HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
M.A.C.M.A.NO.1372 OF 2007
JUDGMENT:
The claimants, who are wife and two
major sons of deceased by name Narayana Reddy aged about 56 years as per Ex.B.2
certificate issued by MNR medical College and hospital of Sanga Reddy, where
the deceased with injuries admitted on the date of accident-07.04.2004,
preferred the claim in M.V.O.P.No.807 of 2004 on the file of the III Additional
District and Sessions Judge(Fast Track Court), Medak, against the owner and Insurer
of the auto bearing No. AP 23 V 4926 covered by Ex.B.3 policy, in which the
deceased was travelling and from the claim of Rs.3,00,000/- since dismissed by
the Tribunal by its award dated 15.12.2006 with observation of the no proof of accident
was the result of the rash and negligent driving of the driver of the crime
auto; impugning the same they preferred the appeal with the contentions in the grounds of appeal as well as submissions
during course of hearing that the award of the tribunal is contrary to law,
that the tribunal should have considered that there is delay in reporting the
occurrence from illiteracy of the claimants and not otherwise to belie the
claim that when there is evidence before the tribunal about the auto driver’s
negligence made the auto colluded with the jeep coming opposite, the tribunal
should have considered the claim instead of dismissing, hence to set aside the
award and allow the appeal by granting the claim as prayed for before the
tribunal.
2.
The 1st respondent-owner of the crime auto who contested before the
tribunal and also deposed as R.W.1 stating that the deceased, aged about 65
years, was passenger of the auto however there was no negligence on the part of
the auto-driver but for opposite coming jeep-driver and thereby the claim must
be against jeep owner and insurer if any.
However, he did not choose to put forth his appearance in the appeal
even served, hence, taken as heard to decide on merits.
3.
It is the contention of the 2nd respondent-Insurer from the evidence
on record more particularly of the auto owner R.W.1 besides R.W.2 through whom
Ex.B.2 MNR medical college report exhibited that the accident was the result of
rash and negligent driving of the driver of opposite coming jeep and the
injured also stated so in Ex.B.2, which is admissible under Section 32 of Indian Evidence
Act and thus there is nothing to fasten liability on the auto owner and Insurer
and thereby sought for dismissal of the appeal.
4).Now the points that arise for consideration in the appeal are:
1.
Whether
the award of the tribunal finding that there is no rash and negligent driving
on the part of the auto driver for maintaining the claim against the owner and
Insurer of the auto is unsustainable and requires interference by this Court
while sitting in appeal against the award and if so with what observations and
with what compensation?
2.
To what result?
POINT-1:
5. The fact that the deceased before
his death immediately after the occurrence admitted with injuries in the MNR
College hospital covered by Ex.B.2 letter of the hospital issued to the 2nd
respondent-Insurer shows said injured stated his age about 52 years and
admitted sustained injuries in the road accident while travelling he was hit by
jeep is nothing to disturb but for to decide what is its truth regarding the
manner of accident. Ex.A.2 FIR which set
the law in motion about 18 days after the occurrence speaks from the report of
P.W.1-son of the deceased that, while the deceased was travelling in the auto
of 1st respondent, there was collusion between the auto and the
opposite coming jeep AD U 3575 and it is due to the negligent driving of the
auto driver only, his father-deceased sustained severe injuries on both legs and
admitted in MNR college hospital and hence to take action against the auto
driver. Ex.A.1 is the charge sheet filed by the police after investigation
holding that the auto driver is at fault. Ex.A.5 scene observation panchanama
speaks nothing but for location of the scene of offence as more than 18 days
after the occurrence for no features to indicate therefrom. There is no M.V.I. report
filed by either side. The inquest report
is pursuant to the FIR contents. The Ex.A.3 P.M. report speaks that the cause
of death is due to pulmonary embolism and bed sores following fracture of long
bone on left femur and anterior dislocation of right femur head. It correlates to the injuries sustained and
noted in Ex.B.2 admission and treatment report of MNR medical college about the
injuries sustained of injury dislocation of right hip, compound supracondylar
fracture on left femur and soft tissue injury to right knee and ankle. Para-2
of Ex.B.2 further speaks after necessary conservative treatment given, as he
developed bed sores on right buttock, he was advised report to NIMS/Osmania/Gandhi
hospital for further management and discharged on 05.05.2004. P.W.1’s evidence also speaks therefrom that he
was taken to Jogipet Government hospital for treatment where he breathed lost
and the P.M. report issued by that hospital.
