IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRTIETH OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A. NO.2712 OF 2008 AND M.A.C.M.A. NO.769 OF 2009 BETWEEN IN MACMA No.2712 OF 2008 : Smt B.Rajya Laxmi @ Laxmi and others. .... APPELLANTS AND Sheri Narsimha Reddy and another … RESPONDENTS BETWEEN IN MACMA No.769 OF 2009: United India Insurance Company Ltd. … APPELLANT AND B.Rajya Laxmi @ Laxmi and others. … RESPONDENTS THE HON'BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A. NO.2712 OF 2008 AND M.A.C.M.A. NO.769 OF 2009 COMMON JUDGMENT: These two appeals arises out of the same award in M.V.O.P.No.116 of 2005 dated 27.09.2006 on the file of Chairman Motor Vehicle Accident Claims Tribunal-cum-the Principal District Judge, Medak at Sangareddy. 2. M.A.C.M.A.No.769 of 2009 has been filed by the Insurance Company, challenging the award to the extent that it attached liability on it for a sum of Rs.3,90,000/- with interest at 7.5% per annum as compensation granted in favour of respondents 1 to 5 (claimants). M.A.C.M.A.No.2712 of 2008 has been filed by the said claimants for enhancement of compensation. 3. Both the appeals are therefore clubbed and being disposed of by this common Judgment. 4. In this appeal the parties hereinafter will be referred to as claimants and the insurance company for the sake of convenience. 5. The claimants filed the M.V.O.P. under Section 166 of the Motor Vehicles Act, 1988 (for short “Act”) seeking compensation of a sum of Rs.5,00,000/- on account of death of the deceased, Sadanandam Goud, in the road accident that occurred on 27.12.2004 at about 11.00 P.M. Claimant No.1 is the wife; claimant Nos.2 and 3 are children; claimant No.4 is the mother and claimant No.5 is the father of the deceased. 6. Claim Petition was filed stating that the deceased was doing milk business. He along with his brother-in-law, G.Rama Goud, after supplying milk to a Dhaba hotel at Almaipet village on 27.12.2004 was retuning on his scooter. A tractor-trailer bearing registration Nos.AP- 23-C-7420 and AP-23-C-7421 belonging to one Sheri Narsimha Reddy, loaded with sugarcane which was proceeding in the same direction was abandoned in the middle of the road near Baswani Vagu (rivulet). The driver of the tractor did not take any precautions indicating the presence of the tractor and trailer on the road. The abandoned vehicle was not visible due to the focus of the lights coming in the opposite direction, the deceased hit the said vehicle from the behind, on account of which he received grievous injuries along with the pillion rider and later succumbed to injuries. A case was registered in Crime No.71 of 2004 for the offences punishable under Sections 304-A and 337 of Indian Penal Code, 1860, against the driver of the tractor, namely Andole Adivaiah. Alleging that on account of negligent act of the driver of the offending vehicle the deceased died, the claimants filed the M.V.O.P. and sought for compensation. 7. The owner of the vehicle remained ex parte. Insurance Company obtained permission under Section 107 of the Act and contested the claim. 8. In the counter, the Insurance Company took a stand that the accident occurred only due to the rash and negligent driving of the driver of the scooter and therefore, it was necessary to remand and decide the issue whether the alleged accident occurred due to his negligence or whether there was any contributory negligence on the part of the drivers of both the vehicles. It was also stated that the Scooter was being driven by the deceased at very high speed and he lost control causing the alleged accident. The Insurance Company denied that the tractor and trailer was abandoned in the middle of the road without any indications and also denied that there was any negligence on the part of the driver of the offending vehicle. The income of the deceased was also disputed. 9. On the basis of the pleadings, the Tribunal formulated the issues as follows: “1) Whether the accident occurred due to rash and negligent driving of the driver of crime vehicle? 2) What is the just compensation petitioners are entitled if so how much quantum? 3) To what relief ?” 10. Claimant No.1 examined herself as P.W.1 and examined one G.Rama Goud as P.W.2(pillion rider) and got marked Exs.A.1 to A.7 on behalf of the claimants. The Insurance Company did not examine any witness on its behalf, but marked Ex.B.l-Insurance policy. 11. The Tribunal based on the evidence of P.W.2, who was the pillion rider (eye witness) and also based on Ex.A.1-First Information Report held that rash and negligence driving on the part of the driver of the offending vehicle was established. As regards the quantum of compensation, the Tribunal taking into consideration Rs.3000/- per month as the income of the deceased, deducting 1/3rd from out of it, fixed monthly contribution to the family at Rs.2000/- per month and awarded Rs.3,60,000/- towards future loss of earnings by applying multiplier ‘15’. In addition Rs.15,000/- was awarded towards loss of consortium and another Rs.15,000/- was awarded towards loss of estate. In all the Tribunal awarded Rs.3,90,000/-, as mentioned above. The Insurance Company has filed the appeal to the extent the award has fastened on it and the claimants have filed the appeal seeking enhancement of compensation. 12. Heard both sides. 