THE HON’BLE SRI JUSTICE V.ESWARAIAH M.A.C.M.A.No.130 of 2007 Dt.23.7.2010 Between: Kojjapuram Gattavva and others ..Appellants And A.Mallaiah and another ..Respondents THE HON’BLE SRI JUSTICE V.ESWARAIAH M.A.C.M.A.No.130 of 2007 JUDGMENT: The appellants are the claimants, who filed O.P.No.717 of 2005 on the file of Motor Vehicles Accidents Claims Tribunal-cum-the Principal District Judge, Medak at Sangareddy, under Section 166 of the M.V.Act, claiming compensation of Rs.4,00,000/- in all respects, contending that on 06.09.2003, the driver of the Tractor and Trailer bearing Nos.AP-23T-2330 and AP-25T-1084 parked the said vehicle on the road in the limits of Ramayampet village near Vajra Stone Crusher on the National Highway No.7, without any indicators in a negligent manner, which caused obstruction to the road users and at about 2.00 AM, one Kompally Ravinder Reddy drove his Hero Honda Splendor Motor cycle bearing No.AP 23 D 3232 along with the deceased as pillion rider and dashed the said Tractor and Trailer, due to which, the rider as well as the pillion rider of the motor cycle died on the spot. The accident occurred due to negligent parking of the said Tractor and Trailer in the middle of the road without any indicators by its driver. As such, the owner and insurer are jointly and severally liable to pay compensation. It is stated that police, Ramayampet, registered a case in Crime No.69 of 2003 for the offence punishable under Section 304-A IPC and the charge sheet was also filed. Respondent No.2- Insurance Company filed counter resisting the claim of the claimants. The Tribunal, after considering the oral and documentary evidence, arrived at a compensation of Rs.4,00,000/- and fixed the liability of the respondents at 75% and of the deceased at 25% and, accordingly, deducted 25% out of Rs.4,00,000/- towards the contributory negligence of the deceased and awarded a compensation amount of Rs.3,00,000/-. Aggrieved by the same, the claimants filed the present appeal contending that deduction of 25% out of the total compensation of Rs.4,00,000/- is illegal and erroneous. It is stated that there was no negligence on the part of the driver of the motor cycle and according to the evidence, the Tractor and Trailer was parked in the middle of the road and, therefore, the Tribunal ought not to have deducted 25% towards contributory negligence of the deceased. With regard to the total quantum of compensation, there is no dispute. Heard both sides and perused the material available on record. The first claimant is the wife and claimant Nos.2 and 3 are the children and claimant Nos.4 and 5 are the parents of the deceased. PW.1, who is the wife of the deceased, stated about the earnings of the deceased and also about the accident and her evidence is only hearsay evidence regarding the manner of the accident. PW.2 is the relative of the rider of the motor cycle and he is the person who gave report to the police, based on which, FIR was registered on the file of Ramayampet Police Station for the offence punishable under Section 304-A IPC. According to him, on 06.09.2003, the deceased Kompally Ravinder Reddy was proceedings before his motor cycle, along with Yadaiah as pillion rider, from Ramayampet to Hyderabad and after crossing microwave tower in between Ramayampet and Chegunta at about 2.00 AM, the Tractor and Trailer loaded with sand was parked in the middle of the road without any indicators and no stones or tree branches were placed to identify the Tractor and Trailer and no person was present at that place. The deceased Ravinder Reddy was proceeding in a moderate speed and he saw the said Ravinder Reddy dashing the Tractor and Trailer from behind and falling down. In the cross-examination, it is admitted by P.W.2 that he has not mentioned in Ex.A.1-FIR that the Tractor and Trailer was parked in the middle of the road, but he has mentioned that it was parked on the road. He did not mention in Ex.A1 that any signals like stones, branches of trees were not placed to identify that the Tractor and Trailer was parked. The suggestion that merely because he was closely related to the deceased Ravinder Reddy he is deposing false is denied by P.W.2. RW.1- Senior Assistant in United India Insurance Company Limited, stated that as per the complaint and charge sheet the deceased was going on a motor cycle and dashed the Tractor and Trailer from back side and the tractor was stationed on the left side of the road. As per the complaint and charge sheet, the accident occurred due to dash by the rider of the motor cycle to the crime vehicle from back side. He also stated that there is no fault on the part of the crime vehicle, as the tractor was stationed on the left side of the road and there is a contributory negligence on the part of the rider of the motor cycle, as he dashed the crime vehicle from back side. According to the claimants, the crime vehicle was stationed in the middle of the road. Though a sketch of scene of offence was drawn, no such sketch or map was filed before the Court below. Even in the FIR, there is no indication that the crime vehicle was stationed in the middle of the road and P.W.2, in his cross-examination, admitted that in the F.I.R., he did not mention that the crime vehicle was parked in the middle of the road. According to the evidence of RW.1, the vehicle was stationed on the left side of the road. Therefore, there was a contributory negligence on the part of the rider of the motor cycle. Merely because the FIR was registered against the driver of the Tractor and Trailer alone, it cannot be said that there was no negligence on the part of the rider of the motor cycle. Having regard to the facts and circumstances of the case, I am of the opinion that the Court below had rightly deducted 25% of the total compensation towards negligence on the part of the rider of the motorcycle. Therefore, I do not see any reason to interfere with the impugned order passed by the Court below, so far as the contributory negligence on the part of the deceased is concerned. In so far as the quantum of compensation awarded by the court below is concerned, the Tribunal fixed his daily wages at Rs.100/- per day and Rs.3000/- per month and after deducting 1/3rd of the earnings towards personal and living expenses, the contribution to his family works out to Rs.2,000/- per month and Rs.24,000/- per year. The age of the deceased was taken as 30 years and the multiplier applied was 16. But, as per the judgment of the Apex Court in Sarla Verma v. Delhi Transport Corporation[1] the multiplier applicable to the age of the deceased is 17. In so far as the deduction of the income is concerned, the deceased is survived by his wife, two sons and two parents i.e., five dependents and if there are five family members, the deduction shall be 1/4th. Therefore, if 1/4th is deducted towards his personal and living expenses, it would come to Rs.27,000/- per annum and if 17 multiplier is applied it would come to Rs.4,59,000/-. Besides this, the first claimant being the wife of the deceased is entitled to Rs.15,000/- towards loss of consortium and the claimants are further entitled to Rs.15,000/- towards loss of estate. However, since the claim of the claimants is only to a tune of Rs.4,00,000/-, the amount of compensation awarded by this Court is restricted to Rs.4,00,000/- only. Out of the said amount, both the respondents are jointly and severally liable to pay only 75% which comes to Rs.3,00,000/-. The claimants are entitled to interest at the rate of 7.5% per annum as awarded by the court below. The order of the Tribunal is modified accordingly. Subject to the modification to the extent indicated above, this appeal is disposed of. No order as to costs. _____________ V.ESWARAIAH, J 23-07-2010 PNV/kpr [1] 2009 ACJ 1298