The Ex.B.2 coupled with Exs.A.1 and A.2 chargesheet and FIR clearly
speak that the accident was the result of the involvement of the two vehicles
by coming opposite to each other. The
FIR and chargesheet speaks the auto driver is at fault and the statement of the
deceased traveling in the auto before MNR hospital speaks the jeep driver at
fault. A correlation and combined reading of the entire material speaks both drivers
are at fault. As size of the vehicle is
also the criteria in fixing contribution of negligence and from that the auto
is smaller in size to the jeep and the auto driver did not sustain any injuries,
it is a fit case to fix from the facts and attendant circumstances supra that
there is 40% contributory negligence on the part of the auto and remaining 60% is
on the part of the jeep driver. Therefore, the finding of the tribunal of no
negligence of the auto driver in totally exonerating the respondents is thereby
unsustainable to set aside the same.
6.
Coming to the quantum of compensation, though Ex.A.3 P.M. report speaks the age
of the deceased about 48 years and inquest report refers 48 years for no proof
filed regarding age like at least voters card or civil supplies card and what
the deceased when admitted as injured stated before the M.N.R. college hospital
covered by Ex.B.2 speaks his age 56 years it is just to fix the age of the
deceased 51 to 55. More particularly
from his two sons majors mentioned more than 25 years. Here among the three
claimants but for wife, the two sons are not shown as dependants being major
sons with own avocations. As per the apex Court’s expression in Sarla Verma v.
Delhi Transport Corporation[1]
paras 27 to 32 from number of dependants criteria to deduct the personal
expenses, it is just to deduct half of the amount of the deceased towards
personal expenses and the remaining half as contribution to his wife, for the two
major sons are not dependants. Coming to the earnings of the deceased, there is
nothing to say that he was attending any contract works much less as civil
contractor for no registration and no professional tax or the like. Thus from the accident was dated 07.04.2004
and basing on the apex Court’s expression in Latha Wadhwa vs. State of Bihar[2]
in the absence of proof of earnings, minimum to be taken at Rs.3,000/- per
month and the accident was three years after said expression to estimate the
earnings of the deceased with proportionate economic price index increase at
Rs.3,300/-p.m., and after half deducted towards personal expense it comes to Rs.1650/-
p.m. and from the age between 51 to 55, the multiplier applicable as per Sarla
Verma (supra) is 11. Then it comes to
Rs.2,17,800/- apart from it loss of estate minimum taken Rs.8,000/-, loss of
consortium to the 1st claimant –wife of the deceased from having two
major sons and they are more than 24 to 25 years at the time of the accident a
minimum of Rs.50,000/- though in Rajesh v. Rajbir Singh[3]
it was awarded Rs.1,00,000/- by considering the facts, Rs.25,000/- towards
funeral expenses comes to Rs.3,00,800/- rounded to Rs.3,00,000/- and 40%
contributory negligence of respondents comes to Rs.1,20,000/-. The claimants
are entitled for the remaining Rs.1,80,000/- estimated to proceed against the
driver and owner of the jeep by separate proceedings. Accordingly, point No.1
is answered.
POINT -2:
7.
In the result, the appeal is partly allowed by setting aside the dismissal
award of the tribunal by granting compensation of Rs.1,20,000/- for the 40%
contributory negligence of the auto driver against the respondents(owner and
insurer of the auto) with interest at 7.5% p.a. from the date of appeal filed
till realization/deposit. The respondent Nos.1 and 2, who are jointly and
severally liable to pay the compensation, are directed to deposit within one
month said amount with interest from the date of petition (after deduction of
any amount paid so far pursuant to the award of the Tribunal), failing which
the claimants can execute and recover. On
such deposit or execution and recovery, the claimants are permitted to withdraw
the same. With regard to the remaining compensation of Rs.1,80,000/-, the claimants are at
liberty to proceed against the driver, owner and insurer if any of the jeep by separate proceedings. There
is no order as to costs in the appeal.
________________________
Dr. B.SIVA
SANKARA RĀO, J
Date: 18-02-2014
VVR
