THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CMA No. 2470 of 2000 ORDER : This appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 by the Andhra Pradesh State Road Transport Corporation, henceforth, referred to as `Corporation’, aggrieved by the quantum of compensation awarded by the Motor Accidents Claims Tribunal cum Addl. District Judge, Adilabad, in OP No. 71 of 1997. For the sake of convenience, the parties are referred to in the same array as they are referred to in the OP. The 1st claimant is the wife of the deceased Rajamouli @ Rajamogli Goud. The 6th claimant is the minor daughter of the deceased Rajamogli. Claimants 2 and 3 are the parents of the deceased while claimants 4 and 5 are the younger dependant brothers. The facts which are relevant are these : The deceased Rajamogli Goud was carrying on business in a cycle shop cum kirana shop. On 2.3.1996, the deceased has purchased some kirana provisions and some spare parts of cycles and boarded a tractor near I.B.Tandur bearing Registration No. AAR 7088. When the tractor reached near MVK-II Incline, an APSRTC bus of Adilabad depot bearing No. AP 9Z 374 from Rompalli village side came at a high speed and driven rashly and negligently too by its driver, dashed against the tractor and thus caused the accident. Due to the sudden impact, the tractor turned turtle and apart from the deceased Rajamogli, the tractor driver also died on the spot. As the accident had been caused wholly due to the rash and negligent driving of the driver of the APSRTC bus, the claimants have laid the claim seeking compensation in an amount of Rs.3 lakhs. It is asserted that the deceased Rajamogli was earning Rs.3000/- per month as his net income from the business. The 1st claimant – wife of the deceased was examined as PW1. Exs.A1 to A6 are got marked. Ex.A1 is the photo copy of the FIR in Cr.No. 8 of 1996 of PS Medaram. Ex.A2 is the copy of the inquest report. Ex.A3 is the copy of the post- mortem examination report. Ex.A4 is the vehicle check report of the bus involved in the accident by the Motor Vehicle Inspector. Ex.A5 is the copy of the charge sheet in CC No. 263 of 1996 on the file of the Judicial First Class Magistrate, Asifabad against the driver of the APSRTC bus. Ex.A6 is the certificate issued by the Secretary of the Gram Panchayat, Tiryani, vouching that the deceased was carrying on cycle shop cum kirana business in the village. None has been examined on behalf of the appellant corporation herein. Though the driver of the offending bus had been impleaded as 1st respondent to the OP, he remained ex parte. Though PW1 in her deposition described as to how the accident had occurred, but not much reliance has been placed on her deposition in that regard as she was not an eye witness to the accident. The court has placed reliance upon Ex.A1, the copy of the FIR, Exs.A2 and A3, the inquest report and the post mortem examination report and Ex.A4 the report of the Motor Vehicle Inspector who has undertaken the inspection of the vehicle which caused the accident and more importantly, Ex.A5, the charge-sheet laid against the 1st respondent – driver of the bus. Police have investigated the matter and the investigation has revealed that the bus has been driven very rashly and negligently by its driver and thus he is responsible for causing the accident. Hence the Tribunal held that the accident was caused by the bus. The finding of the Tribunal can be justified for the additional reason that the 1st respondent should have been examined by the corporation on its side. It had not examined any of its inspecting officials, either, who carried out investigation from the corporation side. Therefore, the material that is available with them and the best person who could have deposed about the manner in which the accident had occasioned, have been held back. Therefore, an adverse inference has got to be drawn against the corporation. It is, further reasonable to assume that the investigation which is bound to be carried out by the corporation into every fatal accident involving its buses, has also revealed to it that the accident had occasioned wholly due to the negligence of its driver and hence such a material is held back from being brought on record. Therefore, the finding of fact recorded by the Tribunal that the accident had occasioned wholly due to the rash and negligent driving of the driver of the RTC bus cannot be dislodged for want of any material to the contra. The question that has got to be examined is the contention canvassed by Smt.Rajini Reddy, learned Standing Counsel for the Corporation that the Tribunal should not have blamed the driver of the bus of the corporation alone as responsible and to have caused the accident. The learned Standing Counsel pleads that if two vehicles are involved in an accident it should be presumed that both are responsible for the accident and both would have contributed to the accident. In such a case, the amount of compensation should have been apportioned to the extent of contribution of negligence by the bus driver and the rest of the claim should have been dismissed for non joinder of the owner of the tractor and its insurance company. The learned Standing Counsel also placed reliance upon the judgments reported in Agnuru Jaya Ramulu v. Mohammed Afzal Miyan[1] of our court and Bijoy Kumar Dugar v. Bidyadhar Dutta[2] of the Supreme Court and Sasidharan v. Sukumaran[3], rendered by the Division Bench of Kerala High Court. Per contra, Sri V.Ravi Kiran Rao, learned counsel for the claimants/respondents submits that the appellant corporation has not pleaded that the accident had occasioned due to the contributory negligence on the part of the driver of the tractor and consequently there was no issue framed by the Tribunal and hence no evidence has been led in by the parties in that respect. Sri Ravi Kiran Rao, further contends that the aspect of contributory negligence has got to be specifically pleaded and proved with reference to the facts existing on the record of the case. Without collecting evidence or providing an opportunity for collection of such evidence, no attempt should be permitted to raise such a question at the appellate stage, for; a mixed question of fact and law cannot be decided in the absence of collection of facts. This apart learned counsel has pointed out that the theory