HONOURABLE
Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.1319 OF 2011
JUDGMENT:
The respondents-Managing Director and
Depot Manager of the Andhra Pradesh State Road Transport Corporation(for short,
‘the APSRTC’) of the claim petition M.V.O.P.No.2398 of 2008 filed under Section 166 of the Motor Vehicle
Act,1988 (for short, ‘the Act’) by
the claimants i.e. father, mother and brother of deceased Ganesh Reddy, on
the file of the learned Chairman of the Motor Accidents Claims Tribunal–cum-IX
Additional Chief Judge(FTC), City Civil Court, Hyderabad (for short,
‘Tribunal’),for compensation of Rs.5,00,000/- for the death of Ganesh Reddy
in the motor accident which took place on 12.02.2008 while proceeding on his
scooter bearing No.AP 10 B 2603 as a pillion rider near Mithani township, due
to rash and negligent driving of the driver of bus bearing No.AP 10 Z 5036
belongs to the respondents, since granted 3,10,000/-, impugning the same,
preferred this appeal with the contentions in the grounds of appeal that the
judgment and decree passed by the tribunal is illegal, contrary to law, weight
of evidence and probabilities of the case, that the tribunal went wrong in
coming to conclusion that the accident occurred was only due to the rash and
negligent driving of the driver of the bus, it ought to have held that the accident
took place due to rash and negligent riding of the rider of the scooter only,
that the tribunal failed to see that at
the time of accident the deceased was travelling as a pillion rider along with
3 other persons (totally 4 persons) on the scooter bearing No.AP 10 B 2603 and
as such the rider of the scooter lost control and fell down and as such the
driver of the bus was not responsible for the accident, that the tribunal
failed to see that P.W.2 admitted in his cross-examination that the rider of
the two wheeler was not having any driving license at the time of driving and 4
persons were travelling on the scooter, as such the rider of the motor cycle
was alone responsible for the accident, that the tribunal ought to have applied
the principle of Res Ispa Loquitor to the facts of the present case, that the
tribunal having observed that there was no income of proof of the deceased and
no age proof erred in awarding Rs.3,10,000/- and the learned tribunal did not
give any reasons how the claimants are entitled for the said amount, that the
tribunal erred in awarding interest at 9% p.a. hence to set aside the award of
the tribunal and reduce the quantum of compensation. The learned standing
counsel for the appellants reiterated said contentions during course of
hearing.
2. Whereas, it is the contention of the claimants that the
award of the tribunal holds good but for no cross-objections the compensation
is to be enhanced and there is nothing to interfere for this Court while
sitting in appeal, hence to dismiss the appeal.
3. Perused the material on record. The parties hereinafter are referred to as
arrayed before the Tribunal for the sake of convenience in the appeal.
4. Now the
points that arise for consideration in the appeal are:
1. Whether
the compensation awarded by the tribunal is excessive and exorbitant and
requires interference by this Court while sitting in appeal to reduce, if so,
with what observations?
2. Whether
there is any contributory negligence on the part of the deceased and if so at
what percentage and whether the quantum of compensation awarded by the tribunal
is excessive to reduce as well as the rate of interest and with what
observations?
3.
To
what result?
Point
No.1:
5. The manner of accident
as can be seen from the evidence of P.Ws. 1 and 3 with reference to Ex.A.1
F.I.R. and A.2 chargesheet though maintained against the driver of the bus, it
speaks that 4 persons including the deceased were proceeding on the scooter is
not in dispute which could be presumed per
se, that too, when the bus was coming in opposite direction they are unable
to control and contributed to the accident. No doubt, the major part of
negligence is also on the part of the bus driver from the bus coming in opposite
direction to the scooter as the bus being big in size, however that does not
absolve contribution by the motor cycle rider of deceased from the two wheeler
4 persons including himself lost control in noticing the bus coming in opposite
direction, fell down and the deceased succumbed to injuries. Thus, size of the
vehicle, size of the road, manner of accident and place of occurrence with
reference to the scene of observation report and M.V.I.report showing the
damages to the vehicle are the relevant factors in fixing contributory
negligence and in the factual matrix it is just to fix 20% on the part of the
deceased, leave about the remedy to claim separately against the scooter owner
and Insurer if any for any entitlement. Now coming to the 80% contributory
negligence of the driver of the respondents-APSRTC concerned as the accident
was in February,2008 as per the Apex
Court’s expression in Latha Wadhwa vs.
State of Bihar[1]
that even there is no proof of income and earnings, it can be reasonably
estimated with a minimum of Rs.3,000/- p.m. for any non-earning member and with proportionate increase from the
date of above expression to the date of accident, it comes to Rs.3,700/- p.m.
and among the three claimants, 3rd claimant is not a dependant but
for the two claimants parents, half is deducted towards personal expenses as
per the expression in Sarla Verma v. Delhi Transport Corporation[2],
it comes to Rs.1850/- x 12 x
18(multiplier as on the date of accident, the age of the deceased was 20 years)=Rs.3,99,600/-and
Rs.1,35,000/-(Rs.1,00,000/- towards consortium to the parents, Rs.25,000/- towards
funeral expenses and Rs.10,000/- towards loss of estate) is added to it, it comes to Rs.5,34,600/- out of it 20%
towards contributory negligence of the deceased, it comes to Rs.1,06,920/- and
towards 80% contributory negligence of the respondent, it comes to Rs.4,27,680/-.
Thus, but for no cross-objections of claimants to enhance, what was awarded
even low no way requires to enhance. Coming to the rate of interest, the
tribunal awarded at 9% p.a. however since as per the expression of the Apex
Court in Rajesh v. Rajbir Singh[3] 7.5% p.a. is awarded
the rate of interest awarded by the tribunal, is reduced to 7.5% only. Accordingly, point No.1 is answered.
Point No.2:
6. In the result, the appeal is partly allowed while confirming the
quantum of compensation awarded by the tribunal of Rs.3,10,000/- for 80%
negligence of the bus driver by fixing remaining 20% contributory
negligence on the part of the rider of whose deceased with three others were
proceeding, however reduced the rate of interest to 7.5% p.a from 9% p.a. from
the date of appeal till realization but confirming the 9% interest as awarded
by the tribunal from the date of petition till date of appeal. Rest of the
award holds good. There is no order as to costs. Consequently, miscellaneous
petitions, if any, pending in this appeal shall stand closed.
_________________________
Dr. B. SIVA SANKARA RAO, J
Date: 27.12.2014
VVR
