IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A No.5170 of 2008 Dated:16-09-2011 Between: Smt.Asma Roohi and another. ….Appellants. And Sri L.Somalingam and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.ANo.5170 of 2008 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal at the instance of the claimants is directed against the award passed in O.P.No.2048 of 2008 by the IV Additional Metropolitan Sessions Judge-cum-XVII Additional Chief Judge, Hyderabad on 13.10.2008. The appellants herein, who are wife and daughter of the deceased Md.Akbar Ali, made a claim under Sections 166 and 163-A of Motor Vehicles Act claiming compensation of Rs.45,00,000/- for the death of deceased Md.Akbar Ali in a motor vehicle accident. According to them, on 05.04.2006 while the deceased and his friends proceeding in a Santro Car from Hyderabad to Narketpally and when their car reached outskirts of Peddakaparthy village at about 11.40 A.M, a lorry bearing No.AP 29T 2202 driven by its driver in a rash and negligent manner in opposite direction and dashed the car of the deceased, as a result of which the deceased and two others died on the spot and other inmates of the Santro car received injuries. According to the appellants, the deceased was aged about 25 years and doing business in Leather industry and Cine industry (setting contractor) and was earning Rs.1,65,373/-, as such they are entitled for compensation of Rs.45,00,000/- The 2nd respondent opposed the said claim by filing counter and pleading that the petition is bad for non joinder of owner and insurance company of the Santro car and put the petitioners to strict proof that the driver of the lorry driven the same in a rash and negligent manner and caused accident and there is no contributory negligence on the part of the driver of the Santro car and put to strict proof with regard to the age and earnings of the deceased and also pleaded that the compensation claimed by the petitioners is highly excessive and exorbitant. On the above pleadings, the Tribunal has framed the following issues: (1) Whether the deceased died in the accident that took place due to rash and negligent driving by the driver of Lorry bearing No.AP 29T 2202? (2) Whether the petitioners are entitled for compensation? If so to what amount and from whom? (3) To what relief? The 1st petitioner examined herself as P.W.1 and also examined one S.A.Hameed said to be the eyewitness to the accident as P.W.2 and got marked Exs.A.1 to A.8. No oral evidence was adduced on behalf of the respondents, but marked Ex.B.1 copy of the policy on their behalf. The Tribunal by taking into consideration of the said oral and documentary evidence held the issue No.1 that the accident occurred due to 50% negligence of the driver of the lorry bearing No.AP 29T 2202 and due to 50% negligence of the driver of the Car bearing No.AP 9AB 9250. With regard to issue No.2 awarded total compensation of Rs.17,75,000/-, but in view of 50% of contributory negligence on the part of the driver of the Car awarded Rs.8,87,500/- against the insurance company of the lorry. Aggrieved by the said findings of the Tribunal with regard to contributory negligence, the claimants have filed the present appeal. The appellants’ counsel has pleaded that P.W.2 eyewitness has specifically stated about the negligence on the part of the lorry driver in causing the accident and simply because it was mentioned in the F.I.R. that the accident was occurred due to head-on-collision, it cannot be treated as contributory negligence on the part of the driver of the Santro Car in the said accident. He further pleaded that the police after due investigation filed the charge sheet only against the driver of the lorry, as such the Tribunal erred in finding that there is contributory negligence of 50% on the part of the driver of the Santro car and it ought to have been held that the accident was occurred due to rash and negligent driving of the lorry driver. The respondents’ counsel on the other hand has pleaded that when there is a head-on-collision, it has to be presumed that there is a contributory negligence on the part of drivers of both the vehicles; as such the Tribunal has rightly fixed the contributory negligence at 50% each on both the drivers. On behalf of the petitioners, P.W.2, said to be the eyewitness, examined to establish the rash and negligent driving on the part of the driver of the lorry. The Tribunal disbelieved the evidence of P.W.2 as his name did not find place in the charge sheet filed by the police. The Tribunal also disbelieved the explanation given by the Inspector of Police for filing the charge sheet against the driver of the lorry alone in view of lodging the F.I.R. against the drivers of both the vehicles. The Insurance Company in their counter did not take specific plea of contributory negligence on the part of the driver of the Santro car in causing the accident. They only put the petitioners to strict proof that the driver of the lorry driven the same in a rash and negligent manner and caused the accident and there is no contributory negligence on the part of the driver of the Santro Car. Even if it is presumed that the Insurance