Telangana High Court
Cholamandalam M.S. General Insurance ... vs Vaddepally Laxmi on 16 April, 2024
Author: N. Tukaramji
Bench: N.Tukaramji
HONOURABLE SRI JUSTICE SUJOY PAUL
AND
HONOURABLE SRI JUSTICE N. TUKARAMJI
M.A.C.M.A. No.335 OF 2020
JUDGMENT:
(per Hon'ble Sri Justice N. Tukaramji)
We have heard Mr. A. Ramakrishna Reddy, learned
counsel for the appellant/respondent No.3 and Mr. Chalakani
Venkat Yadav, learned counsel for the respondents/claim
petitioners.
2. Aggrieved by the fastened liability and the compensation
amount awarded, the respondent No.3/insuer preferred this
appeal against the decree and order dated 04.12.2019 in
M.V.O.P.No.302 of 2017 on the file of the Chairman, Motor
Accidents Claims Tribunal-cum-Principal District Judge,
Nalgonda.
3. For convenience, the appellant and respondents are
hereinafter referred to as per their array before the tribunal.
4. The claim petitioners/respondents 1 to 5 (hereinafter, ('the
petitioners') filed petition seeking compensation of Rs.25 lakhs for
the death of Mr.Vaddepally Bixam/deceased in a motor accident
on 12.01.2017. In the claim petition it has been averred that,
SP,J&NTR,J
2 Macma_335_2020
while the deceased, as driver of the lorry along with cleane/PW-2
was proceeding to Hyderabad with a load of poultry feed, in the
outskirts of Gattugudem village at about 4 a.m. rammed his
vehicle into a lorry bearing registration No.AP-05-TA-8539 (for
short, 'the stationed lorry') which was stationed in the middle of
the road without any precautionary indications. In the accident
the deceased suffered fatal injuries and succumbed. Thereupon
the claim petition has been filed against the parked lorry
contending its negligent parking. The tribunal after perusing the
materials awarded compensation of Rs.30,94,000/- with interest
at 9% per annum from the date of the petition till realization
against the owner and insurer of the stationed lorry.
5. In appeal, the learned counsel for the insurer contended
that, on scrutiny of record, by applying the principle of res ipsa
loquitor the tribunal had rightly concluded the contributory
negligence of the deceased in the accident. Having recorded the
contributory negligence, the tribunal ought to have apportioned
the liability on both the vehicles. Consequently the insurer should
have been made liable to pay compensation only to the extent of
the liability fastened. Further pleaded that, the tribunal without
any material erroneously believed the monthly income of the
SP,J&NTR,J
3 Macma_335_2020
deceased at Rs.15,000/-, on higher side. Thus the assessment
requires interference.
6. Per contra, the learned counsel for the petitioners would
submit that the tribunal without any basis and substantive
evidence made an observation against the deceased on
contributory negligence. Therefore, the tribunal was proper in
fixing the liability on the owner and insurer of the crime lorry.
Furthermore, though the petitioners claimed monthly income at
Rs.20,000/- as driver of a heavy goods vehicle, beyond any
rationale monthly income has been restricted to Rs.15,000/-.
Hence prayed for granting just compensation.
7. The submissions of learned counsel are duly considered
and we have perused the material on record.
8. It is evident that the accident occurred as the deceased
rammed his vehicle into the parked lorry. The tribunal
considering the record observed that (a) PW-1 i.e. the wife of the
deceased though not an eyewitness admitted that the lorry driven
by her husband collided with another lorry, which was parked on
the road side; (b) PW-2 also admitted the deceased's lorry hitting
the rear portion of the other lorry; (c) the deceased could not have
SP,J&NTR,J
4 Macma_335_2020
controlled the vehicle as he was driving the lorry at high speed
and (d) there is no evidence showing whether the stationed lorry
was properly parked with precautions and safety measures.
Nonetheless, concluded that, it is a fit case to apply the doctrine
of contributory negligence.
9. In the light of the indisputable facts of accident the pertinent
question for inquiry should be, whether there was any rash or
negligence in parking the lorry and whether there is any rash and
negligence of the deceased in driving the lorry in the accident?
10. The tribunal having observed that there is no evidence
available on record as to whether the lorry was parked with
precautionary indicators and safety measures taken in parking the
lorry, drawing assumption that the lorry was plying at a speed and
recording conclusion that the deceased as driver could not control
the vehicle thereby contributed for the accident, is found beyond
comprehension.
11. Admittedly, at relevant time, the vehicle was plying on the
road between Visakhapatnam to Hyderabad which is a National
Highway. The Highways are constructed for transportation and
the vehicles are permitted to run at certain speed. Thus merely
SP,J&NTR,J
5 Macma_335_2020
on the ground of speed of the vehicle contributory negligence
cannot be determined unless clear factor or circumstance is
discernable from the materials on record. In the present case the
tribunal neither read any document, at least the police record
such as scene of observation report or charge sheet to
comprehend the facts and circumstances in drawing inference.
This being the factual position, we are unable to accept the
interference set down by the tribunal as to the contributory
negligence of the deceased in the accident.
12. Admittedly, the accident occurred in the early hours of
January which is time before dawn of a winter day. When a
vehicle is negligently parked on the road without indicators, in all
contingencies, on coming vehicles may not appreciate from a
reasonable range that it is a stationed vehicle even to take some
precautionary move to avert the accident. In such position,
recording contributory negligence against the deceased/driver of
lorry would be incongruous. Consequently, the observation of the
tribunal in this regard deserves to be and is accordingly
expunged.
SP,J&NTR,J
6 Macma_335_2020
13. In regard to income the petitioners pleaded that as driver of
the lorry the deceased used to earn Rs.20,000/- per month, but
no specific proof has been placed. Howsoever by the fact that
the deceased was steering the vehicle at relevant time, his
avocation as driver can safely be deduced. Therefore considering
the potentials including the occupational emoluments and the
earnings of a driver of heavy vehicle would certainly be more than
a manual labour, accepting daily wage of Rs.500/- is found
reasonable. Thus, no impropriety is found in the tribunal's view in
determining the notional income of the deceased. Further in
assessment of compensation the tribunal had considered the
future prospects at 40% and deducted the personal living
expenses considering the number of dependents and the
conventional heads were also granted as per the directions of the
Hon'ble Supreme Court in National Insurance Company v. Pranay
Sethi 1. In this position we find no error of jurisdiction in
assessment of compensation amount.
14. For the aforesaid, the insurer has failed to make out any
merit in the contentions raised. In effect, the appeal is liable to be
dismissed.
(2017) 16 SCC 860
SP,J&NTR,J
7 Macma_335_2020
15. In the result, the appeal is dismissed.
As a sequel, pending miscellaneous petitions if any, stands
closed.
_______________
SUJOY PAUL, J
________________
N.TUKARAMJI, J
Date:16.04.2024
ccm
