Telangana High Court

Mohammed Azam And 2 Ors, Died Per ... vs Amrutha Sirgiri And 3 Ors, ... on 15 November, 2023

Bench: K.Lakshman, K. Sujana

              THE HON'BLE SRI JUSTICE K.LAKSHMAN
                                  AND
              THE HON'BLE SMT JUSTICE K. SUJANA


                    M.A.C.M.A.No.1156 OF 2010


JUDGMENT : (per Hon'ble Smt Justice K.Sujana)


      Being    aggrieved   by   the   judgment   dated   19.03.2010   in

O.P.No.632 of 2007 on the file of the XXII Additional Chief

Judge-Cum-Motor Accidents Claims Tribunal, City Civil Court, at

Hyderabad (hereinafter referred as 'the Tribunal') the petitioners

therein filed this appeal stating that the Tribunal wrongly decided

contributory negligence on the part of deceased and prayed to grant

the relief of enhancement of compensation.



2.    The appellants filed this appeal stating that the Tribunal erred

in holding that there was contributory negligence on the part of

deceased Mohtesham Azmi (owner and driver of Maruti Van bearing

No.AP13E9271). It was contended that the Tribunal erred in

deducting 50% of the compensation amount towards contributory

negligence on the part of deceased without any foundation or basis.

Therefore, prayed this Court to set-aside the order of Tribunal

awarding 50% of contributory negligence on part of deceased and

also to enhance the compensation.
                                                                 KL, J & SKS, J

                                                        MACMA.No.1156 of 2010
                                   2



3.    Heard learned counsel appearing for appellants and learned

counsel appearing for respondents, respectively.

4. Vide impugned judgment dated 19.03.2010 in

O.P.No.632 of 2007, the Tribunal awarded a sum of Rs.53,46,000/-

(Rupees Fifty Three Lakhs Forty Six Thousand Only) with an interest

at the rate of 7% per annum from the date of petition till realization.

5. On considering the entire evidence on record, both oral and

documentary, the Tribunal held that the accident occurred due to

contributory negligence on the part of driver of lorry bearing

No.AET6187 and on the part of driver of Maruti Van bearing

No.AP13E9271.

6. The contention of learned counsel for appellants is that,

without there being any testimony of eye witness, the Tribunal

arrived at a conclusion that there was contributory negligence on the

part of deceased Mohtesham Azmi (owner and driver of Maruti Van

bearing No.AP13E9271). He contended that the Tribunal erred in

deducting 50% of the compensation amount towards contributory

negligence on the part of deceased without any foundation or basis.

Therefore, prayed this Court to set-aside the judgment dated

19.03.2010 passed by the Tribunal awarding 50% of contributory KL, J & SKS, J

MACMA.No.1156 of 2010

negligence on part of deceased and also to enhance the

compensation.

7. Now the points that arise for consideration are :

1. Whether the accident occurred due to contributory negligence on the part of the driver of lorry bearing No.AET6187 and on the part of driver of Maruti Van bearing No.AP13E9271

2. Whether the claimants are entitled for enhancement of compensation as prayed for ?

3. To what relief ?

8. For the sake of convenience, the parties are referred to as

arrayed in O.P.No.632 of 2007.

9. The facts of the case as per the averments made in petition are

that petitioner No.1 - Mohamed Azam is the father of deceased, and

petitioner Nos.2 and 3 are minor daughters of the deceased. On the

date of accident, the deceased was proceeding in a Maruti Van

bearing No.AP13E9271 along with his wife from Hyderabad to

Jadcharla after attending a matrimonial function at the house of

their relatives. When they reached near Nandigama Village, a lorry

bearing No.AET6187 came in a rash and negligent manner and

dashed against maruti van from opposite direction. Due to the

impact, the Maruti Van turned towards Hyderabad side and was

dragged to some distance and then the Maruti Van went underneath

the lorry resulting in instantaneous death of both the inmates of KL, J & SKS, J

MACMA.No.1156 of 2010

Maruti Van. Sparks came out of the van and the dead bodies got

burnt. The dead body of the wife was thrown out on the road.

