HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.2187 of 2005 JUDGMENT: This appeal is directed against the order dated 30.05.2005 in OP No.270 of 2000 on the file of the Motor Accidents Claims Tribunal cum Additional District Judge, [for short ‘the Tribunal’, Ananthapur, wherein, the claim of the respondents 1 and 2 herein was allowed awarding compensation of Rs.1,50,000/- with interest at 9% per annum from the date of petition. 2. With the consent of both the counsel, the matter is taken up for final hearing though it was at the stage of interlocutory. Heard the learned counsel for the appellant and the learned counsel for the respondents 1 and 2. Perused the record. 3. The respondents 1 and 2 herein filed claim application before the Tribunal seeking compensation of Rs.2,50,000/- but restricting their claim to Rs.1,50,000/- on account of death of the deceased K. Purushotham Reddy, who died in a motor vehicle accident that occurred on 05.12.1999. According to the claimants on that night the deceased along with two others went to the fields for watering crop and was sleeping by the side of the road covering themselves with blankets and that at about 11.30 p.m. lorry bearing No.AP 03 U 1266 came from Tadipatri side driven in a rash and negligent manner and ran over the deceased and one Nagi Reddy and both of them died on the spot, while the third person sleeping with them escaped. Tadipatri police registered a case in Cr.No.154 of 1999 against the driver of the lorry. According to the claimants, the deceased was aged 20 years and was doing cultivation and earning Rs.3,000/- per month. 4. The owner of the lorry remained exparte. The appellant- insurer filed counter opposing the claim and denying their liability to pay the compensation. 5. The Tribunal framed the following issues for trial. 1. Whether the accident occurred on 05.12.1999 due to rash and negligent driving of the lorry bearing No.AP 03 U 1266 by its driver, run over the deceased and caused the death of the deceased? 2. Whether the petitioners are entitled to compensation, if so, to what amount and from which respondent? 3. To what relief? 6. During the trial, PWs.1 and 2 were examined and Exs.A.1 to A.5 were marked on behalf of the claimants. RW.1 was examined and Exs.B.1 and B.2 were marked on behalf of the appellant/insurer. 7. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the lorry by its driver. The Tribunal further held that the claimants are entitled for total compensation of Rs.1,50,000/- with interest at 9% per annum from the date of petition. Aggrieved by the said award, the present appeal is filed by the insurer. 8. Learned counsel for the appellant would contend that admittedly, the accident occurred during night time and there was no light at the spot and there was no possibility for identifying either the lorry or bus driver and a false case is foisted against the driver of the lorry bearing No.AP 03 U 1266 and hence, the insurer is not liable to pay any compensation. Learned counsel for the respondents 1 and 2/claimants on the other hand would contend that the police after investigation, identified the crime vehicle as the lorry bearing No.AP 03 U 1266 and also its driver and prosecuted him for the offence of rash and negligent driving and the same ended in conviction and hence, the insurer is liable to pay the compensation as awarded by the Tribunal. 9. It is not disputed that the accident occurred during night at about 11.30 p.m. FIR was registered on the basis of a complaint given by one Y. Veerareddy, who also went to the fields along with the deceased on that night and was watering crop while the deceased was sleeping. No doubt in the FIR, it is stated that number of lorry was not known. However, the police during the course of investigation identified the crime lorry and ascertained the particulars of the lorry and also its driver and filed charge sheet Ex.A.5. Ex.A.2 is the copy of the inquest report, Ex.A.3 is the copy of post-mortem certificate and Ex.A.4 is the MVI report. The records of the criminal case more particularly FIR Ex.A.1 and the charge sheet Ex.A.5 established that the lorry which was involved in the accident was one the lorry bearing No.AP 03 U 1266 and the driver of the said lorry was prosecuted. It is stated that the prosecution also ended in conviction. Thus the Tribunal has rightly relied upon Exs.A.1 to A.4 in holding that the accident occurred due to the rash and negligent driving of the lorry AP 03 U 1266. As against the said evidence available on record, there is no evidence placed by the appellant/insurer to the contra. In the absence of any such evidence to the contra, the claim of the respondents for compensation based on criminal Court record to prove the factum of the accident and the identity of the vehicle involved and identity of the driver, who was driving the said lorry at the time of the accident cannot be rejected on the basis of suggested probability that it was a case of hit and run. In fact, it is not the case of the appellant/insurer that the said lorry was not involved in the accident and no such plea is raised in their counter. According to the appellant/insurer, it is a case of hit and run, which necessarily implies that the identity of the lorry as the crime vehicle and identity of the driver was not disputed. When once the evidence on record prima-facie established that the vehicle was driven in a rash and negligent manner causing the accident, the contention of the appellant/insurer that it is a case of hit and run remains untenable. Under those circumstances, the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the lorry by its driver does not call for interference. 10. Regarding the quantum of compensation, the claimants originally claimed a sum of Rs.1,50,000/- and subsequently, they amended the application by seeking enhancement of the compensation of Rs.2,50,000/- and paid the deficit court fee for the balance amount of Rs.1,00,000/-. However, subsequent to the amendment, the claimants did not adduce further evidence. The Tribunal, therefore confines their claim to Rs.1,50,000/- as original claim, though the Tribunal found that the claimants are entitled for higher compensation. The Tribunal has taken monthly income of the deceased at Rs.3,000/- or Rs.36,000/- per annum and after deducting 1/3rd thereof towards personal expenses, his contribution to the family was estimated at Rs.24,000/- per annum and applied the multiplier 13.18 which is relevant for the age of the deceased and estimated the loss of dependency at Rs.3,16,320/-. There is no dispute regarding the multiplier applied and the income of the deceased taken by the Tribunal for estimating the loss of dependency. Admittedly, the deceased was aged only 20 years at the time of his death and was doing cultivation. In view of the matter, the loss of income taken at Rs.3,000/- per month by the Tribunal is considered just and reasonable. 11. Learned counsel for the appellant would submit that as the deceased was sleeping on the roadside, there was contributory negligence on his part as well. It is, however, nowhere pleaded in the counter nor is their any evidence during the enquiry in that regard. In the absence of any such contention or evidence, the said contention cannot be entertained at this stage. Even otherwise, though the claimants were found to be entitled for higher amount, over which they paid deficit court fee as well, still the Tribunal has restricted the compensation to the original claim of Rs.1,50,000/-. It is, therefore, considered that there are no valid or reasonable grounds to reduce the said amount of compensation on the ground of contributory negligence. In the circumstances, it is held that the amount awarded by the Tribunal is just and reasonable and the impugned award of the Tribunal does not call for any interference. 12. In the result, the appeal is dismissed. No order as to costs. _______________________ G.V.SEETHAPATHY, J Date: 26.10.2009 bss