IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE TWENTIETH (20TH) DAY OF SEPTEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.2031 of 2007 & MA CMA No.551 of 2008 MA CMA No.2031 of 2007: Between: National Insurance Company Ltd., Visakhapatnam … Appellant And: Naupada Surya Prabha & others … Respondents MA CMA No.551 of 2008: Between: Naupada Surya Prabha & others … Appellant And: JMJ English Medium School, Srikakulam & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.2031 of 2007 & MA CMA No.551 of 2008 COMMON JUDGMENT: These two appeals arise out of the order dated 07.10.2006 in MV OP No.39 of 2003 on the file of the MACT cum II Additional District Judge (FTC), Srikakulam, wherein the said claim application filed by the appellants in MA CMA No.551 of 2008, was allowed in part, awarding compensation of Rs.2,74,000/- with interest at 7.5% per annum. 2. MA CMA No.551 of 208 is filed by the appellants- claimants, seeking enhancement of the compensation, whereas MA CMA No.2031 of 2007 is filed by the insurer assailing the award. As both the appeals arise out of the same order, between the same parties, both matters are heard together and are being disposed of by this common judgment. Heard both sides. Perused the record. 3. The claimants filed petition under Section 166 of the Motor Vehicles Act, seeking compensation of Rs.3 lakhs for the death of the deceased Rajendrababu, who died in a motor vehicle accident that occurred on 17.09.2001. The first claimant is the wife and claimants 2 to 4 are the children of the deceased. According to the claimants, on that day, the deceased was going on his Hero Honda motor cycle bearing No.AP 30 5472 along left side of the road and the bus bearing No.AP 30 T 6790 coming in the opposite direction, driven in a rash and negligent manner by its driver, dashed against the motor cycle, as a result of which, the deceased sustained multiple injuries and was shifted to Government Hospital, Etcherla, where he died. According to the claimants, the deceased was a carpenter and was earning Rs.5000/- per month and was aged 48 years by the date of death. 4. The owner of the vehicle and insurer filed separate counters, opposing the claim and denying their liability to pay the compensation. 5. During enquiry, PWs.1 and 2 were examined and Exs.A.1 to A.5 were marked on behalf of the claimants and no oral or documentary evidence was adduced on behalf of the respondents in the OP. 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 bus bearing No.AP 30 T 6790 by its driver. The Tribunal further held that there was contributory negligence on the part of the deceased and that the claimants though entitled for a total compensation of Rs.4,68,000/-, the same was reduced to 50% i.e., Rs.2,74,000/-, for which the award was passed with interest at 7.5% per annum. Aggrieved by the award, the claimants and also insurer filed the present appeals. 6. Learned counsel for the insurer would contend that the Tribunal erred in taking the income of the deceased at Rs.5000/- per month without any basis and in deducting Rs.2000/- towards personal expenses. The learned counsel for the claimants would contend that the Tribunal erred in holding that the deceased also contributed to the accident by his negligence to the extent of 50%. 7. The case of the claimants is that while the deceased was going along left side margin of the road, the bus driven in a rash and negligent manner came in the opposite direction and dashed against the deceased. In support of their contention, the claimants examined PW.2, an eye witness to the occurrence, who also testified that when the deceased was going slowly along left side of the road margin on the motor cycle, the bus came at high speed in the opposite direction and dashed against the deceased. The testimony of PW.2 is not discredited in any manner and he was not cross-examined on this aspect at all. The claimants also filed Ex.A.1 CC of FIR, Ex.A.4 CC of charge sheet, which also show that the accident occurred only on account of the rash and negligent driving of the bus by its driver. There is absolutely nothing in the evidence to indicate that the deceased has contributed to the accident by his own negligence in any manner. The owner and the insurer did not examine the driver of the bus to show that the deceased was also negligent in driving the motor cycle and his negligence also contributed to the accident. In the absence of any such evidence and in the light of the oral and documentary evidence adduced by the claimants, it must be held that the accident occurred solely on account of the rash and negligent driving of the bus by its driver. 8. Learned counsel for the insurer relied upon the decision of the apex Court in ‘APSRTC v. K.Hemalatha[1]’ wherein on the basis of the evidence available in that case, it was held that there was contributory negligence on the part of the deceased therein. In the present case, there is absolutely no such evidence forthcoming. Further it is not the case of head on collision that has occurred in the middle of the road, to draw inference of possibility of the deceased also contributing to the accident by his own negligence. The evidence on record clearly established that while the deceased was going on a motor cycle along left side of the road, the bus coming in the opposite direction came in a rash and negligent manner and dashed against the motor cycle. The impugned award passed by the Tribunal does not disclose any reasons for recording of finding that there was contributory negligence on the part of the deceased to the extent of 50%, except observing that the apex Court has held in 2006 SAR (Civil) 311, that as a prudent man, the deceased ought to have taken due care and caution to avoid head on collision when he had already seen the bus from a long distance coming from the opposite direction. The above case was one of head on collision between two vehicles, which is not the situation in the present case. The finding of the Tribunal attributing contributory negligence to the deceased is therefore unsustainable as the same is not based on the evidence on record. 9. Having regard to the fact that the deceased was a skilled worker, the amount of Rs.5000/- per month taken into consideration as income of the deceased cannot be considered to be excessive or unreasonable. As per the decision of the apex Court in Sarla Varma’s case [(2009)6 SCC 121], 1/4th of the income is to be deducted towards personal expenses, as the number of dependents left behind by the deceased is ‘4’. The contribution of the deceased to the family would therefore come to Rs.45000/- per annum (Rs.5000/- - 1/4th Rs.1250/- towards personal expenses = Rs.3750/- per month x 12). The evidence on record also shows that the deceased was aged 48 years and the relevant multiplier as per the above decision is ‘13’. The loss of dependency therefore works to (Rs.45,000/- x 13) Rs.5,85,000/-. The claimants have restricted their claim only to Rs.3,00,000/-. The claimants are therefore held entitled for the said amount of Rs.3,00,000/- as claimed by them, however with interest at 6% per annum from the date of petition, till the date of realization, in view of the above decision. The impugned award is modified accordingly. 10. In the result, MA CMA No.551 of 2008 is allowed to the extent above and MA CMA No.2031 of 2007 is dismissed. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 20.09.2011 bss [1] AIR 2008 SC 2851