IN THE HIGH COURT OF JUDICATURE AT HYDERABD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH MONDAY THE FIRST DAY OF DECEMBER TWO THOUSAND AND FOURTEEN PRESENT HONOURABLE SRI JUSTICE B. CHANDRA KUMAR MACMA.NO. 889 OF 2005.
Between:
Battala Venkataramana & Anr. … Appellants V/s.
P.Khader Bee & Anr. … Respondents Counsel for the Appellants : Sri Kodanda Rami Reddy Counsel for the Respondents : Sri Vijaya Bhaskar Moola
R-1 dismissed for default vide CO.dt.3/1/12
R-2 appearance The court made the following : [judgment follows] HONOURABLE SRI JUSTICE B. CHANDRA KUMAR MACMA.NO. 889 OF 2005 JUDGMENT :
This Civil Miscellaneous Appeal has been filed challenging the award and decree dated 22/2/1996 passed in OP.No. 637 of 1993 by the Motor Accidents Claims Tribunal-cum-District Judge, Kadapa.
2. The Claims Tribunal held that there is contributory negligence and awarded an amount of Rs.45,000/- with 12% interest per annum from the date of petition till the date of realization.
3. The main contention of the learned counsel for the appellants is that there is no contributory negligence in this case and the Tribunal has awarded meagre amount of compensation.
4. Brief facts of the case are as follows:
On 26/8/1993 the deceased Siva Ramaiah was proceeding on a scooter along with two pillion riders, meanwhile a lorry bearing No. AAD-820 was coming in opposite direction in a rash and negligent manner without blowing horn dashed against the scooter. Due to the rash and negligent driving of the said lorry by its driver, Siva Ramaiah died instantaneously and others received grievous injuries. The claimants case is that the deceased was earning Rs.60/- to Rs.70/- per day. The Insurance Company filed its counter stating that the claimants have to prove all the facts alleged in the claim-petition.
5. On the basis of the above pleadings, the Claims Tribunal framed the following issues for trial :
1. Whether the petitioners are entitled to the compensation as prayed for?
2. To what relief the parties are entitled to ?
6. On behalf of claimants, PWs 1 to 3 were examined and Exs.A-1 to A-7 are marked. No evidence was adduced on behalf of the respondents.
7. PW-1 is the wife of the deceased.PW-2 is an eye-witness.
According to PW-2 he and his wife were pillion riders at the time of accident. His specific case is that the said lorry came in opposite direction without blowing horn and dashed against the scooter. Ex.A-1 is the certified copy of FIR, Ex.A-2 is the copy of charge sheet, Ex.A-3 is inquest report, Ex.A-4 is post-mortem examination certificate and Ex.A-5 is Secondary School Certificate, Ex.A6 certificate issued by Zilla Sainik Welfare Officer and Ex.A7 is service certificate issued by Sri Balaji Electricals, Kadapa. Admittedly, there is no contra evidence. The Claims Tribunal has also believed the evidence of PW-2 in coming to the conclusion that the driver of lorry had driven it in a rash and negligent manner. The Claims Tribunal further came to a conclusion that since three persons were on the scooter and the rider of the scooter was also negligent, therefore, the Claims Tribunal has awarded compensation of Rs.45,000/- under section 140 of the Motor Vehicles Act but the claimants have claimed compensation under section 166 of the Motor Vehicles Act. Whenever the respondents have taken a plea of contributory negligence, the burden lies on them to prove that there is contributory negligence. Merely because three persons were proceeding on a two wheeler, it is not necessary to hold that there is contributory negligence. In this case, the lorry was coming from opposite direction, the allegation is that the driver of the lorry has driven it in a rash and negligent manner without blowing horn. There is nothing on record to show that the rider of the scooter or the pillion rider are responsible for the accident or the fact that there were two pillion riders contributed in causing the accident. Moreover, there is no rebuttal evidence in this case. PW-2 has categorically deposed that the deceased was driving scooter slowly on the left side of the road at the time of accident. These facts were not taken into consideration by the Claims Tribunal, therefore, I hold that the driver of the lorry is responsible for the accident and the accident was caused due to the rash and negligent driving of the lorry by its driver.
8. Coming to the aspect of quantum, the deceased was aged about 23 years and the appropriate multiplier is 18. Having regard to the future increase in the income of the deceased, other facts and circumstances, I consider it just and reasonable to take the income of the deceased at Rs.2500/- per month. If 50% of the income is deducted towards personal expenses, the monthly loss of earning comes to Rs.1,250/-. The annual earnings of loss of income comes to Rs.15,000/-. It is now settled law, the age of the deceased has to be taken into criteria for determining compensation. In the light of recent judgment in RESHMA KUMARI
[1]
AND ORS V/s. MADAN MOHAN AND ANR . and AMRIT BHANU SHALI V/s. NATIONAL INSURANCE COMPANY LIMITED
[2]
, thus the total amount of compensation comes to Rs.2,70,000/- = [15,000 x 18]. The claimants are entitled to Rs.1,00,000/- towards loss of love and affection. Rs.25,000/- towards funeral expenses,. Now it is settled law, irrespective of the above amount of compensation claimed by the claimants, it is the duty of the court to award amount of compensation, which appears to be just and reasonable. So in the circumstances the rate of interest shall be 7.5% p.a. from the date of petition till the date of realization. Both claimants shall share the amount equally. The claimants have to pay deficit court fee. Even other wise, the Claims Tribunal shall deduct the amount required for the purpose of paying court fee from the amount deposited by the Insurance Company and pay the remaining amount equally to the claimants.
9. This Civil Miscellaneous Appeal is allowed accordingly. No costs.
10. As a sequel, miscellaneous petitions if any pending, in this civil miscellaneous appeal shall stand closed.
JUSTICE B. CHANDRA KUMAR .
04/12/2014
I s L
HONOURABLE SRI JUSTICE B. CHANDRA KUMAR MACMA.NO. 889 OF 2005
Circulation No. Date: 04/12/2014 Court Master : I s L Computer No. 43
[1] ) [2013] 9 SCC-65
[2] ) [2012] 11 SCC-738