United India Insurance Company ... vs Chimmula Srinivas Reddy And 5 ...
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       HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO


                    M.A.C.M.A. No.3121 OF 2011

JUDGMENT:

The appeal is filed by the 5th respondent, which is the Insurance Company, against the award in O.P.No.1267 of 2001 on the

file of the III Motor Accidents Claims Tribunal, Warangal, questioning the compensation and also its liability. Parties are referred as in the lower Tribunal.

2. A claim for compensation of Rs.3,48,000/- was made by the petitioners contending that on 27.08.2001 when the deceased Bal

Reddy was going in a Maruthi Zen Car bearing No.AP 36 G 5, which was insured with the appellant herein, RTC bus bearing No.AP 10 Z

1404 driven by its driver came in a rash and negligent manner, dashed against the car, as a result of which, the said Bal Reddy received injuries and died. He was said to be aged about 68 years and earning

Rs.6,000/- per month. The 1st petitioner is employed son and the 2nd

petitioner is wife of the deceased. The 1st respondent, who is owner of

the bus, denied the rashness and negligence attributed to the driver of

the bus and further contended that the case was registered against the driver of the car only and there is no rashness or negligence on the

part of the driver of the bus. The 5th respondent, who is the appellant herein, denied the rashness and negligence attributed to the driver of

the car and further contended that the incident was due to the fault of

the driver of the bus only. After considering the evidence on record, the lower Tribunal has come to the conclusion that there is contributory

negligence of 75% on the part of the driver of the bus and 25% on the

part of the driver of the car and accordingly granted a compensation of

Rs.3,24,000/- apportioning the same to the respondents Nos.1 and 5. Aggrieved by the said award the present appeal is filed.

3. The point for consideration is whether the contributory

negligence attributed to the driver of the car is tenable?

4. POINT:

In order to prove the incident, no eye witness to the incident was

examined on behalf of the petitioners. The driver of the bus was examined as RW.1 and the driver of the car was examined as RW.2.

The important aspect to be considered is the reasoning given by the

learned Judge in para No.16 of the award. It clearly goes to show that

the driver of the bus did not take the vehicle to the extreme left side in

order to slow down in spite of the fact that there was a culvert and he

being the driver of the heavy vehicle should have been more careful. It was also found that the bus collided with the car. So far as the

negligence of the driver of the car is concerned, in para No.15 it was

found that even if the driver of the car has over taken a bullock cart, still

there is sufficient length of the road where he can go to the left side.

Therefore, from the reasoning given by the lower Tribunal the bus was

taken to the right side in stead of to the left side. That being so, the

Court should have fixed the responsibility on the driver of the bus alone. Even if there may be a lack of care on the part of the driver of

the car, it cannot be accepted that he has contributed for the accident.

5. So far as the quantum of compensation is concerned, it is

contended by the learned counsel for the appellant that the amount

granted by the lower Tribunal is not proper. Evidently, there is no

scrap of paper to show that the deceased was getting a pension of

Rs.6,000/- per month, which was taken into consideration by the lower

Tribunal. Assuming to be that the deceased was drawing a pension of

Rs.6,000/- per month the deduction should be 1/3rd. But, strangely the

Tribunal has deducted only Rs.1,000/- and fixed the contribution at Rs.5,000/- to the family ignoring the fact that the 1st petitioner is

employee and major member of the family. Evidently, at the advanced age the personal expenditure of the deceased would have been more.

Therefore, if a correct contribution is to be taken into account, it comes

to only Rs.4,000/- per month admitting the pension of the deceased as

Rs.6,000/- per month. Further-more, there is no multiplier fixed for the

age of the individual at 70 years. But, however, the Tribunal has

applied '5' multiplier taking the aid of 163 of the Motor Vehicles Act.

Therefore, taking into consideration the above fact, I feel the multiplier '4' can be applied. Then, the loss of contribution comes to

Rs.1,92,000/-. Added to that, the lower Tribunal has granted

Rs.20,000/- towards loss of consortium, which is not proper.

Therefore, a sum of Rs.10,000/- is granted towards loss of consortium,

Rs.5,000/- towards loss of estate and a sum of Rs.2,000/- is granted

towards funeral expenses. The total compensation to which the

petitioners are entitled to is Rs.2,09,000/- and it is rounded up to

Rs.2,10,000/-. The said amount shall be paid by the 3rd respondent

herein i.e., respondent No.1 in the original petition, whose negligence

has been fixed by this Court. If the 1st respondent herein has

deposited any amount and has withdrawn by the claimants, since no appeal is filed, the excess amount withdrawn by the claimants can be

recovered by the 1st respondent without filing any suit.

Accordingly, the award is modified and the appeal is allowed. No costs.

_______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:15.12.2011 INL