MACMA/950/2011 of Piligandla Venkata Seshamma , Seshamma Vs B.Bhupal Reddy on 30 December 2013

JUDGMENT:

The appellants 1 to 4 are the wife and three children of thedeceased, Puligandla Venkata Narayana, archakadar of Shivatemple-cum-agriculturist, filed the claim petition against the ownerand insurer of crime lorry bearing No.AP 24 V 3699 covered byEx.B1-Policy, claiming compensation of Rs.8,00,000/- with interestand the tribunal awarded only Rs.1,66,000/- with interest out ofRs.3,32,000/- arrived, by fixing contributory negligence at 50% onthe part of the deceased rider of the TVS XL Super vehicle bearingNo.AP 26/C-9942 and also mainly relied upon Ex.B2-rough sketchshowing the scene of offence is almost middle of the road.

2. Heard Sri N.Krishna Murthy, learned counsel for theappellants and Sri Naresh Byrapaneni and Sri K.V.Subba Reddy,learned Counsel for the respondents. Perused the material onrecord. The parties are being referred as arrayed before theTribunal for convenience sake.

3. The contentions of the appellants impugning the award fromthe grounds of appeal as well as oral submissions during thehearing in nutsheel are that, the award of the tribunal is contrary tolaw, weight of evidence, probabilities of the case, that the tribunalgravely erred in fixing contributory negligence despite the evidenceon record shows that it is the rash and negligent driving of the driverof the crime lorry, which resulted the accident, from which the deceased Moped rider met with instant death and that the tribunalalso erred in not taking the monthly earnings of the deceased frompourohityam, archakatvam and also as an agriculturist and otherconventional amounts awarded are also less and hence, to allowthe appeal by awarding compensation as prayed for before thetribunal.

4. Whereas, it is the contention of the contesting 2[nd] respondent-insurer to the appeal that the award of the tribunal is wellconsidered and reasoned one and for this Court while sitting inappeal either with the finding of contributory negligence or on theearnings of the deceased much less the multiplier adopted andother conventional sums allowed there is nothing to interfere andhence, to dismiss the appeal.

5. Now the points that arise for consideration in the appeal are:

1. Whether there is any contributory negligence of the deceasedrider of the TVS XL Super vehicle bearing No.AP 26/C-9942 inthe accident and if so what is the percentage of contributorynegligence that can be reasonable in the factual matrix toarrive and there from to decide what are the earnings of thedeceased that could be contributed to the claimants that lostfrom his death to arrive a just compensation and there from todecide what is the just compensation and with what rate ofinterest?rider of the TVS XL Super vehicle bearing No.AP 26/C-9942 inthe accident and if so what is the percentage of contributorynegligence that can be reasonable in the factual matrix toarrive and there from to decide what are the earnings of thedeceased that could be contributed to the claimants that lostfrom his death to arrive a just compensation and there from todecide what is the just compensation and with what rate ofinterest?

2. To what result?

POINT No.1 :-

6. The fact that on the fateful day i.e. 17.03.2008 at about 7.30A.M., the deceased Puligandla Venkata Narayana along with thepillion rider by name, K.Venkata Rama Mohan Rao, while