10. Earlier to the accident, the deceased who was aged 32 years

used to do business at Jadcherla, owning rice mill, Azam Food

Products Private Limited, M/s. Deccan Traders, Poultry Firms and

Poultry Industry. He was also managing agriculture and earning

Rs.1,50,000/- per month in all. As per the I.T. Returns for the year

2002-2003, his income was Rs.11,08,391/- and for the year

2001-2002 it was Rs.10,40,942/-. He has been contributing his

entire income to the petitioners. Due to the sudden death of the

deceased, the petitioners who are dependent on his income,

sustained loss of income.

11. The respondent Nos.1 and 4 remained ex parte. Respondent

No.2 - New India Assurance Company Limited, filed counter denying

the averments of the petition in a general manner and contended

that there was no negligence on the part of the driver of lorry. It was

also contended that the driver did not have valid driving license and

that the vehicle did not have insurance coverage and contributory

negligence was attributed to the deceased.

12. Basing on the pleadings, the Tribunal framed three issues. On

behalf of petitioners, PWs.1 to 4 were examined and Exs.A1 to A27 KL, J & SKS, J

MACMA.No.1156 of 2010

were marked. PW.1 is petitioner No.1, father of the deceased and

grandfather of petitioner Nos.2 and 3. PW.2 is the ASI in Kuttur

Police Station. PW.3, Auditor was examined to prove the income of

the deceased. PW.4 is the alleged eye witness to the accident. On

behalf of respondent No.2 - New India Assurance Company Limited,

Ex.B1 was marked.

13. According to the evidence of PW.1 - father of the deceased, his

son was aged about 32 years who used to do business in Jadcherla

by running rice mill, Azam Food Products Private Limited, M/s.

Deccan Traders, Poultry Firms, Poultry Industry and agriculture, as

well. He deposed that initially, the deceased established M/s. Azam

Rice Mill Private Limited in the year 1997 and thereafter, changed

the name of the company as M/s.Azam Food Products Private

Limited and got it registered. He was one of the Directors of the

company and had 49,010 shares in the said company. For the year

2000-2001 the income of the deceased was shown as Rs.1,01,580/-

per annum and for the year 2001-2002 his income was shown as

Rs.48,000/- per annum from Azam Food Products Private Limited,

Rs.2,96,948/- from M/s.Deccan Traders, Rs.6,95,994/- from

M/s.Luckky Poultry Firms, Mehidipatnam and Rs.51,250/- from

agriculture. On 31.12.2002, he paid Rs.3,50,000/- as income tax for

the year 2002-2003.He also got his income assessed for the year

2003-2004 and paid advance tax of Rs.3,25,000/- on 13.12.2002.

KL, J & SKS, J

MACMA.No.1156 of 2010

The balance tax of Rs.5,630/- was paid in the month of October

2003. He was earning more than Rs.1,50,000/- per month.

14. According to the evidence of PW.2, a case was registered based

on the complaint of one Depalli Eswaraiah and the driver of the lorry

surrendered before the Police. In the cross examination, he stated

that he does not have any personal knowledge about the accident

and as per the investigation, there were no eye witnessess to the

accident.

15. PW.3 is the Chartered Accountant who used to file the returns

of the deceased with the Income Tax Department. According to his

evidence, the deceased was running various business concerns and

was regularly paying income tax. As his business developed, he paid

advance tax on 13.12.2002 and 28.03.2003 at the rate of

Rs.30,000/- and Rs.25,000/-, respectively. He stated that the

income derived by the deceased was for the complete year i.e., from

March 2002 to March 2003. He prepared balance sheet, capital

account, profit and loss account of all the firms and declared the

entire income of the deceased to the Income Tax Department and

submitted returns for the business done by the deceased which was

Rs.11,82,090/- including agricultural income.

