tribunal. Time to deposit the entire

compensation is two months from the date of receipt of a copy

of this judgment. On such deposit, the major claimants are

(2011) 10 SCC 756

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entitled to withdraw their respective share amounts without

furnishing any security. However, the claimants are directed

to pay the deficit Court Fee on the enhanced compensation.

There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_____________________________ SMT. M.G.PRIYADARSINI, J .10.2022 Tsr

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