MACMA/1181/2012 of United India Insurance Company Limited, Vs Smt. Hameeda Bee on 30 December 2014

COMMON JUDGMENT:

Out of these two appeals, one filed by the claimants and theother by the Insurer against the order/award dated 09.12.2010 passedin O.P.No.1822 of 2008 on the file of XXII Additional Chief Judge-cum-Motor Accidents Claims Tribunal, City Criminal Court, Hyderabad (forshort, ’Tribunal’). The parents of thedeceased Mohd. Jaffer, who wasaged about 22 years and unmarried, filed O.P No.1822 of 2008 for theaccident occurred on 08.09.2006 made a claim of Rs.8 lakhs underSection 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’) againstowner and insurer of the lorry bearing No.TN 28V 4579, sinceawarded Rs.3,14,000/- with interest at 7% per annum by the Tribunal.

2(i). Aggrieved by the quantum of earnings of deceased takenand the quantum of compensation arrived with rate of interest as low,they preferred an appeal M.A.C.M.A No.189 of 2012.

2(ii). The Insurance Company preferred M.A.C.M.A No.1181 of2012, mainly on two grounds that the Tribunal gravely erred indeducting 1/3[rd] towards personal expenses instead of half of themonthly income of the deceased and also erred in not taking intoconsideration of the fact that the accident was the outcome ofnegligence of the deceased rider of bike, which is establishing fromEx.B2 sketch plan of the scene of offence with observation and therebysought to fix the contributory negligence on the part of the deceasedand if not to exonerate the insurer, reduce the quantum ofcompensation.

3. Heard Sri C.Mohan Prakash, learned counsel for the claimantsand Sri A.V.K.S Prasad, learned standing counsel for InsuranceCompany. Though notice served to the owner of the vehicle, did notchoose to appear hence taken as heard. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of conveniencein the appeal.

4. Now the common points that arise for consideration in theappeal are:

1. Whether there is any contributory negligence on the part ofthe lorry driver or deceased and the quantum ofcompensation and rate of interest is either excessive orutterly low, if so, what is the just compensation, with whatrateof interest and with what observations?the lorry driver or deceased and the quantum ofcompensation and rate of interest is either excessive orutterly low, if so, what is the just compensation, with whatrateof interest and with what observations?

2. To what result?

Point No.1:

5. No doubt, Ex.A-1 is the FIR and Ex.A2 is the charge sheetthat are maintained against the driver of the crime lorry of the 1[st] respondent insured with 2[nd] respondent of the claim petition. Fromthe Ex.A4—post mortem report there are no crush injuries sustained bythe deceased. Admittedly, while the bike rider of the accident wasproceeding on his motor cycle to Siddipet, when he reached theoutskirts of Ganeshpally Village, the lorry bearing No.TN 28 V 4579was coming in opposite direction and dashed the motor cycle of thedeceased.

Ex.A5—Motor Vehicle Inspector report speaks that RHS, rear mudguard of the lorry was damaged when exhibited and there are nomechanical defects. The MVI report that is placed reliance by theclaimants from the above, when clearly speaks that the right side rearportion (backside) was damaged and also mud guard was damaged. Ex.A1—FIR speaks the lorry all of a sudden dashed the motor bikeand turned turtle. However Ex.A4—PME report if true with referenceto Ex.A5—MVI report; what the charge sheet speaks as if the lorrydashed the bike not at all fully correct for no damage to the lorry at itsfront portion and it is not even the case of the claimants that portion ofthe lorry dashed the opposite coming bike. It is with reference to the

same, coming to Ex.B2—rough skecth of the scene of offence, itclearly speaks that the accident took place on the middle of the road. Had the deceased on his bike proceeding on the left side of the roadeven taken for arguments sake, due to the lorry coming in oppositedirection on its left side, the accident could not have been occurred.

6. A perusal of Ex.B2-rough sketch also clearly speaks thatthe lorry backside mud guard was damaged, uprooted anddismantled. Further, the bike is shown at the extreme right side of theroad in cross direction from the place of accident (northwest) i.e., rightside. It is indicating that the bike was proceeding by crossing the roadto the rightwards. This fact is co-relating and substantiating the factumof backside rear portion and mud guard of the lorry damaged and mud-guard was dismantled. There is, thus, a clear contribution by the bikerider for the accident.

7. The Tribunal thus went wrong, despite the abovedocumentary evidence, in its finding as if there is a total negligence onthe part of the lorry driver with no negligence on the part of thedeceased bike rider.

