IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINETEENTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.632 of 2004 Between: V.Narayanamma and others ..... APPELLANT(S) AND Director General of Police, State of A.P., Saifabad, Hyderabad and others .....RESPONDENT(S) THE HON'BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.632 of 2004 ORDER: Appellants, who are mother, father and sister of Venkatesh (hereinafter referred to as – ‘the deceased’), filed claim petition in O.P.No.228 of 2001 on the file of the VII Additional Chief Judge- cum-II Member Tribunal for Disciplinary Proceedings, City Civil Court, Hyderabad, seeking compensation of Rs.4,00,000/- under Sections 140 and 166 of the Motor Vehicles Act, 1988, for the death of the deceased in a motor vehicle accident, alleging that on 14.11.2000 at about 08.00 a.m., while the deceased, as a pillion rider, was proceeding towards Lingampally village, Doma Mandal, Ranga Reddy District, on a Hero Honda motorcycle, being driven by his friend by name Sri J.Ram Mohan Sharma, a police van, being driven by 4th respondent and belonging to the respondents, came in their opposite direction at a high speed and in a rash and negligent manner dashed the motor cycle due to which the driver of Hero Honda motorcycle died on the spot and the deceased succumbed to injuries in Osmania General Hospital where he was admitted for treatment. It is claimed that the deceased was a carpenter and earning Rs.5,000/- per month. Subsequent to filing of the O.P., the 2nd appellant i.e. the father of the deceased died. Third respondent filed counter denying the averments made in the claim petition. The Tribunal framed the following issues for trial. (1) Whether the accident occurred on account of rash and negligent driving of the police van bearing No.AP-9P-2653 by its driver? (2) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom? (3) To what relief? On behalf of appellants, P.Ws.1 to 3 were examined and Exs.A.1 to A.12 were marked. On behalf of respondents, R.Ws.1 and 2 were examined but no document was marked. Considering the material on record, the Tribunal, holding that the accident occurred due to the contributory negligence of the driver of the motorcycle and the driver of the police van, awarded compensation of Rs.90,000/- to the 1st appellant only with interest at 6% per annum from the date of petition till the date of realization. Dissatisfied with the compensation awarded, the present appeal is by the claimants. 2. The learned counsel for the appellants vehemently contended that the Tribunal has committed error in applying the contributory theory despite the cogent evidence of P.W.3 that though the driver of motorcycle took the motorcycle to the extreme left side of the road, the police van came to the extreme right side of the road in a rash and negligent manner and dashed against the motorcycle and that the compensation awarded by the Tribunal is meager to a bereaved family. 3. Per contra, the learned Government Pleader appearing for the respondents contended that the Tribunal ought not to have awarded any compensation much less by applying the theory of contributory negligence in view of the evidence of R.W.1, and, however, the compensation awarded is more than what the 1st appellant is entitled to and there is no need to enhance the same. 4. Now the points that arises for consideration are as follows: (1) Whether the theory of contributory negligence is applicable to the case on hand and, if so, to what extent? (2) Whether the compensation awarded to the 1st appellant is just and, if not, to what compensation she is entitled? Point No.1: 5. A perusal of the material available on record makes it clear that the Tribunal came to conclusion that the accident occurred due to the negligence of the driver of motorcycle as well as the driver of police van and, by applying the theory of contributory negligence, fixed equal liability on both of them for payment of compensation to the 1st appellant and, inasmuch as the driver of the motorcycle died in the same accident, the 1st appellant was held to be eligible to only fifty per cent of the compensation i.e. Rs.90,000/- from the respondents. P.Ws.1 and 2 are not eyewitnesses to the occurrence of accident. R.W.2, the 4th respondent, who drove the police van at the time of accident, deposed that there was no negligence on his part and the driver of motorcycle was responsible for the accident. The evidence of R.W.2 can be treated as self-interested testimony. So, there remains the evidence of P.W.3 and R.W.1. R.W.1, who claims to be sitting by the side of R.W.2 while driving the police van, deposed that there was no negligence on the part of R.W.2 but the driver of motorcycle contributed to the accident. The evidence of R.W.1 can be treated as interested testimony and viewed with suspicion, as he happened to be a colleague of R.W.2. Coming to the evidence of P.W.3, an independent witness, who deposed that though the driver of motorcycle took the same to the extreme left side of the road, the police van came to the extreme right side of the road in a rash and negligent manner and dashed the motorcycle. In his cross-examination, P.W.3 deposed that he was behind the police van at the time of accident and the motorcycle was coming in opposite direction to the police van. The report of the Motor Vehicles Inspector (Ex.A.8) who inspected the police van shows that there were three damages to the police van viz., (i) right head light broken; (ii) front right side corner body damaged; and (iii) right end front bumper bent. The sketch of scene of offence (Ex.A.9) shows that the accident took place on one side of the road when both vehicles are opposite to each other. Though P.W.3 cannot have an opportunity to observe as to who was negligent and responsible for the accident, his evidence need not be completely brushed aside and it is crystal clear from the evidence on record that R.W.1 came to the extreme right side of the road. If any one of the drivers of the vehicles involved in the accident was careful he could have averted the accident. In these circumstances, the theory of contributory negligence is applicable to the case on hand. But, in the facts and circumstances of the case, the driver of the motorcycle can be attributed with 25% negligence or contributory negligence and R.W.1 can be attributed with 75% negligence. Point No.2: 6. Coming to the compensation aspect, the Tribunal took the loss of dependency to the 1st appellant as Rs.12,000/- per annum after deducting one-third towards personal living expenses and, taking the age of mother of the deceased, applied the multiplier ‘15’. The evidence of P.Ws.1 and 3 coupled with Ex.A.10 salary certificate shows that the deceased was earning Rs.5,000/- per month. Though there is nothing to disbelieve the said evidence, the Tribunal took the earnings of the deceased at a much lesser rate. Taking into consideration the circumstances, I take the monthly earnings of the deceased at Rs.4,000/- and since he was a bachelor, half of the same has to be deducted towards personal living expenses. Therefore, the annual loss of dependency would come to Rs.2,000/- x 12 = Rs.24,000/-. Since this is a claim under Section 166 of the Motor Vehicles Act, 1988, as per the judgment of the Apex Court in SARLA VERMA vs. DELHI TRANSPORT CORPORATION[1], the appropriate multiplier applicable for the age of mother of the deceased i.e. 45 years is ‘14’. So, the loss of dependency would come to Rs.24,000/- x 14 = 3,36,000/-. I am also inclined to grant Rs.10,000/- towards loss of estate. 7. So, the 1st appellant is entitled to Rs.3,36,000/- towards loss of dependency + Rs.10,000/- towards loss of estate i.e. a total compensation of Rs.3,46,000/-. 8. Since the driver of the motor cycle who also died in the same accident is attributed with 25% negligence, the 1st appellant is entitled to only 75% of the compensation i.e. Rs.3,46,000/- x 75% = Rs.2,59,500/- from the respondents. 9. Therefore, the appeal is allowed-in-part. The award of the Tribunal is modified and an award is passed for Rs.2,59,500/- with proportionate costs before the Tribunal payable by the respondents with interest at 6% per annum from the date of the petition till the date of realization. The parties shall bear their own costs in this appeal. ___________________________ GHULAM MOHAMMED, J. 19th August 2010 CVRK [1] AIR 2009 SUPREME COURT 3104