Company has taken the specific plea of contributory negligence, the burden is on them to establish the same by producing necessary evidence. Admittedly, no evidence was adduced on behalf of the Insurance Company to establish the contributory negligence on the part of the driver of the Santro Car. The learned counsel for Insurance Company relied upon the findings recorded by the Tribunal to justify the findings recorded by the Tribunal fixing 50% contributory negligence on the part of the driver of the Santro Car. Since the Insurance Company has taken the plea of contributory negligence, the burden is on them to establish the same and they ought to have been examined the driver of the lorry and also the person, who has issued the F.I.R. to speak about the manner in which the alleged accident has taken place and they also ought to have been produced the rough sketch of the scene of offence prepared by the investigating Officer, who has filed the charge sheet against the driver of the lorry. Even though the petitioners examined P.W.2, said to be the eyewitness, except putting a suggestion that the accident was occurred due to contributory negligence of Santro car driver, nothing was elicited positively in that regard. The petitioners also produced F.I.R. Ex.A.1 and Charge sheet Ex.A.5. In the F.I.R. Ex.A.1, it was mentioned that both the vehicles came in a rash and negligent manner in the opposite direction and there was head-on-collision. But the investigating officer, who has filed the charge sheet Ex.A.5, has categorically mentioned that the evidence collected by him shows that the accident was occurred only due to rash and negligent driving of the driver of the lorry and the lorry gave dash to the Santro Car bearing No.AP 9AB 9250 in the opposite direction and pushed the car to distance of 50 feet. When no contrary evidence was produced on behalf of the Insurance Company, the averments made in the charge sheet, which is the final report after due investigation made in pursuance of the F.I.R., has to be relied upon. The Insurance Company’s counsel has pleaded that when there is a head-on-collision, the inference has to be drawn that there was a contributory negligence on the part of drivers of both the vehicles and in support of his contention he relied upon the decision rendered in “BIJOY KUMAR DUGAR V. BIDYA DHAR DUTTA AND OTHERS[1]”, in the above said decision, the Apex Court has observed that “it is the evidence of Rajesh Kumar Gupta P.W.2 who was traveling in the Maruthi Car along with the deceased Raj Kumar Dugar on the day of the accident that he also suffered some injuries in the said accident. He stated that while coming from Digboi, the Maruthi Car being driven by the deceased met with an accident at a place near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruthi Car being driven by the deceased Raj Kuamr Dugar and the offending bus had head-on collision. MACT has not accepted the evidence of P.W.2 to prove that the driver of the offending bus was driving the vehicle at abnormal speed. If the bus was being driven by the driver abnormally in a zigzag manner, as P.W.2 wanted the Court to believe, it was but natural, as a prudent man, for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus coming from the opposite direction from a long distance. It was head-on collision in which both the vehicles were damaged and, unfortunately, Raj Kumar Dugar died on the spot. MACT, in our view, has rightly observed that had the knocking been on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincing reason to disagree with the well-reasoned order of MACT on this point.” In the present case, no evidence was produced by the Insurance Company as to show that how the accident has taken place and what precautions the driver of the car ought to have been taken to avoid the accident. Moreover in the above said decision, the Apex Court has not held that whenever there was a head-on-collision, it has to be presumed that the drivers of both the vehicles are having contributory negligence in causing the said accident. In the present case, as already observed above the investigating officer filed the charge sheet fixing the liability only on the driver of the lorry and P.W.2, who was examined on behalf of the petitioners, has categorically stated that the accident was occurred due to the rash and negligent driving of the driver of the lorry and no evidence was produced on behalf of the insurance company to establish the contributory negligence on the part of the driver of Santro Car, the finding recorded by the Tribunal in that regard is not sustainable. Thus, the finding of the Tribunal that there is 50% negligence on the part of the driver of the Santro Car is liable to be set aside. The appellants’ counsel has not questioned the quantum of compensation awarded by the Tribunal. In the result, the appeal is allowed, holding that the appellants are entitled for the total compensation of Rs.17,75,000/- as awarded by the Tribunal against the respondent Nos.1 and 2 confirming the Other terms of the award passed by the Tribunal. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:16-09-2011 Ksp [1] (2006) 3 Supreme Court Casse 242