proceeding towards Kavali from Chowdavaram, the accidentoccurred involving the crime lorry of the 1[st] respondent bearingNo.AP 24/V-3699 insured with the 2[nd] respondent under Ex.B1-insurance policy, is not in dispute. Now, it is to decide out of whosenegligence and on whose contribution, the accident was resulted? In this regard, it is the pillion rider referred supra that has given thereport setting the law in motion, which reads, on that day himselfalong with the deceased, were proceeding on TVS Moped, thecrime lorry coming from opposite direction in a rash and negligentmanner, dashed against the bike and the deceased rider of the bikemet with instantaneous death in a pool of blood and he alsosustained injuries being pillion rider and the persons who werecoming from behind in auto including P.W.3-A.Venkata Ramachary called for ambulance and shifted him to hospital as rider of the bikesuccumbed instantaneously. Though, the F.I.R. and charge sheetare not by themselves having any evidential basis, the facts referredtherein relied upon by P.Ws 1 to 3 in their evidence in support of itsubstantiates the same despite said pillion rider did not come towitness box. There is nothing to draw any adverse inference asrightly pointed out by the learned counsel for the appellants fromnon-examination of the pillion rider as the other person who wascoming from behind in an auto that also witnessed the accident wasexamined by the claimants and deposed as P.W.3. Now, as per theevidence of P.W.3, it is the sheer negligence out come of rashdriving of the driver of the crime lorry the accident occurred. Themotor vehicle Inspector’s report, Ex.A4 is totally silent as to anydamage caused to the TVS Moped or to the lorry but for saying thelorry when tested is in good condition and it is not an outcome of mechanical defect. The fact remains from the investigation done bypolice and filing of Ex.A5-charge sheet also substantiates theEx.A1-F.I.R. contents of the main rash and negligent driving is onthe part of the lorry driver.

7. Now, on behalf of the owner and insurer of the crime lorry, noone come to witness box but for their relying upon Ex.B2-roughsketch to say the accident was on the middle of the road that speaksto say there is 50% contribution of the deceased also. It wasmarked without opposing the same and it is not in dispute by theclaimants on correctness of the scene of occurrence noted in therough sketch. However, that is not the sole basis but for to read withthe facts and attending circumstances from the evidence on recordof eye witness P.W.3. It is to say there from that, the tribunal gravelyerred in its observation in page-4 para-6 of the award that none ofPWs 2 to 4 are eye witnesses. Said observation is in ignorance ofthe fact born by record that PW3 is eye witness and so deposed asdiscussed supra. When P.W.3 speaks that the accident was theresult of sheer negligence of driver of the crime lorry and EX.B2-rough sketch marked virtually with the consent of both sides showthe accident was in the middle of the road and what PW3 spoken ofsheer negligence of lorry driver is not absolutely correct but for tosay the deceased also contributed the accident.

8. Then, the next aspect to be decided is what is the percentageof contribution on the part of the deceased for resulting theaccident. The tribunal without discussing anything arrived at 50%contributory negligence on the part of the deceased by simply

relying on Ex.B2-rough sketch and without basis for 50% to arriveeven there from. In fact, so far as contributory negligence of bothvehicles involved concerned, it all depends upon several factorsbut not from mere fact of accident occurred on the middle of the roadas that alone is not the decisive factor. In fact what made thedeceased to proceed in the middle of the road is an attendant factorto decide as to if at all despite due care and caution he wassupposed to proceed, from any condition of road etc., but for noevidence. In the absence of which, the other factors forconsideration are size and width of the road and size of the vehiclesinvolved. From very Ex.B2-rough sketch, the road is sufficientlywide as it is about 12 feet excluding margins. The finder of lastopportunity still with the lorry driver to say to avert to some extentwho was mainly contributed by his negligence to the accident. Themain contravention of lorry driver’s negligence speaks not only fromthe above but also from Ex.A2-Post Mortem Certificate, whichshows the head of the deceased was crushed under the wheels ofthe lorry, as a result he met with instantaneous death. Thus, but forthe main contributory rash and negligent driving of the lorry driverthe accident could not have happened in the manner thathappened. Once such is the factual matrix from the size of thevehicles involved are the TVS Moped and lorry, the contributorynegligence of the deceased is less and finder of last opportunity tothe lorry driver is also there to avert and there from it is just to fix thecontributory negligence of the deceased to 20% and the rest 80%on the part of the lorry driver. Now, from this coming to the earningsof the deceased, Ex.A1-F.I.R. which sets law in motion with nolapse of time of occurrence itself speaks the deceased wasarchakadar of shiva temple. Even the finding of the tribunal in pages 4 and 8 at paras 6 and 9 is clear in believing the avocation of thedeceased besides agriculturist as powrohityam/archakadar;however in saying for not considering any earnings of the deceasedfrom powrohityam and temple puja, though deposed he was gettingRs.9,000/- per month is for no recorded proof. In fact PW4 deposedbeing trust board member of the temple who issued Ex.A10-certificate to say the deceased was pujari of Shiva temple and wasgetting Rs.6,000/- per month. In fact there is no recorded evidenceother than the certificate produced regarding the salary fromarchakatwam of Shiva temple by the deceased. When the fact thatthe deceased besides agriculturist having more than Ac.8.00 centsin his own name proved from EXs A7 to A9-10(1) adangal, 10(3)adangal and pattadar pass book, besides his wife-PW1 alsoowning Ac.9.00 cents of land in her name under Exs A11 to A13 and it is further deposed by P.W.1 that thedeceased was supervising the same besides archakatwam of thetemple. When such is the factual matrix only Rs.3,000/- per montharrived by the tribunal, is contrary to law, that too having discussedthe propositions of law on the principle that even a non-earningmember income can be arrived safely more than Rs.3,000/-. In factthe Apex Court in Lata Wadhwa Vs. State of Bihar[[1]]held that adomestic contribution of a house wife or a non-earning member’sincome can be assessed at Rs.3,000/-. When it was of the year2000-2001 and the accident was dated 17.03.2008, fromagricultural supervision and the income from archakatwam of thetemple and apart from any powrohityam earnings even ignored fornot regular, the earnings of the deceased can be safely taken atRs.6,000/- per month as the land is there and what is lost is the

