THE HON’BLE SRI JUSTICE GHULAM MOHAMMED M.A.C.M.A.No.962 OF 2006 JUDGMENT: The appellant-Insurance Company filed this appeal under Section 173 of the Motor Vehicles Act, 1988, against the order, dated 02.11.2005, passed in O.P.No.199 of 1996 by the District Judge, Ongole. The brief facts of the case are as follows: Respondents/claimants who are the wife, the daughter and the son of the deceased filed the said O.P. claiming compensation of Rs.7,00,000/- for the death of Penubarthi Krishna Murthy who died in motor accident. At the time of accident, the deceased was aged about 45 years and was working as head master and earning Rs.5,129/- per month. While so, on 08.07.1995, he started from Thettu along with two rice bags and boarded the lorry bearing No. AAH 6679 and paid the charges for himself as well as for the rice bags. When the lorry reached outskirts of Ulavapadu at about 7.15 A.M. another lorry bearing No. AAO 5999 being driven by its driver at a high speed in a rash and negligent manner came from opposite direction and dashed against the lorry in which the deceased was travelling, due to which the deceased died instantaneously. The unofficial respondents remained ex parte before the Court below. Respondents 3 and 5 therein filed separate written statements denying all the material allegations. On behalf of the respondents/claimants, PWs 1 and 2 were examined and Exs.A-1 to A-6 were marked and on behalf of the insurance companies, no witnesses were examined but Exs.B-1 to B7 were marked. On a consideration of the oral and documentary evidence available on record, the learned Judge allowed the petition in part and awarded compensation of Rs.5,45,000/- to the respondents/claimants. Aggrieved by the order of the learned Judge, the present appeal is filed by the appellant. Learned counsel for the appellant contended that the learned judge committed a serious error in holding negligence in the proportion of 80:20 in respect of lorries bearing Nos. AAO 5999 and AAH 6679 respectively in view of the fact that PW2 being an eyewitness on behalf of the claimants stated that vehicle bearing No. 6679 also came at a very high speed. Moreover, there is no other evidence on record as to who is more and who is less negligent. The learned counsel for the respondents/claimants contended that the compensation awarded by the learned judge is quite reasonable and needs no interference. Heard the learned counsel and perused the material on record. As seen from the evidence, a bus was stopped on the road and offending lorry bearing No. AAO 5999 came from its back side to cross the bus. In my view, the driver of lorry bearing No. AAO 5999 ought to have observed whether any vehicle was coming from opposite direction or not. He should have reduced the speed of the vehicle and kept the vehicle under his control. At least he should have given horn before crossing the bus. The evidence of PW2 clearly shows that the driver of the lorry bearing No. AAO 5999 was negligent in driving. There is no rebuttal evidence in this case. The official respondents have not examined any other witness. The driver of the lorry bearing No. 5999 is also not examined. For non-examination of the said lorry driver, adverse inference has to be drawn. PW2 deposed that the lorry bearing No. AAE 6679 also came in high speed. The evidence on record clearly establishes that the driver of the lorry bearing No. AAO 5999 was mainly at fault. The learned judge relying on the judgment in APSRTC v N. KRISHNA REDDI AND OTHERS[1] observed that though the driver of the lorry bearing No. AAO 5999 was mainly responsible, the liability of other driver cannot be absolved. He too must have seen whether any vehicle was coming from opposite direction or not. Had he been little careful and reduced the speed of the vehicle on seeing the bus parked on the road, he could have avoided the accident and rightly held that respondents 1 to 3 therein are jointly and severally liable to pay 20% of the compensation and respondents 4 to 6 therein are jointly and severally liable to pay 80 % of the compensation to the claimants. Therefore, I see no merit in the appeal and the same is dismissed. No costs. GHULAM MOHAMMED,J Dt. 30.12.2010 lvl THE HON’BLE SRI JUSTICE GHULAM MOHAMMED M.A.C.M.A.No.962 OF 2006 Dt. 30.12.2010 [1] 2004 (5) ALT 322