KL, J & SKS, J

MACMA.No.1156 of 2010

16. In the cross examination, PW.3 stated that he does not have

any record pertaining to the returns. However, he also stated that he

certified the returns on the basis of the records brought to him. He

further stated that the deceased used to supply the ledger

information to him. He admitted that Ex.A16 was filed on 21.01.2004

i.e., after the death of the deceased. According to him, if the turn

over is more than Rs.40,00,000/- it has to be audited by a Chartered

Accountant. He further stated that he could not say the source of

salary income of the deceased and he did not audit or inspect any

books of accounts and has simply filed returns based on the

information given to him by the assessee.

17. The evidence of PW.4 shows that his father owns a hotel at

Nandigama Bus stop and he assists his father in supplying tea and

running hotel. In the cross examination when it was suggested that

he did not witness the accident, he stated that the accident occurred

in front of his hotel. He also stated that he did not give evidence in

the criminal case filed against the lorry driver.

18. Ex.A1 and Ex.A2 are the certified copies of F.I.R., and charge

sheet, respectively. Both the documents show that the accident

occurred in the manner as narrated and Ex.A2 does not show the

name of PW.4 as witness.

KL, J & SKS, J

MACMA.No.1156 of 2010

19. The petitioners also filed a rough sketch of scene of accident

which shows that the accident occurred in the center of the road.

Basing on the above evidence and documents on record, the Tribunal

came to the conclusion that the accident occurred due to the

negligence of both drivers as it was in the middle of the road and

both the vehicles were going from left margin of the road and the

impact which turned the Maruti Van would also imply that it was

also going in high-speed. The finding of the Tribunal is that there

was contributory negligence on part of the deceased, as well as, the

driver of lorry.

20. The contention of the claimants is that there is no negligence

on the part of driver of maruti van. Per contra, learned counsel for

New India Assurance Company Limited submitted that there is no

negligence on the part of lorry driver and the accident occurred due

to the negligence of van driver only.

21. On going through the rival contentions and the material placed

on record, it is seen that F.I.R., under Ex.A1 was lodged with Police

on the basis of written complaint by one Depalli Eswaraiah. The

Investigating Officer, after due investigation, filed charge sheet

stating that the accident occurred due to negligent driving of the

driver of lorry and a criminal case was also filed against him and he

was tried for the said offence.

KL, J & SKS, J

MACMA.No.1156 of 2010

22. At this stage, it is apt to note that according to the evidence of

PW.4, on 31.03.2003 at about 03:00 A.M., he was supplying tea to

the night shift holders. When he was returning after supplying the

tea, he saw one lorry bearing No.AET6187 coming from Jedcherla

side and proceeding towards Hyderabad, in rash and negligent

manner at high speed and dashed to one Maruti Van beaing

No.AP13E9271 which was coming from Hyderabad side and

proceeding towards Jedcherla. Due to the impact, the Maruti Van

turned back and the left side of its door got opened and a lady who

was sitting inside fell down on the road and she became

unconscious. The driver of the Maruti Van also became unconscious.

He saw flames coming out near the diesel tank of lorry. He could not

be of any help as he was alone and on the opposite side of the

accident spot. He alerted his family members and neighbours and by

the time they came to the accident spot, the flames became more and

the Maruti Van which was very close to the lorry caught fire. Due to

the said flames, the driver of the Maruti Van got totally burnt and

the lady also received burnt injuries and died. He further deposed

that the lorry was loaded with beer bottles and due to the heat, the

beer bottles started busting. After one hour, the Police came to the

spot and recorded his statement about the incident.

KL, J & SKS, J

MACMA.No.1156 of 2010

23. With regard to contributory negligence, the learned counsel

appearing for appellants relied on the judgment of the Hon'ble

Supreme Court in Sucheta Mishra and Others Vs. Divisional

Manager National Insurance Company Limited 1. The relevant

paragraph No.5 reads as under:

"5. In a matter of the present nature where we

note that PW-3 is stated to be the eye witness to the

accident and other witnesses were only the

claimants who were not at the spot of the accident,

the version of PW-3 ought to have been accepted. Be

that as it may, it is not in dispute that on

investigation the charge sheet has been filed against

the rider of the offending vehicle. Therefore, the

conclusion reached by the MACT only on the ground

that it is an head on collision and therefore 50% of

negligence is to be attributed to the deceased is not

justified. To that extent, we set aside the finding

rendered by the MACT and hold that the rider of the

offending vehicle was alone negligent in causing the

accident. Hence, the appellants would be entitled to

the entire compensation to be determined."