8. No doubt as contended by the learned counsel for theclaimants in the appeal maintained as well as in the appeal of theinsurer in opposing merely because both vehicles proceeding inopposite direction per say negligence of both vehicles cannot bepresumed. The law is well settled on this aspect that each case varieson the material available on record to appreciate on own facts todecide contributory or composite negligence if any and if so to whatextent.

9. Now coming to the case on hand, here as the facts supraindicating contribution of deceased, for contributory negligencedepends upon several factors including size of the vehicle, size of theroad, manner of accident, place of accident on the road, manner ofdamage to each vehicle and at which portion etc., in the factual matrix it is just to fix 20% contribution on the part of the deceased bike riderand 80% on the part of the lorry driver of 1[st] respondent insured with2[nd] respondent.

10. From this now coming to the quantum of compensationexcessive or utterly low is concerned, the charge sheet speaks thedeceased was a motor mechanic. PW.3 deposed that the deceasedwas earlier working under him and now as if established a own shopand there is no evidence equally from PWs.1 to 4 as to the deceasedwas having either own shop or getting any income much less alsodoing sale and purchase of second hand motor cycles. The Tribunalin para No.9 of the award on issue No.2 disbelieved the said versionthat the deceased was a motor mechanic or having own shop or doingany sale or purchase of second hand motor vehicles or earningRs.6,000/- per month for not even any corroborate evidence much lessworth oral evidence despite the insurer right from the counter contestas well as cross examination of PWs.1 to 4 disputed all these facts.

11. When the charge sheet coupled with evidence on recordincluding that of PWs.1 to 3 established that the deceased was trainedin the shop of PW.3 as a mechanic, either working under PW3 orhaving elsewhere even though not having any shop for no proof, soalso regarding sale and purchase of second hand motor vehicles; he isa skilled worker can be taken into consideration. There from, thoughthere is no proof regarding earnings and as Latha Wadhwa vs State of Bihar[[1]], the minimum earnings Rs.3,000/- per month to be takeninto consideration and the accident was occurred on 08.09.2006 andthe deceased was a skilled worker as a motor mechanic trained underPW.3; it is just including the prospective earnings by proportionateincrease for taking his monthly income at Rs.3,800/-. If that is taken, asthe claimants are parents of the deceased half of the income deductedtowards personal expenses, it comes to Rs.1,900/-, the multiplier applicable from the age of the mother is ‘13’, as per the settled law thatwhether the dependents age is more age to the deceased, the age ofthe dependants and if less age to the deceased, the age of thedeceased is criteria to ascertain the dependency in awardingcompensation, thus it comes to Rs.2,96,400/-. Apart from it,Rs.35,000/- towards funeral expenses and loss of estate can also beawarded. Since it is proved from the evidence on record that thedeceased was the only son of the claimants, an amount of Rs.25,000/-awarded towards love and affection can also be awarded. In all itcomes to Rs.3,56,400/-. 80% contributory negligence of the lorrydriver—1[st] respondent therein comes to Rs.2,85,120/- rounded toRs.2,85,000/- is the just compensation. The claimants are entitled withinterest at 7.5% per annum. Accordingly, point No.1 is answered.

Point No.2:

12. In the result, both the appeals are partly allowed byreducing the quantum of compensation from Rs.3,14,000/- (Rupeesthree lakhs fourteen thousand only) to Rs.2,85,000/- (Rupees twolakhs eighty five thousand only) and enhancing the rate of interest from7% per annum to 7.5% per annum, vide Apex Court’s expression in Rajesh vs Rajbir Singh[[2]]and TN Transport vs. Raja Priya[[3]], fromthe date of petition till the date of realisation and by fixing contributorynegligence on the part of the deceased at 20% and of driver of thecrime lorry of 1[st] respondent insured with 2[nd] respondent is 80%. Restof the terms of the award holds good. No costs.

13. Miscellaneous petitions, if any pending in this appealshall stand closed.

30.12.2014Knl

_____________________

Dr. B. SIVA SANKARA RAO, J

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO

M.A.C.M.A. Nos.189 OF 2012 and 1181 OF 2012

knl

Date:

[1]AIR 2001 SC 3218AIR 2001 SC 3218

[2]2013 (9) SCC 542013 (9) SCC 54

[3]2005 (6) SCC 2362005 (6) SCC 236

Date:30.12.2014