MACMA/259/2007 of Smt. Kethavath Jamini Bai Vs Bhaduguna Ramachander Rao on 31 December 2014

JUDGMENT :

The claimants four in number, no other than wife, minor sonand parents of the deceased Prakash, aged 26 years as per Ex.A-3post mortem report, who maintained the claim under Section 166 ofthe Motor Vehicle Act, 1988 (for short, ‘the Act’) for Rs.7,00,000/- forthe road accident dated 30.10.2002 at Mudelli cross-road, while thedeceased was proceeding on his Hero Honda Motor Cycle bearingNo.AP 25 F 5204, in claiming that the crime motor bike of the 1[st]respondent bearing No.AP 25 C 3916 dashed the bike of thedeceased, as a result of which he fell down on the edge of the roadand struck on the edge of the road, sustained head injury andsuccumbed there from within no time after first aid at Banswada andtaking to Nizamabad hospital for better treatment by the informant ofF.I.R, Ex.A-1 and the police after filing charge sheet against thedriver of the rider of the bike of the 1[st] respondent, from the evidenceon record before the trial Court of P.W-1 1[st] claimant and P.W-2 socalled eye witness with reference to Exs.A-1 to A-12, the tribunalfixed compensation of Rs.2,19,000/- with interest at 7.5% p.a. bytaken the earnings of the deceased at Rs.60/- per day with thecontention in the grounds of appeal impugning the said quantum ofcompensation as utterly low and unjust, hence to allow the appeal asprayed for before the Tribunal. Learned counsel for the appellants-claimants reiterated the same.

2) Whereas, it is the contention of the learned counsel for the2[nd] respondent-insurer, for the 1[st] respondent remained exparte, thatthe quantum of compensation arrived by the Tribunal no way requiresinterference as from the very facts of the case disclose from the delayed F.I.R, the vehicle is implicated after consultations for nomeaning in the informant immediately not reporting to the police ifwitnessed the occurrence and waiting till next day and otherwiseeven there is equal contributory negligence from the very facts andthe charge sheet is not criterion to fix the liability and the so calledeye witness, P.W-2, is a planted witness for the case purpose andhence to dismiss the appeal.

3) Heard Sri Ch.Janardhan Reddy the learned counsel for theappellants and Sri G.S.Prakash Rao learned standing counsel for theinsurer. Perused the material on record. The parties hereinafter arereferred to as arrayed before the Tribunal for the sake ofconvenience in the appeal.

4) Now the points that arise for consideration in the appealare:

1. Whether the quantum of compensation arrived by theTribunal is utterly low to enhance and there is anycontributory negligence on the part of the deceased alsoand if so to what amount, the claimants are entitled?Tribunal is utterly low to enhance and there is anycontributory negligence on the part of the deceased alsoand if so to what amount, the claimants are entitled?

2. To what result?

POINT No.1:

5) From the very F.I.R given by the so called eye witness whodid not come to the witness box to support the claim in the claimpetition, the alleged accident took place at 3.00 P.M on 30.10.2002and he shifted the injured to Banswada hospital for first aid and whiletaking to Nizamabad for better treatment, within no time, after theoccurrence the deceased was succumbed to the head injury and theF.I.R given only on the next day at 8.00 A.M without any reasonassigned for the delay, further saying from the crime bike of the 1[st]respondent rider dashed the bike of the deceased, he fell down onthe road edge and the edge of the road struck to his head and headinjury there from he died. Even from the very case, there a collision

between both vehicles. No scene observation report even filed inthis case, even the vehicle of the deceased not subjected to M.V.Iexamination but for the so called crime vehicle of the 1[st] respondentand the M.V.I. report column No.8 speaks that there is no damage tothe vehicle of the 1[st] respondent. Had the two vehicles colluded asstated in the F.I.R, there must be some damage to the vehicle of the1[st] respondent, thereby the accident cannot be believed is theversion of the learned counsel for the insurer-2[nd] respondent. However, undisputedly the insurance company did not maintain anycross-objections or any independent appeal, thereby though thefinding regarding the total negligence on the part of the RespondentNo.1 is left open to attack for any enhancement of the compensationsought by the claimants in the appeal, that portion of the appealclaim in fixing the joint liability against the insurer and owner of thevehicle of the respondents, since made final for the claim, suchcontention to say the claim is falsely fastened is untenable, but for ifat all to show any contributory negligence on the part of thedeceased also, as can be seen from the principle of law laid down in Ranjana Prakash V. Divisional Manager[[1]]. From this, now comingto any contributory negligence on the part of the deceased, thoughcharge sheet Ex.A-2 filed by the police against the rider of the bike ofthe 1[st] respondent from the facts covered by Ex.A-1 F.I.R and M.V.Ireport showing no damage even to the vehicle of the 1[st] respondent,it clearly speaks even both vehicles come in contact with oppositedirections for the fall of the deceased rider of the other bike andsustaining of head injury and succumbed there from, it is outcome ofalmost equal negligence but for to say main contribution includingfrom the material on record, appreciated by the Tribunal, for thisCourt while sitting in appeal to fix 40% liability on the part of the deceased and remaining 60% on the part of the rider of the bike of1[st] respondent-insurer with 2[nd] respondent covered by Ex.A-7 policyundisputedly for the 1[st] respondent also having valid driving licenceunder Ex.A-6 to indemnify.

6) From this, coming to the quantum of compensation, theclaimants are four in number of dependants on the deceased, as per Sarla Varma v. Delhi Transport Corporation[[2]]paras 29 to 32,1/4[th] to be deducted towards personal expenses and the accidentwas dated 30.10.2002 i.e., two years after the expression of theApex Court in Latha Wadhwa vs. State of Bihar[[3]]if Rs.3,200/- permonth is taken as earnings including from supervisory loss of thecultivation of land claim possessed under Ex.A-8 to A-10 and A-12, itcomes to Rs.2,400/- per month. The multiplier as per the age of thedeceased, is 17, it comes to Rs.4,89,600/-. Apart from it,Rs.1,00,000/- towards consortium, Rs.25,000/- towards funerealexpenses, Rs.10,000/- towards loss of estate, Rs.10,000/- towardscare and guidance to the minor children as per Rajesh v. Rajbir4]Singh[[]it comes to Rs.6,34,600/-. 60% of liability of therespondents therein is Rs.3,80,760/- rounded to Rs.3,80,000/-. Accordingly, point No.1 is answered.POINT No.2:

Conclusion

7) In the result, the appeal partly allowed by enhancing thecompensation from Rs.2,19,000/- to Rs.3,80,000/-. Rest of theterms of the award of the Tribunal holds goods. No order as tocosts.

8) Miscellaneous petitions, if any pending in this appeal, shallstand closed.

Date: 31-12-2014

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[1]2011(8) SCALE 240

[2]2009 ACJ 12982009 ACJ 1298

[3]2001 (8) SCC 1972001 (8) SCC 197

[4]2013(4)ALT 35(SC)2013(4)ALT 35(SC)

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Dr. B. SIVA SANKARA RAO, J