24. From the above extracted portion it is noted that merely on the

ground of head on collision, it cannot be held that there is

contributory negligence on the part of the deceased.

25. Learned counsel for appellants also relied on the decision of

the Hon'ble Supreme Court in K.Anusha and Others Vs. Regional

2023 (2) TAC 355 KL, J & SKS, J

MACMA.No.1156 of 2010

Manager, Shriram General Insurance Company Limited 2. The

relevant paragraph No.13 reads as under:

"13. Therefore, the entire reasoning of the High Court

on Issue No. 1 is riddled with inherent contradictions.

To establish contributory negligence, some act or

omission, which materially contributed to the

accident or the damage, should be attributed to the

person against whom it is alleged. In Pramodkumar

Rasikbhai Jhaveri v. Karmasey Kunvargi Tak2 this

Court quoted a decision of the High Court of Australia

in Astley v. Austrust Ltd.3, to hold that "...where, by

his negligence, one party places another in a situation

of danger, which compels that other to act quickly in

order to extricate himself, it does not amount to

contributory negligence, if that other acts in a way

which, with the benefit of hindsight is shown not to

have been the best way out of the difficulty". In fact,

the statement of law in Swadling v. Cooper4, that

"...the mere failure to avoid the collision by taking

some extraordinary precaution, does not in itself

constitute negligence...", was also quoted with

approval by this Court. Therefore, we are compelled to

reverse the finding of the Tribunal and the High Court

on the question of contributory negligence."

26. In the above extracted portion it was observed that mere

failure to avoid collision by taking some extraordinary precaution

does not amount to negligence.

2022 (2) Civil LJ 88 KL, J & SKS, J

MACMA.No.1156 of 2010

27. It is noticed that the evidence of PW.4 was simply discarded

by the Tribunal stating that he was not cited as witness in the charge

sheet and the same is not tenable. In this regard, keeping in view the

decision of the Hon'ble Supreme Court in Janabai WD/o Dinkarrao

Ghorpade Vs. ICICI Lambord Insurance Company Limited 3 we are

of the opinion that the Tribunal has decided the issue as if it was

dealing with criminal trial and ignoring that the petition filed before

it was a claim petition filed under Section 166 of the Motor Vehicles

Act, 1988, for grant of compensation to the victims and their legal

representatives which is a piece of welfare legislation deals with

providing relief to the persons who suffered injuries in the motor

vehicle accidents. The relevant paragraph No.11 of the judgment

reads as under:

"11. We find that the rule of evidence to prove charges

in a criminal trial cannot be used while deciding an

application under Section 166 of the Motor Vehicles

Act, 1988 which is summary in nature. There is no

reason to doubt the veracity of the statement of

Appellant 1 who suffered injuries in the accident. The

application under the Act has to be decided on the

basis of evidence led before it and not on the basis of

evidence which should have been or could have been

led in a criminal trial. We find that the entire approach

of the High Court is clearly not sustainable."

(2022) 10 SCC 512 KL, J & SKS, J

MACMA.No.1156 of 2010

28. In view of the above extracted portion, it is clear that strict

Rules and Procedures are not applicable to the claim petitions.

29. In view thereof, in the present case, the Tribunal erred in

concluding that there is contributory negligence on the part of the

deceased also without there being any evidence on record and

without considering the documents marked under Exs.A1 and A2.

The Tribunal also erred in discarding the evidence of PW.4, an eye

witness. Therefore, the finding of the Tribunal that there is

contributory negligence on the part of deceased is erroneous and the

same is hereby set aside. Therefore, it can be concluded that the

accident occurred due to negligence of driver of the lorry bearing

No.AET6187. Accordingly, point Nos.1 to 3 are answered.