supervision by the deceased, besides income from salary asarchaka and income from powrohityam. When such is the casewhen the claimants are total four in number, as per Sarla Verma Vs.Delhi Transport Corporation[[2]], for persons depending more thanthree i.e. 4 to 6, 1/4[th] has to be deducted towards personalexpenses otherwise 1/3[rd]. Here the three children are majors,thereby instead of 1/4[th] it is just on the factual matrix to deduct 1/3[rd]for personal expenses. Then it comes to Rs.4,000/- per month and20% contributory negligence of the deceased, if deducted it comesto Rs.3,200/- per month. Even not taken any prospective futureearning capacity from archakatwam and agriculture supervisionfrom his age 50 years though otherwise to be taken, minimum 15%to be paid as per Rajesh Vs. Ranabir Singh[[3]], then it comes toRs.3200 x 12 x 13 (multiplier) = Rs.4,99,200/-. Apart from itRs.25,000/- towards funeral expenses, Rs.1,00,000/- towards lossof consortium to the 1[st] claimant were awarded as per Sarla Verma(supra). In addition to that towards loss of estate upto Rs.10,000/- isto be awarded as per Sarla Verma (supra). Thus in total the claimants are entitled to just compensation of Rs.6,34,000/- withinterest at 7 ½ %. Accordingly, Points 1 and 2 are answered.

POINT No.3 :-

9. In the result, the appeal is allowed in part by modifying thecontributory negligence on the part of the deceased from 50% to20% and by estimating the earnings of the deceased at Rs.6,000/-per month by enhancing compensation from Rs.1,66,000/- toRs.6,34,000/- with interest at 7.5% p.a., against the respondentsowner and insurer with joint and several liability to deposit/pay to the claimants by deducting out of it what is deposited so far if any,for balance that what is due. Out of said compensation, the 1[st]claimant is entitled to half and the 2[nd] claimant is entitled to 1/4[th]and the claimants 3 and 4 are entitled to 1/8[th] each. They arepermitted to withdraw Rs.50,000/- each in addition to what iswithdrawn, if any, and rest of the amounts be invested in a nationalbank for three years in separate F.Ds. There is no order as tocosts.

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

_________________________

Dr. B. SIVA SANKARA RAO, J

Date: 30-12-2013

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[1]AIR 2001 SC 3218

[2]2009 ACJ 12982009 ACJ 1298

[3]2013 ACJ 14032013 ACJ 1403