IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTYSECOND DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.No.672 of 2006 Between: Mohd. Iqbal Azeez and another .. Appellants AND Shaik Zaheer and 2 others .. Respondents JUDGMENT: The appeal is directed against the award in O.P.No.356 of 2004 on the file of the Motor Accidents Claims Tribunal-cum- District Judge, Karimnagar, dated 16-01-2006. Hussain Bee, the wife of the 1st claimant and mother of the 2nd claimant, was run over by Lorry No.AHW 3233 when she was crossing the road at Gangadhara cross road of Karimnagar on 27- 08-2002. Crime No.55 of 2002 was registered for her instantaneous death in the accident against the lorry driver and Hussain Bee working as tailor was earning Rs.3,000/- per month contributed entirely to her husband and son. Therefore, they claimed a compensation of Rs.4,00,000/- from the driver, owner and insurer of the lorry. The Tribunal framed issues about the responsibility for the accident and entitlement of the claimants to compensation and examined PWs.1 and 2 and marked Exs.A.1 to A.5 and B.1 during the enquiry. The Tribunal rendered the impugned award referring to Ex.A.1-First Information Report and Ex.A.2-charge sheet and the evidence of PW.1, the husband, and opining that if the lorry was going at a speed of 40K.M. on the high way, the deceased should have been careful and cautious enough in crossing the road and the share of negligence has to be apportioned between the deceased and the lorry driver at 70% and 30%. The Tribunal assessed the quantum of compensation with reference to the evidence of PW.2 about the occupation and income of the deceased and took the income at Rs.2,400/- per month and applied a multiplier of 17 for the age of the deceased at 30 years as specified in Ex.A.3-Post Mortem report. After deducting 1/3rd towards personal expenses of the deceased, the loss of dependency was calculated at Rs.2,72,000/- and the share of the liability of the respondents was assessed at Rs.81,600/-. The husband was granted Rs.15,000/- towards loss of consortium and the claimants were further granted Rs.15,000/- towards loss of estate and Rs.500/- each towards funeral expenses and transport charges. The total compensation of Rs.1,12,600/- was directed to carry interest at 7.5% p.a. The claimants challenged the said award herein contending that the income should have been taken as Rs.3,000/- and no contributory negligence could have been attributed to the deceased when the driver was prosecuted for an offence punishable under Section 304 A IPC. Interest should have been awarded at 12% p.a. and hence, they desired the entire compensation to be accordingly ordered. Sri M. Ram Mohan Reddy, learned counsel for the appellants and Sri Kota Subba Rao, learned counsel for the 3rd respondent are heard and respondents 1 and 2 remained unrepresented before this Court. The assessment of the compensation by the Tribunal is not seriously disputed by the claimants or the respondents and therefore, the apportionment of the responsibility for the accident alone is in question. It should be noted that though the claimants stated in the grounds of appeal that the entire income of Rs.3,000/- should have been accepted, it was fairly conceded that there was no positive evidence in proof of the quantum of such income. Coming to the share of the responsibility for the accident, it is seen from Ex.A.1-First Information Report registered at the instance of PW.1 that the lorry was alleged to be going at high speed and negligently. In Ex.A.2-charge sheet, which contained the result of independent investigation by the statutory agency, it was stated that another independent eye witness was also examined apart from the husband and brother of the deceased and the police concluded that the driver was guilty of an offence punishable under Section 304 A IPC. PW.1 denied any negligence on the part of his wife, while crossing the road, while it is true that he admitted that the lorry was going at a speed of 40 KMs per hour at the relevant time. While it is true that the pedestrian crossing the high way with heavy vehicular traffic should be careful and cautious while crossing the road at that part of the day, but any lack of reasonable care and caution on the part of a pedestrian does not give a licence to the drivers of the motor vehicles to dash against them with impunity. Assuming that the deceased appears from the very incident itself to have not exercised the required degree of diligence and care in crossing the road, the very incident also improbablises the vehicle going at such a speed as would not indicate the presence of any rashness or negligence on the part of the driver. The calculation of the speed at 40 KM per hour by PW.1 was obviously a reflection of his imagination, but not any calculation of mathematical precision. The vehicle would have been obviously going at a higher speed as otherwise, even if the deceased suddenly crossed the road unmindful of the moving vehicles, the driver of the offending vehicle would have been in a position to apply sudden brakes and stop the vehicle without hitting the deceased. The Tribunal placing more responsibility on the pedestrian and not the vehicle driver does not appear to be just or reasonable, more so, when any contributory negligence on the part of the deceased was not clearly evidenced by any evidence on record, but for the inferences drawn from the manner of the accident by the Tribunal. While the responsibility of the pedestrian also cannot be totally ruled out, the share of absence of reasonable care and caution attributed to the pedestrian and the lorry driver should have been 40% and 60% keeping in view the ordinary and natural course of human events under such circumstances. The compensation assessed at Rs.2,72,000/- + Rs.30,500/- should have been restricted to 60% of the compensation assessed, but not to 30% of the compensation under the circumstances. While no deduction need be made in the loss of consortium, loss of estate and funeral expenses, the deduction can be made only in the loss of dependency, which should, therefore, be now granted at Rs.1,63,200/-. The total compensation to be awarded should, therefore, be Rs.1,94,000/- and hence, the enhancement of the compensation can be rounded off to Rs.81,000/-. The interest on the enhanced compensation can be restricted to 6% p.a. in view of the length of time for which the interest has to be paid by the insurer, a custodian of public funds. Accordingly, the award dated 16-01-2006 in O.P.No.356 of 2004 on the file of the Motor Accidents Claims Tribunal-cum- District Judge, Karimnagar, is modified by awarding a further compensation of Rs.81,000/- with interest thereon at 6% p.a. from the date of petition till realization, in addition to the compensation already awarded by the impugned award. The enhanced portion of the compensation shall also be apportioned in the same proportion as that originally granted and no further directions need be given at this distance of time concerning the disbursement of the compensation. The Civil Miscellaneous Appeal is accordingly allowed in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 22-09-2011 Ksn