13. Learned counsel for the Insurance Company would contend that the accident was caused not solely due to the negligence on the part of the driver of the offending vehicle. He would submit that the deceased who was driving the scooter was also responsible for the accident. He would contend that if the deceased was diligent enough by driving the vehicle on the left side of the road, he would have avoided the incident. Therefore, the deceased also contributed to the accident and the Tribunal ought to have apportioned and fastened liability only to the extent of 50%. 14. On the other hand, the learned counsel appearing for the claimants would submit that the accident occurred solely on account of negligence on the part of the driver of the offending vehicle. From the evidence it is clear that the deceased was no way responsible for the incident. On the question of compensation, the learned counsel for the claimants would contend that even on the basis of income as fixed by the Tribunal, the claimants are entitled for more compensation, if right multiplier had been applied. The learned counsel for the insurance company would submit that the compensation was rightly granted and the same does not require any enhancement. In view of the aforesaid rival contentions the points for consideration are: 1) Whether the accident occurred due to rash and negligent driving of the tractor and trailer or; 2) Whether accident occurred due to rash and negligent driving of both the tractor and trailer and the Scooter(deceased); and 3) Whether the claimants are entitled for enhancement of compensation and if so to what amount ? 15. ISSUES NO.1 and 2: As noted above, the claimants have taken a stand in the claim petition that the offending tractor was abandoned on the middle of the road and no precautions were indicated regarding the presence of the vehicle. Since the deceased was proceeding in the same direction, the abandoned vehicle was not visible due to the flash of lights of vehicles coming in the opposite direction. 16. The Insurance Company took a stand in its counter that the deceased was driving the Scooter at a very high speed and he lost control over the vehicle, thus, contributed to the incident. It may be mentioned at this stage that though the insurance company took a stand that the deceased also was negligent, it did not examine any witness nor adduced any other evidence to support the said contention. 17. On the other hand, the claimants examined P.W.2, who was an eye witness, being pillion rider, along with the deceased on the date of incident. P.W.2 in his evidence deposed that he and the deceased delivered milk cans in a hotel at Almaipet Village which is situated on the road leading from Sangareddy to Jogipet. While returning to Thaddanpally near Baswani Vagu there was a tractor with trailer loaded with sugarcane parked on the middle of the road without taking any precautionary measures. The driver of the scooter could not see the vehicle due to the focus of the lights of the vehicles coming in the opposite direction and dashed against the tractor from behind. He deposed that both received injuries and the driver of the scooter died due to the injuries. He stated that the accident occurred due to the negligence on the part of the driver of the tractor in parking the tractor with trailer on the middle of the road without taking any precautions. In the cross-examination by the Insurance Company he denied the suggestion that the accident occurred due to rash and negligent driving of the driver of the tractor and that he could not control the scooter and dashed the tractor from behind. He also denied the suggestion that due to the negligence of the deceased himself the accident occurred. Ex.A.1 is the Certified copy of First Information Report, which was registered on the information given by one Peddapuram Nagender Goud, who is the brother of the deceased and in the said report it is stated that on 27.12.2004 at about 11.00 P.M. his brother (deceased) and another person by name G.Rama Goud went to Almaipet Village and after delivering milk cans, while returning dashed against the tractor which was abandoned on the road without any precaution and in the said incident, the deceased died. The complaint was registered under Sections 304-A and 337 of I.P.C. The said facts were also stated in Ex.A.2 certified copy of inquest panchanama. Ex.A.4 is the certified copy of scene of offence which was inspected by the mediators, namely B.Ramakrishnaiah and Shaik Saleem. The said mediators visited the scene of offence on 28.12.2000 at 11.00 A.M. and they stated that the tractor-trailer was present at the scene of offence facing towards Sangareddy. It appeared that the scooter dashed the stationed tractor from behind. It also appeared that the incident occurred due to negligence of driver of the tractor. The tractor and the scooter were on the left side of the road. Ex.A.5 is the report of the Motor Vehicle Inspector. While noting the scene of offence, the Motor Vehicle Inspector observed that the accident occurred was not due to any mechanical defects of the tractor-trailer. Based on the First Information Report, the police conducted investigation and filed charge sheet marked as Ex.A.6. Based on the evidence collected during the investigation, it was stated therein that the driver of the tractor was working with Narsimha Reddy(owner of the vehicle/ accused) for the last six