HON’BLE SRI JUSTICE GHULAM MOHAMMED MACMA. No.252 of 2008 and MACMA.No.2193 of 2011 COMMON JUDGMENT: While MACMA.No.252 of 2008 is filed by the Insurance Company questioning O.P.No.3150 of 2004, dated 26.02.2007, on the file of the Motor Vehicles Accidents Claims Tribunal- cum-III Additional Chief Judge, City Civil Court, Hyderabad, MACMA(SR). No.25481 of 2008 is filed by the claimant against the very same O.P. seeking enhancement of compensation. While the claimant along with others was travelling from Hyderabad to Tirupathi in a Maruthi Van bearing No.AP 29C 9035, the driver of the Maruthi Van hit the lorry bearing No.ABT 2208 parked by the side of the road resulting grievous injuries to him and death of some others. The police filed Ex.A.2, charge sheet, against the driver of the lorry. The claimant, who claimed to be working as a Stores Incharge and earning Rs.6,500/- p.m., claimed a total compensation of Rs.8.00 lakhs from the owner of the lorry and the Insurance Company. The Insurance Company contested the claim alleging that there was no negligence on the part of the lorry driver, that the driver of the Maruthi Van drove the vehicle in a rash and negligent manner resulting in the accident and that the amount of compensation sought for was on a higher side. The Tribunal framed issues about the negligence in parking the lorry and the entitlement of the claimant to the compensation. The claimant examined PWs.1 to 4 and marked Exs.A.1 to A.13. On behalf of the Insurance Company, RW.1 was examined and got marked Ex.B.1 and Exs.X.1 to X.3. The Tribunal rendered the impugned order accepting the claim of PW.1 corroborated by Ex.A.1, first information report, and, having observed that it was not as though the lorry was moving, concluded that the driver of the Maruthi Van was negligent in hitting the stationed lorry from behind. The Tribunal further observed that the driver of the lorry had not taken necessary precautions while parking the lorry and attributed 50% contributory negligence to him. The Tribunal, on the basis of the evidence of PW.3, an Orthopedic Surgeon, and Ex.A.7, disability certificate, estimated that the claimant suffered 20% disability. Coming to the quantum of compensation, the Tribunal observing that there was no loss of income, awarded Rs.1,26,450/- under different heads and attributed contributory negligence to the driver of the Maruthi Van to the extent of 50% and awarded Rs.63,250/- as compensation payable with interest at 7.5% p.a. from the date of petition till the date of realization. Learned Counsel for the claimant contended that though the claim made by the claimant was for Rs.8.00 lakhs, the Tribunal had awarded meagre compensation of Rs.63,250/- attributing 50% contributory negligence. He further contended that though PW.3, who treated the claimant, assessed the disability at 20%, no amount was awarded under that count. He contended that having regard to the disability sustained by the claimant, his future prospects, with regard to his earnings and marriage, were affected. Sri Kota Subba Rao, learned Standing Counsel for the Insurance Company, submits that since the driver of the Maruthi Van hit the stationed lorry, attribution of 50% contributory negligence to the driver of the lorry by the Tribunal is illegal and unjustified. According to the FIR, one Soma Shekar was driving the Maruthi Van. The Maruthi Van rammed into the lorry stationed in the same direction. The suggestions put to the claimant, who was examined as PW.1, that the driver of the Maruthi Van was in sleeping mood and had no experience were denied. The Tribunal, taking into account the absence of filing the driving licence by the driver of Maruthi Van; non-filing of scene of offence; and the panchanama showing to the effect that there is any amount of contributory negligence on both the drivers of the vehicles, attributed 50% contributory negligence to the driver of the lorry and driver of the Maruthi Van. The accident occurred in the early hours of 23.08.2004. It was stated that due to poor light, the Maruthi Van being driven rammed into the lorry parked by the side of the road. The Tribunal observed that the driver of the Marthi Van was negligent and could have averted the mishap. The manner in which the accident occurred would reveal that Maruthi Van hit the lorry from behind. However, it is to be taken note of that the lorry was stationed without taking any precautions. If the driver of the lorry had taken necessary precautions while parking the lorry, the driver of the Maruthi Van would not have hit the lorry and the accident could have been averted. However, it is apparent that the driver of the Maruthi Van was also negligent to a certain extent. Therefore, I hold that the extent of contribution to the cause of accident by the driver of the Maruthi Van was 25% and that of the driver of the lorry was 75%. The Tribunal was wrong in attributing 50% contributory negligence to both the driver of the Maruthi Van and the driver of the lorry. Now the point for determination is the quantum of compensation to which the claimant is entitled to. PW.3, the Orthopaedic Surgeon of Sai Vani Hospital, in his evidence, stated that the claimant-PW.1 approached his hospital and he found fracture of both bones of femur; surgery was conducted on 23.08.2004; he was discharged on 04.09.2004 with an advice to take bed rest for two months; and again he was readmitted and underwent operation for removal of implants for both legs. He issued Ex.A.7, disability certificate, estimating the partial permanent disability at 20%. PW.1 also produced two bills under Ex.A.9 for Rs.42,250/- and Rs.4,200/- respectively. However, the Tribunal awarded compensation of Rs.35,000/- for fracture of both bones of femur; Rs.10,000/- for pain and suffering; Rs.5,000/- for food, transport and assistance; Rs.25,000/- for loss towards discomfort; Rs.5,000/- for loss of amenities of life; and Rs.46,450/- for bills marked under Ex.A.9. In total, the compensation awarded by the Tribunal was Rs.1,26,450/-. However, the Tribunal fixing 50% contributory negligence to the driver of the Maruthi Van awarded Rs.63,250/- towards compensation to the claimant. PW.2, in his evidence, stated that PW.1 was employed by him and was working as a Stores Officer on a monthly pay of Rs.6,500/-. According to PW.3, the disability suffered by the claimant was assessed at 20%. While taking the monthly earnings of the claimant at Rs.6,500/-, his annual earning would come to Rs. 78,000/- and the loss of income is estimated at Rs.15,600/- annually (Rs.78,000/- x 20%). As per the judgment of the Supreme Court in Sarla Verma vs. Delhi Transport Corporation[1], the appropriate multiplier that would be applicable to the age of the claimant is ‘18’. Therefore, by applying the multiplier of ‘18’, the loss of earnings can be assessed at Rs.2,80,800/- (Rs. 15,600/- x 18). In addition to the loss of earnings, the claimant is entitled to Rs.42,000/- towards medical expenses and Rs.10,000/- towards pain and suffering. In total, the claimant is entitled to a compensation of Rs.3,32,800/-. Since the driver of the Maruthi Van had contributed negligence to the accident to the extent of 25%, the extent of negligence is determined at Rs.83,200/- (Rs.3,32,800 x 25%). Consequently, we arrive at Rs.2,49,600/- after deducting 25% towards the contributory negligence of the driver of the Maruthi Van. Therefore, MACMA.No.252 of 2008 filed by the Insurance Company is dismissed and the MACMA(SR).No.25481 of 2008 filed by the claimant is allowed in part and the award in O.P.No.3150 of 2004, dated 26.02.2007, on the file of the Motor Vehicles Accidents Claims Tribunal-cum-III Additional Chief Judge, City Civil Court, Hyderabad, is modified by enhancing the compensation to Rs.2,49,600/- payable with interest at 6% p.a. from the date of petition till the date of realization by both the Insurance Company and the owner of the lorry jointly and severally. GHULAM MOHAMMED,J Date:31.03.2011 usd [1] 2009(6) SCALE 129