30. Basing on Ex.A17 - bunch of share certificates in the name of

the deceased in Azam Food Products Private Limited,

Exs.A18 to A20 - electricity bills of Azam Food Products Private

Limited, memorandum of articles of the said firm showing the

deceased as a subscriber, certificate of incorporation for the changed

name of Azam Food Products to Azam Rice Mill, pattedar passbook

showing agricultural land in the name of the deceased, and Ex.A21

- the license for purchase and sale of M/s.Deccan Traders, the

Tribunal came to the conclusion that the taxable income of the

deceased was not uniform. Therefore, it has taken the income of the KL, J & SKS, J

MACMA.No.1156 of 2010

deceased as more than Rs.10,00,000/- which is not disputed by the

insurance company as well.

31. Further, as per Ex.A24, the date of birth of the deceased is

31.12.1970. Therefore, on the date of the accident, he was aged

around 33 years old. As such, as per the principle laid by the Apex

Court in National Insurance Company Limited Vs Pranay Sethi 4,

40% future prospects need to be added, which comes to

(10,00,000 x 40% = 4,00,000 [10,00,000 + 4,00,000 = 14,00,000])

Rs.14,00,000/- . Out of which, 1/3rd amount has to be deducted as

there are two dependants i.e.,

Rs.14,00,000 x 1/3rd = Rs.4,66,666/-. As such,

Rs.14,00,000 - 4,66,666 = Rs.9,33,334/- was the actual loss of

income. As per the Judgment of the Hon'ble Supreme Court in Sarla

Verma and Others Vs Delhi Transport Corporation and another 5,

the appropriate multiplier applicable in the instant case is 16. That

being so, the loss of dependency comes to

Rs.9,33,334 x 16 = Rs.1,49,33,344/-.

32. Further, the Tribunal has not awarded any amount under the

heads of 'Loss of Estate' and 'Funeral Expenses' as per the judgment

of Pranay Sethi (supra). In addition to that, as per the judgment

(2017) 16 SCC 680

(2009) 6 SCC 121 KL, J & SKS, J

MACMA.No.1156 of 2010

rendered in Smt Anjali and Others Vs. Lokendra Rathod and

Others 6, the appellants are also entitled to Rs.44,000/- each, under

the head of 'Parental Consortium' as appellant Nos.2 and 3, namely,

Ms.Tameenma Azmi and Ms.Sameena Azmi are daughters of the

deceased. Accordingly, point Nos.1 to 3 are answered.

33. Thus, in view of the above discussion, the compensation

awarded to the appellants under various heads are as follows:

Loss of dependency/contribution to family Rs.1,49,33,344/-

Parental Consortium to appellant No.1 Rs.44,000/-

Parental Consortium to appellant No.2 Rs.44,000/-

     Loss of Estate                                      Rs.15,000/-

     Funeral expenses                                    Rs.15,000/-

     Total Compensation                                  Rs.1,50,51,344/-

34. IN THE RESULT, the appeal is allowed. The Order And Decree

dated 19.03.2010 in O.P.No.632 of 2007 passed by the XXII

Additional Chief Judge-Cum- Motor Accidents Claims Tribunal, City

Criminal Court, at Hyderabad, is modified, enhancing the

compensation from Rs.53,46,000 (Rupees Fifty Three Lakhs and

Forty Six Thousand only) to Rs.1,50,51,344/- (Rupees One Crore

2023 SCR 439 KL, J & SKS, J

MACMA.No.1156 of 2010

Fifty Lakhs Fifty One Thousand Three Hundred and Forty Four only)

with interest @ 7% per annum thereon from the date of petition till

realization. The owner and Insurance Company of lorry bearing

No.AET6187 are jointly and severally liable to pay the said

compensation. As such, the compensation amount shall be

apportioned to the claimants in equal shares. As far as the loss of

parental consortium amounts are concerned, the respective

appellants alone are entitled to receive from out of the above said

total compensation. The owner and insurer of lorry bearing

No.AET6187 are directed to deposit the above said amount with

interest and costs, after deducting the amount which was already

deposited, within one month from the date of receipt of certified copy

of this judgment. No order as to costs.