THE HON’BLE SRI JUSTICE B.N.RAO NALLA M.A.C.M.A.No.2221 of 2007 JUDGMENT: This appeal is filed by the insurance company against the order dated 06.12.2006 in O.P.No.801 of 2004 on the file of the Chairman, Motor Vehicles Accidents Claims Tribunal-cum- Principal District Judge, Medak at Sangareddy whereby the claimant was awarded compensation of Rs.7,65,000/-. 2. Initially the first respondent-claimant claimed Rs.3,00,000/- for the injuries sustained in a motor vehicle accident. Later claim of compensation was enhanced from Rs.3,00,000/- to Rs.12,00,000/- as per the orders dated 27.01.2006 in I.A.No.61 of 2006. 3. The case of the claimant is that on 15.11.2002 at about 8 p.m., he was riding the scooter bearing No.AP- 9/A-8683 with one Venkatesham as pillion rider and when they reached the outskirts of Vantimamidi village, tractor/trailer bearing No.AP-28/1619/1620 parked without any parking indicators/lights on the road, he hit the tractor and sustained grievous head injury and Police, Mulugu registered a case in Crime No.59/2002 for the offence under Section 337 IPC against the driver of the tractor-trailer. He was admitted in Apollo hospital and was treated as inpatient from 15.11.2002 to 18.12.2002. He incurred an expenditure of Rs.1,00,000/-. Due to the said injuries, his four limbs were paralysed and he is unable to talk and move without assistance. He was aged 39 years at the time of accident. He was professional businessman, who used to run grocery shop, fertilizer shop and cement shop and also he is having 16% share in a Rice Mill. Apart from that, he used to work as LIC Agent and also do agriculture. His net monthly income was Rs.10,000/-. His wife and two children were depending on his earnings. As such, respondents 1 and 2 being owner and insurer of the said tractor/trailer are jointly and severally liable to pay the compensation. 4. insurance company filed counter stating that the claimant-injured himself was responsible for the accident as he himself hit the tractor and that the alleged accident occurred between the scooter and tractor-trailer due to the fault of claimant. It disputes the nature of the injuries suffered by the claimant as well as his age and earnings. 5. During the course of trial, PWs 1 to 4 were examined and Exs.A.1 to A.24 were marked on behalf of the claimant, whereas RW.1 was examined and Exs.B.1 to B.3 were marked on behalf of the appellant-insurance company. 6. Taking into consideration the evidence brought on record and the facts and circumstances of the case, the lower Tribunal partly allowed the O.P. with proportionate costs awarding compensation of Rs.7,65,000/- with interest at the rate of 7.5% per annum from the date of the petition till realisation holding that the second respondent-owner and the appellant-insurer of the accident tractor/trailer are jointly and severally liable to pay the said compensation amount. 7. Aggrieved by the said order, the insurance company filed the present appeal attributing contributory negligence on the part of the claimant; that his income was fixed erroneously at Rs.6,000/- per month; that the Tribunal committed error in apportioning contributory negligence and awarding the quantum of compensation. However, it is contended by the appellant-insurance company that at the time of accident, the tractor/ trailer was parked in front of the house of second respondent and that the injured himself was responsible for the accident as he himself hit the tractor and as such the second respondent-insurance company is not liable to pay any compensation. It is also contended that the owner and the insurer of the scooter were not impleaded though they were necessary parties and the claim petition was bad for non-joinder of necessary parties. 8. That as per the evidence of PW.4, the tractor-trailer was not parked on the middle of the road. That second respondent-owner has stated before the Police in his 161 Cr.PC statement that it was parked vehicle at the time of the accident; that as per Ex.B.1 rough sketch and Ex.B.2 scene of offence panchnama, the tractor-trailer was parked on the extreme left side of road and there is no fault on the part of its driver. 9. It is canvassed on behalf of appellant-insurance company that the lower Tribunal has committed error in apportioning the negligence at 85% towards driver of the tractor/trailer and 15% towards first respondent-claimant. 10. It is contended on behalf of the first respondent-claimant that PW.4 was examined as eye witness to the accident testified that the tractor/trailer was parked in middle of the road and due to focus of the lights of vehicle coming from opposite side, the first respondent-Scooterist could not see the tractor. In support of his contention, the first respondent-claimant relied on the decision reported in United India Insurance Co. Ltd. Hyderabad v. T.Gandamma and others [1] wherein this court while dismissing the appeal filed by the insurance company, referred the following decisions: “In Marjit Kaur v. State of Punjab, 2001 ACJ 211, while dealing with the concept of negligence and duty of care, Tractor-trolley was parked on half portion of the road and a motor –cyclist dashed against it in the night resulting in his death and there was no evidence that tractor-trolley had warning lights, red lights or reflectors to warn the driver of other vehicles, tractor driver had not taken any precaution so that driver of any other vehicle could locate the parked vehicle in the night time, the finding of the Tribunal that tractor driver was rash and negligent was upheld in the appeal.” “ In National Insurance Co. Ltd. v. Abhay Singh Yadav, 2007 ACJ 2175, it was held as under: Admittedly, the alleged accident took place at about 7.30 p.m. in the night. According to the site plan, the truck was parked in front of a dhaba, which had sufficient land for parking of the truck. But even then, the truck driver chose not to park the truck in the land between the dhaba and the road, but chose to park the truck on the left hand side of the road. According to the witnesses, the truck had no reflectors, blinkers, indicators or even a line of stones around it to clearly indicate its stationary position to the vehicles which were moving behind it. The truck driver while parking the truck in such a haphazard manner owed a duty to the public at large to indicate that the truck had been parked on the road itself. Even assuming that the truck was parked on an emergency basis, the driver was required to give some indication to the public by turning on the indicators, stop lights or by placing stones around the truck that the truck was stationary and not moving. None of these precautions were taken by the truck driver. Hence, the truck driver was clearly negligent in parking the truck on the road itself.” 11. Further, the lower Tribunal considered the fact that there was no evidence to show that the vehicle was parked in the middle of the road, and as such the first respondent-claimant was also held to be contributorily negligent to the extent of 15%. 12. So far as the earnings of the first respondent-claimant-injured are concerned, Exs.A.16 to A.22 are relied on by him. According to which, he was carrying on kirana business or otherwise he was partner thereof. As such, he is entitled to supervisory charges. Therefore, the lower Tribunal cannot be said to have committed an error in fixing the monthly earnings of the first respondent-claimant-injured at Rs.6,000/-. The lower Tribunal after fixing the age of the first respondent-claimant at 52 years, applied proper multiplier of 6.31 and taking into consideration that he was a businessman, fixed his monthly income at Rs.6,000/- and also considering his being contributorily negligent at 15%, fixed the compensation at Rs.7,65,000/-. 13. In the above facts and circumstances the case, it cannot be said that the lower Tribunal has committed error in fixing the monthly income of first respondent-claimant and arriving at Rs.7,65,000/- with proportionate costs and interest at 7.5% p.a. from the date of petition till realisation. As such, this court is of the view that the impugned order does not, in any way, warrant interference from this court and the appeal is liable to be dismissed. 14. In the result, the M.A. C.M.A. is dismissed. ______________ NALLA, J 01-07-2010 Stp [1] 2009 (6) ALD 779