of contributory negligence would perhaps arise only in cases where the accident had occasioned due to head-on collision of two vehicles coming in the opposite direction. Even in such cases, there can be material evidence to demonstrate that in spite of taking all necessary precautions by one of the two drivers and due to overlooking in equal measure the precautions to be taken by the opposite vehicle driver, that the accident could have occasioned. Such facts can be established by leading evidence. In such an event, the accident is still liable to be treated to have been caused wholly due to the negligence of only one driver and the theory of contributory negligence cannot be pressed into service notwithstanding involvement of a head on collision between two vehicles. Learned counsel has also drawn my attention to the judgments of the Supreme Court reported in Suresh yallappa Patil v. General Manager, KSRTC[4] a n d Kaushnuma Begum v. New India Assurance Company Limited[5] and contended that the award passed by the Motor Accidents Claims Tribunal is perfectly legitimate and does not call for any interference. Concept of contributory negligence is a well established legal principle. If two vehicles, which are proceeding on the same road in opposite directions, are involved in a head-on collision then both of them can be construed as to have contributed to the cause of the accident. Thus the drivers of those two vehicles become common tort feasers. If on the other hand, if one of the motor vehicles hits the other vehicle on its side, the possibility of contribution to the cause of accident wholly by one of them cannot be ruled out. Therefore, before a finding is returned that the drivers of both the vehicles, which are involved in the accident or not, have contributed to the cause of an accident, the necessary fact situation prevailing has got to be gathered. The extent of involvement of each vehicle in the accident has got to be ascertained. The scene of accident, which may have been recorded by any of the investigating agencies, ought to have been brought before the court by way of evidence. Based thereon, it would become possible for the court to consider the causative factors for the accident. As already noticed, the APSRTC – the appellant herein would have got conducted an investigation into the accident. But, no such report much less the scene of accident panchanama has been got marked by it as evidence. Therefore, the best possible evidence, apart from the version of the driver, has all been held back by the appellant corporation. Hence an adverse inference is liable to be drawn against it. It cannot therefore now plead that the Tribunal should have returned a finding that the accident had occasioned only due to the contributory negligence of drivers of both the vehicles. It’s a salutary principle that where a finding is dependant upon mixed questions of fact and law, then such a question cannot be allowed to be agitated for the first time at the appellate stage. Pure questions of law, which can be decided upon the established facts, which are already gathered on record, alone are permitted to be raised at any stage of the proceedings, the reason being no prejudice would be caused to the opposite party for its inability not to have led evidence to cover that particular contingency as well. No party can lead evidence in a case in anticipation of a future contingency. In the instant case, the evidence has not been gathered by the parties as no issue has been framed by the Motor Accidents Claims Tribunal in that regard. Without there being any issue to be tried, no evidence could be led. Therefore, the plea that the accident should have been treated to have been caused only by contribution by the drivers of both the vehicles cannot be allowed or permitted to be raised for the first time before this Court at the appellate stage. The plea that the theory of contributory negligence should have been applied by the Tribunal, pre-supposes the acknowledgement of contribution of negligence, to a certain degree, by the driver of the bus belonging to the appellant corporation and when once it is conceded that there is negligence of the driver of the bus belonging to the corporation, whatever be the extent, and in the absence of evidence of contribution of negligence by the driver of the tractor, the finding recorded by the Tribunal that the accident has been caused wholly due to the negligence of the driver of the bus cannot be doubted or faulted at all. Hence, the finding recorded by the Tribunal in that respect, no exception can be drawn thereto. Hence, the cases relie dupon by the learned Standing Counsel of the Corporation are of no avail. When it came to the quantification of the compensation, the Tribunal has placed reliance upon Ex.A3, the post mortem examination where the age of the deceased is noted as 25 years though PW1 pleaded that the deceased was only 24 years. Even otherwise it makes no difference for the reason that the age group of 20 to 25 years is treated as one compact block in the II Schedule of the Motor Vehicles Act for the purpose of uniform application of the multiplier. Hence, the Tribunal has taken the age of the deceased as 25 years. When it came to the question of income of the deceased, the Tribunal has taken it as Rs.3000/- per month. It had placed reliance upon Ex.A6 – certificate issued by the Secretary of the Gram Panchayat setting out that the deceased was carrying on cycle shop cum kirana business in the village. Therefore, on that count also, no exception can be taken to the quantum of compensation awarded by the Tribunal. The Tribunal has awarded a sum of Rs.15,000/- towards loss of consortium to the 1st petitioner. A sum of Rs.10,000/- towards loss of estate and loss of expectancy of life and a sum of Rs.3,000/- towards funeral expenses. All these amounts of compensation have been awarded taking into consideration the principle enunciated by the Supreme Court in Susamma Thomas case[6]. Therefore, no exception need to be drawn thereto. For these reasons, there are no merits in the appeal and it is accordingly dismissed. But, however, without costs. ------------------------------------------ -- NOOTY RAMAMOHANA RAO,J Knk 18-12-2009 [1] 2006 ACJ 855 [2] 2006 ACJ 1058 [3] 2006 ACJ 945 [4] (2002) 8 SCC 406 [5] 2001(1) ALD 95 (SC) [6] 1994(1) ALT 1 (SC)