IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE SEVENTH [7TH] DAY OF JULY TWO THOUSAND AND TEN Present: THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.151 of 2008 Between: Smt. M Laxmi & others … Appellant And: K. Venkataratnam & others … Respondents THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.151 of 2008 JUDGMENT: This appeal is directed against the order dated 29.10.2007 in MV OP No.400 of 2006 on the file of the Motor Accidents Claims Tribunal cum I Additional District Judge, Rangareddy district, wherein, the claim of the appellants herein was allowed in part, awarding compensation of Rs.1,84,000/- with interest at 7.5% per annum from the date of petition. 2. Heard the learned counsel for the appellants and the learned counsel for the 2nd respondent-insurer. Perused the record. 3. The appellants herein filed claim application seeking compensation of Rs.4,00,000/- on account of death of the deceased M.Mallesh in a motor vehicle accident that occurred on 09.04.2006. The first claimant is the wife, claimants 2 and 3 are the children, claimants 4 and 5 are the parents and 6th claimant is the younger brother of the deceased. According to them, on that day, the deceased was proceeding on a scooter bearing No.AP 28 AB 2872 and that a lorry bearing No.AP 02 V 7284 was parked in the middle of the road without any precautionary measures and without indicating parking lights, near Pattu factory on the road leading to Tallapally village and that the scooter dashed against the said lorry on the back side, resulting serious injuries to the deceased, who died while being shifted to the hospital. A case in Cr.No.101 of 2006 was registered by Dundigal Police. According to the claimants, the deceased was aged 26 years and was earning Rs.5,000/- per month from milk vending business and agriculture. 4. The first respondent-owner of the lorry remained ex-parte. The 2nd respondent-insurer filed counter before the Tribunal opposing the claim and denying their liability to pay the compensation. 5. On the strength of the pleadings, the Tribunal framed the following issues for trial. (1) Whether the deceased namely M Mallesh died in a motor vehicle accident on 09.04.2006 due to rash and negligent parking of lorry bearing No.AP 02 U 7284 by its driver? (2) What was the age and income of the deceased? (3) Whether the petitioners are entitled to claim compensation and if so how much amount and from which of the respondents? (4) To what extent? 6. During enquiry, PWs.1 to 3 were examined and Exs.A.1 to A.8 were marked on behalf of the claimants. On behalf of the 2nd respondent, RW.1 was examined and Ex.B.1 copy of the policy was marked. On a consideration of the evidence available on record, the Tribunal held that there is contributory negligence on the part of both the driver of the lorry and the deceased who was riding the scooter and apportioned the liability equally between them. The Tribunal further held that the claimants are entitled for a total compensation of Rs.3,36,006/- but awarded 50% thereof in a sum of Rs.1,84,003/- with interest at 7.5% per annum from the date of petition. Aggrieved by the same, the present appeal is filed by the claimants seeking enhancement. 7. Learned counsel for the appellants-claimants contended that the lorry driver was entirely at fault, as the lorry was parked in the middle of the road without taking any precautionary measures to prevent possible accident and so, the apportionment of liability to the extent of 50% on the deceased is unwarranted. Learned counsel for the 2nd respondent-insurer on the other hand would contend that that the deceased was also supposed to take necessary care and caution while overtaking the lorry and his failure to exercise necessary care and caution alone resulted in the accident. 8. It is not disputed that the lorry was parked in the middle of the road without parking lights or any other indications and any precautionary measures were also not taken by the driver of the lorry to prevent the accident. After due investigation, police also filed a charge sheet against the driver of the lorry. The Tribunal on appreciation of the evidence available on record held that the lorry was parked in the middle of the road, without taking any precautionary measures. The said finding is not challenged by the 2nd respondent-insurer, as no appeal is filed by them. The Tribunal further held that the deceased has also contributed for the accident, as he failed to take necessary care and caution while overtaking the lorry. It is to be noted that it was admittedly a dark night and the focus of the headlights of the scooter cannot stretch far and by the time the deceased noticed the parked lorry, it is not possible for him to avert the accident, as there was no sufficient time. Nevertheless, the deceased was supposed to go by the left side of the road and when the lorry is parked in the middle of the road, he would have certainly avoided hitting the lorry if he had kept himself to the extreme left side of the road. Further had the deceased exercised necessary care and caution while riding the scooter on a dark night, he would have averted the accident. However, the negligence on the part of the deceased is relatively lower in its extent and cannot be equated with that of the lorry driver, who had parked the lorry without taking any precautionary measures or switching on the parking lights. The relative negligence on the part of the driver of the lorry is certainly heavier when compared to that of the deceased, who was riding the scooter. The equal apportionment of the liability by the Tribunal both on the driver of the lorry and the deceased is, therefore, not warranted. In the facts and circumstances of the case, it is considered just and reasonable to fasten the liability on the deceased only to the extent of 20% and on the driver of the lorry to the extent of 80%. 9. The Tribunal has taken the income of the deceased at Rs.2400/- per month and the multiplier of ‘18’ applied for his age, is considered to be just and reasonable. After deducting 1/3rd towards personal expenses, the contribution of the deceased to the family is estimated by the Tribunal at Rs.18,667/- and applying the multiplier 18, the loss of dependency works to Rs.3,36,006/-. The Tribunal also awarded a sum of Rs.15,000/- towards loss of consortium to the first claimant-wife, Rs.15,000/- towards loss of estate and Rs.2,000/- towards funeral expenses, which are considered to be just and reasonable. Thus the total amount of compensation works out to Rs.3,68,006/-, out of which the claimants are entitled only for 80% thereof, which comes to Rs.2,94,404.80, rounded to Rs.2,94,405/-. 10. In the circumstances, the impugned award is modified accordingly, granting a total compensation of Rs.2,94,405/- with interest at 7.5% per annum from the date of petition. 11. In the result, the appeal is allowed in part to the extent stated above. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 07.07.2010 bss