MACMA/1816/2007 of Sri B.Bonddaiah Vs Sri G.Nageswara Rao on 30 December 2010

J U D G M E N T:

This is an appeal, under Section 173 of the Motor Vehicles Act,1988 (for short, ‘the Act’) by the claimants, who are the parents of Kum.B. Haritha (herein-after be referred to as ‘the deceased’) seekingenhancement of the compensation awarded by the VII AdditionalMetropolitan Sessions Judge-cum-XXI Additional Chief Judge,Hyderabad in O.P.No. 1245 of 2006, on 17.05.2007.

The facts, in brief, are as follows.

The claimants filed the above said O.P. under Section 166 ofthe Act, claiming compensation of Rs.3,00,000/- for the death of thedeceased, who was aged about 5 years at that time. According tothem, on 10.12.2005, at about 07.30 a.m., the deceased girl wastravelling in jeep bearing No. AP 7T 7713 from Rachapalli Village toJadcherla to attend a marriage, when it reached the outskirts ofRanipet Village, suddenly one lorry bearing No. AP 16TV 2488 camefrom the opposite direction and hit the jeep, due to which, thedeceased sustained injuries and died on the spot.

Before the Tribunal, Respondent No. 1 remained ex parte.

In the counter-affidavit filed by the 2[nd] respondent insurer ofthe lorry, it has been averred that the accident was all because of thenegligence of the jeep driver.

Based on the pleadings of the parties, the Tribunal framed thefollowing issues for trial.

(1) Whether the accident occurred due to rash and negligentdriving of the lorry bearing No. AP 16 TV 2488 by its driver?driving of the lorry bearing No. AP 16 TV 2488 by its driver?

(2) Whether the petitioners are entitled for compensation? If so to what amount and from whom?

(3) To what relief?

During trial, the 1[st] claimant was examined as P.W.1 and theeye witness to the accident was examined as P.W.2 and on theirbehalf, Exs.A1 to A6 were marked. On behalf of the Insurancecompany, Ex.B1, copy of the policy was marked during the cross-examination of P.W.1.

From the evidence of P.Ws.1 and 2, it is manifest that the jeepwas overloaded at the time of accident and there was head oncollision between the jeep and the lorry. Therefore, the Tribunal, onissue No.1, relying upon the decisions reported in Bijay Kumar Dugarv. Bidya Dhar Dutta (2006(3) Supreme Court Cases 242) andTatinenti Meena v. Shaik Mansoor Ali (2006(6) ALT 34), held thatthe accident occurred on account of the contributory negligence on thepart of the drivers of lorry and jeep.

Admittedly, the age of the deceased at the time of accident was5 years and though the deceased was a non-earning member, as perSchedule-II of Section 163 of the Act, the Tribunal took the notionalincome of the deceased as Rs.15,000/- and applied the multiplier forthe age of 5 years as ‘15’. Therefore, the loss of dependency wasassessed as Rs.2,25,000/- (Rs. 15,000/- x 15). In addition thereto,Rs.10,000/- towards loss of love and affection, Rs.10,000/- towardsloss of estate and another sum of Rs.5,000/- towards funeral expenseswas awarded. In total, Rs. 2,50,000/- was assessed as the totalcompensation. But however, since the claimants have not made thedriver and owner of the jeep as parties and as the finding on IssueNo.1 is to the effect that the drivers of both the vehicles areresponsible for the accident, they are entitled to Rs.1,25,000/- only withinterest at 7.5% per annum.

Aggrieved by the said amount of compensation, the appellants- claimants preferred this appeal, contending that the Tribunal erred inholding that there was head on collision between the lorry and thejeep, as the accident occurred due to the rash and negligent driving ofthe lorry driver only.

Heard Sri V. Ajay Kumar, learned Standing Counsel forRespondent No.2 Insurance company.

The evidence of P.W.2, who is an eye witness, is very clear tothe effect that there was a head on collision between the jeep in whichthe deceased girl was travelling and the lorry. Therefore, the Tribunal,based on the said evidence, rightly decided that both the vehicleswere responsible for the accident, and therefore, made the InsuranceCompany, the 2[nd] respondent liable to pay the compensation, as thedriver and owner of the jeep were not made as parties. Therefore, I donot find any infirmity in the order passed by the Tribunal.

But however, keeping in view the fact that the deceased wasthe only daughter of the claimants, I feel that the ends of justice wouldbe met, if Rs.38,000/- is granted towards loss of love and affection. Therefore, if Rs. 1,25,500/- towards loss of dependency, Rs.38,000/-towards loss of love and affection, Rs.10,000/- towards loss of estateis awarded, all put together, it comes to Rs.1,60,500/-, rounded of toRs.1,60,000/-, to which amount, the claimants are entitled to as thecompensation. The enhanced amount of compensation shall carryinterest at 7% per annum from the date of petition till the date ofrealization.

With the above modification, the Appeal is allowed in part. Noorder as to costs.

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GHULAM MOHAMMED, J.

30[th] December 2010

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