years. On 27.12.2004 while the accused was driving the tractor from Sangareddy, and when he reached the limits of Choutakur Village, he stopped the tractor in a negligent manner without keeping side lights and other precautionary measures, as a result of which the scooterist dashed the tractor from back side and died on the spot, while the pillion rider (P.W.2) sustained grievous injuries. The accused was charged for offences punishable under Section 304-A and 337 of I.P.C. 18. It may be mentioned that all the exhibits have been marked without any protest from the insurance company. The contents of the said documents were also not disputed. When claimant No.1 (P.W.1) and the eye witnesses P.W.2 were examined they were not even confronted with the correctness of the contents of the said documents. The cumulative analysis and effect of the evidence of P.W.2 and Exs.A.1, A.2, A.4, A.5 and A.6 and the absence of any evidence from the insurance company would indisputable show that the accident occurred only due to the rash and negligent driving by the driver of the tractor. On the above analysis of evidence, it is therefore to be held that there was no contributory negligence on the part of the deceased. It may be mentioned that the accident occurred on 27.1.2004 at 11.00 P.M., during the peak of winter season and it is not difficult to infer that on the high ways, the visibility would be poor. Even if vehicles are parked on the side of the roads without proper precautions such as blinkers or other indications, it is difficult to notice even from a close range. In the instant case, the entire evidence would point out that no such precautions, not even minimal, was available which the deceased could have noticed the parking of the vehicle on the road. The focus of lights of the vehicles coming in the opposite direction further added to the invisibility. Having regard to the same, it is to be held that the accident occurred only due to the rash and negligent driving of the tractor and trailer. 19. In this context it is useful to notice the Judgment of the Apex Court in NATIONAL INSURANCE COMPANY LIMITED V. ABHAY SINGH YADAV[1] wherein the Court held thus: “Admittedly the occurrence took place in February, a winter month, when the sun sets early and the night begins. Admittedly, the alleged accident took place at about 7.30 P.M.in the night. According to the site plan, the truck was parked in front of a Dhaba, which had sufficient land for parking of the truck. But even then, the truck driver chose not to park the truck in the land between the Dhaba and the road, but chose to park the truck on the left hand side of the road. According to the witnesses, the truck had no reflectors, blinkers, indicators or even a line of stones around it to clearly indicate its stationary position to the vehicles which were moving behind it. The truck driver while parking the truck in such a haphazard manner owed a duty to the public at large to indicate that the truck had been parked on the road itself. Even assuming that the truck was parked on an emergency basis, the driver was required to give some indication to the public by turning on the indicators, stop lights or by placing stones around the truck that the truck was stationary and not moving. None of these precautions were taken by the truck driver. Hence, the truck driver was clearly negligent in parking the truck on the road itself”. 20. It is therefore, to be held that the accident occurred due to rash and negligent driving of the tractor and trailer and the deceased no way contributed. Issue Nos. 1 and 2 are answered accordingly in favour of the claimants and against the Insurance Company. 21. Learned counsel for the Insurance Company seeks to rely on the Judgment of the Apex Court in RAJ RANI AND OTHERS V ORIENTAL INSURANCE COMPANY[2] and the Judgment of the Honourable High Court of Madhya Pradesh, Gwalion Bench in KALPANA DEVI PANDEY V GABBAR SINGH BAGHEL[3]. In my considered opinion, on the facts of the case, the said Judgments are not applicable. 22. ISSUE NO.3: On the question of quantum as noted above, the Tribunal assessed the monthly income at Rs.2000/- and took the age of the deceased as 34 years. Although the Tribunal noticed that the correct multiplier was ‘15’ taking the age of the deceased as 34 years applied only ‘15’ multiplier. However, as held by the Apex Court in SARLA VARMA AND OTHERS V DELHI TRANSPORT CORPORATION AND ANOTHER[4], if the deceased is aged about 34 years ‘16’ multiplier should be applied. Applying the same, the claimants are entitled for a sum of Rs.3,84,000/- instead of Rs.3,60,000/- as awarded by the Tribunal towards loss of earnings. Therefore, the claimants are entitled for an enhancement amount of Rs.24,000/- in this appeal. The Tribunal has already awarded other amounts which need not be interfered. The Insurance Company and the owner of tractor-trailer (Respondents in the O.P) are jointly and severally liable to pay the enhanced amount. Each claimant is entitled for share in the same proportion as per the orders of the Tribunal. 23. From the foregoing discussion, C.M.A.No.769 of 2009 is dismissed and M.A.C.M.A. No.2712 of 2008 is partly allowed to the extent indicated above. There shall be no order as to costs. __________________ NOUSHAD ALI, J JULY 30, 2010. YVL [1] 2007 ACJ 2175 [2] 2009 ACJ 2003 [3] 2010 ACJ 1312 [4] 2009 ACJ 1298