*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A.Nos.101, 104 & 116 of 2008 %08-12-2010 M.A.C.M.A.No.101 of 2008 #United India Insurance Company Limited, Patancheru, Medak District …… Appellant And $Chendri Ramaiah and others …..Respondents M.A.C.M.A.No.104 of 2008 #United India Insurance Company Limited, Patancheru, Medak District …… Appellant And $Gaddameedi Asnusha @ Pentamma and others …..Respondents M.A.C.M.A.No.116 of 2008 #United India Insurance Company Limited, Patancheru, Medak District …… Appellant And $Byagari Pentaiah and others …..Respondents !Counsel for the Appellant: Sri R.Briz Mohan Singh Counsel for the Respondents: Mr.S.Sudershan <Gist : >Head Note: ? Cases referred: 1. 2004(4) ALD 444 2. 2003(2) LW 75 3. 2000(1) ALD 239 IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A.Nos.101, 104 & 116 of 2008 DATE:08.12.2010 M.A.C.M.A.No.101 of 2008 Between: United India Insurance Company Limited, Patancheru, Medak District …… Appellant And Chendri Ramaiah and others …..Respondents M.A.C.M.A.No.104 of 2008 Between: United India Insurance Company Limited, Patancheru, Medak District …… Appellant And Gaddameedi Asnusha @ Pentamma and others …..Respondents M.A.C.M.A.No.116 of 2008 Between: United India Insurance Company Limited, Patancheru, Medak District …… Appellant And Byagari Pentaiah and others …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A.Nos.101, 104 & 116 of 2008 COMMON JUDGMENT: Common question of law arises in these three appeals relating to dependants of three persons who died in Motor Accident who were making triple riding of Hero Honda motor cycle. The accident took place on 30.08.2004 at about 8.40 P.M near H.P. petrol pump in the limits of Muthangi on national highway No.9, when three deceased persons were making triple riding on Hero Honda motor cycle bearing No.AP 23 F 8989. D.C.M van bearing No.AP 23 V 2075 came in the opposite direction and dashed the motor cycle resulting in spot death of three riders of the motor cycle. 2) The only contention put forward by the appellant’s counsel before this Court is that triple riding is prohibited under Section 128 of the Motor Vehicles Act and is punishable and that triple riding on motor cycle meant for riding only two persons, causes discomfort and inconvenience for the rider/driver of the motor cycle for want of space and there will be cramping resulting in lack of proper control on the motor cycle. The appellant’s counsel placed reliance on United India Insurnace Co., Ltd., V. K.Anjaiah[1] of this Court in support of his contention that because of triple riding there will be contributory negligence on the part of driver of the motor cycle. It was held therein that in such case 25% of the compensation has to be disallowed towards contributory negligence on the part of the motor cycle rider. This Court rendered the said decision on probabilities and presumptions by absolving as follows: “Under those circumstances, even in the absence of independent evidence adduced by the Insurance Company that the accident had occurred due to triple riding, it can be reasonable presumed that the rider of the scooter was discomforted by reasons of allowing two pillion riders and thus contributed in causing the accident. Had he been riding the scooter with one pillion rider, probably he would have averted the accident by swerving the scooter to the extreme left side, but could not do so probably, his hands and legs movement was limited due to the congestion. In such view of the matter, the culpability in causing the accident is fixed at 75% on the part of the driver of the accident lorry and 25% on the part of the rider of the scooter. I am fortified in my view by the decision Managing Director, Tamil Nadu State transport Corporation v. Abdul Salam[2]” 3) On the other hand, the claimants’ counsel placed reliance on G.Pitchaiah Naidu V. A.P.S.E.B, Madakaira[3] of this Court. Both these reported decisions were rendered by one and the same learned Judge. In G.Pitchaiah Naidu (3 supra), this Court held that when driver of the lorry was found to be rash and negligent in driving the vehicle, he cannot plead contributory negligence on the part of the driver of the motor cycle on the ground that he was taking two pillion riders and he had no driving licence. This Court observed therein: “In view of the evidence on record, I am of the view that the Tribunal has erred in deciding the first issue and imposing contributory negligence to the extent of 50% on the part of the appellant and the remaining 50% on the part of the driver of the lorry. The finding reached at by the Tribunal with regard to the first issue, in my view, is not just and proper in the facts and circumstances of the case.” 4) Having regard to the above two pronouncements of this Court, it follows that finding as to negligence or contributory negligence has to depend on evidence on record. It is only in the absence of any evidence on record, the question of drawing presumptions under law or on facts can be resorted to. Evidence on record cannot be brushed aside placing reliance on probabilities and presumptions. Evidence in that particular case is the first criterion while considering the issue regarding negligence or contributory negligence. If evidence on record is scrutinised in the light of the above pronouncements of this Court, it is evident that there is sufficient evidence on record let in by the claimants to prove negligence on the part of D.C.M van driver. P.W-2 is cashier in Isnapur filling station, Muthangi in front of which petrol pump the accident took place. It is his categorical evidence that the accident occurred due to fault of D.C.M van driver as he drove the vehicle in rash and negligent manner and dashed the motor cycle in wrong direction. It is not a case where there was head on collision between two vehicles on middle of the road. D.C.M van driver drove the same towards wrong side and dashed the opposite motor cycle killing three riders on the motor cycle on the spot. This is not a case where due to triple riding, driver of the motor cycle became cramped and could not control the vehicle due to discomfort or inconvenience because of triple riding. Evidence on record amply proved that the fault was with D.C.M van driver only and that there was no fault on the part of motor cycle rider/driver and that for no fault of the motor cycle driver, D.C.M van came on to wrong side and dashed the motor cycle which was going in proper direction. Thus, the lower Tribunal was right in holding that the accident took place due to rash and negligent driving of D.C.M van driver. The motor cycle rider/driver on which three deceased persons were travelling did not contribute any negligence for this accident. This accident was not due to triple riding of the motor cycle, but due to fault as well as rash and negligent driving on the part of the D.C.M van driver. 5) There is no dispute with regard to quantum of compensation awarded by the lower Tribunal in all these three matters. 6) In the result, all the three appeals are dismissed with costs. _______________________________ SAMUDRALA GOVINDARAJULU, J December 08, 2010 NOTE: L.R.Copy to be marked (b/o)ksh [1] 2004(4) ALD 444 [2] 2003(2) LW 75 [3] 2000(1) ALD 239