Partly allowed

M/s.National Insurance Company Limited v. K.Rajeswari

Telangana HC15 Dec 2014MACMA/3164/2007

Case brief

AI extract

What is this about?

This common judgment disposed of two appeals regarding a motor accident compensation claim. The court fixed 25% contributory negligence on the deceased rider due to triple riding and enhanced the compensation entitlement from Rs.1,61,500 to Rs.3,50,000 based on statutory guidelines applicable to three dependants.

What did the court decide?

Insurance appeal allowed to fix 25% contributory negligence; claimants' appeal allowed to enhance compensation to Rs.3,50,000.

M/s.National Insurance Company Limited Vs K.Rajeswari — Insurance | Telangana HC (2014)

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HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO

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M.A.C.M.A.Nos.3164 of 2007 and 790 OF 2009

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COMMON JUDGMENT:

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These two appeals are filed by the insurance company and claimants respectively against the award dated 06.11.2006 in O.P.No.100 of 2005 on the file of the Motor Accidents Claims Tribunal-cum-Principal District Judge, Kurnool.

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2 (i) MACMA No.3164 of 2007 is filed by the second respondent-insurer among the two respondents including owner of the auto bearing No.AP 21 V-4249 impugning the award of the Tribunal granting compensation of Rs.1,61,500/- as excessive out of the claim under Section 166 of the M.V.Act of Rs.3,00,000/- with interest at 7.5% per annum by saying Tribunal gravely erred in fixing liability on the negligence of the auto driver though there is a contributory negligence on the part of the rider of the bike with triple riding per se to fix contributory negligence from the bike seating capacity 1+1 and from contributory negligence to be fixed is equal irrespective of the size of vehicles when proceeding in opposite direction and hence to allow the appeal of the insurer by reducing the compensation fixing contributory negligence. It is the contention of the insurance company by placing reliance upon the Ex.B.2 acquittal judgment in C.C.No.181 of 2005 of Judicial Magistrate of First Class, Kurnool in acquitting the accused including from the evidence of another pillion rider of the bike by name Jayanna of his saying only there is a double riding and the deceased in O.P.No.100 of 2005 is claimed as one of the pillion riders and not the rider to say deceased was not proceeding

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on the bike if at all from that evidence.

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2(ii) Whereas, it is the claim in MACMA No.790 of 2009 by the claimants that the quantum of compensation awarded by the Tribunal is utterly low and Tribunal ought to have been awarded as prayed for and hence to allow the appeal by enhancing compensation as prayed for. It is also the contention that there is nothing contributed by the deceased to the accident and thereby to dismiss the appeal of the insurer.

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3. Perused the material on record. The parties are

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hereinafter referred to as they are arrayed before the Tribunal.

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4. Now, the points that arise for consideration are:

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i) Whether there is any contributory negligence on the part of the driver of the bike with two pillion riders or there is only 1+1 and if so the award of the Tribunal finding only auto driver at fault is unsustainable to interfere and if so with what observations?

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ii) The compensation awarded by the Tribunal is either excessive or utterly low and what is the just compensation and with what observations?

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iii) To what relief?

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POINT NOs.1 and 2:

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5. As point Nos.1 and 2 require discussion of same evidence, to avoid repetition, both the points are taken up together. A perusal of Ex.A.1 F.I.R. sets the law in motion within half an hour after the accident within a distance of below 8 K.M. to the police station, from the informant no other than M.Suryanarayana Reddy, PW.2 in O.P.No.100 of 2005 reads that on dated 21.09.2004 at about 1:00 P.M. in the noon due to the rash

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and negligent driving of the driver of the auto bearing No.AP 21 V- 4249 on the road leading from Earladinne village to Kodumur near Chintalamuniswamy temple while coming in the opposite direction with high speed in a rash and negligent manner with two pillion riders by name Maheswar Reddy, Bocha Karranna, and Jayanna of whom Maheswar Reddy and Karrenna died at the spot and Jayanna sustained injuries to the right hand. It clearly speaks that the bike is with triple riding against the capacity of 1+1 with 1+2 by violation of the permit and policy conditions by the rider of the bike and the accident occurred from the collusion of both vehicles while proceeding in opposite direction of one to the other. Ex.A.2 is the charge sheet filed by the police against the driver of the auto under Sections 337, 338 and 304 IPC covered by C.C.No.181 of 2005. No doubt, out of the three persons of the bike Jayanna one of the pillion riders survived with injuries and bike rider Maheswar Reddy the husband of PW.1 first claimant in the O.P. and Yerranna who is one out of the two pillion riders died at the spot. Here said Jayanna is not examined as witness by the claimants, but for the informant claimed as if eye-witness-PW.2 M.Suryanarayana Reddy. As per the observations from Ex.B.2 judgment of the trial Court in C.C.No.181 of 2005 filed against the auto driver, in acquitting the accused, also from the PW.6 in that criminal case said Jayanna one of the two pillion riders of the bike deposed as if there was only one pillion rider that is himself. The F.I.R. and charge sheet contents show said version of Jayanna is not correct. Non-examination of said Jayanna no way fatal to the claim when PW.2 deposed in the OP claim of the manner of the accident from which he set the law in motion within no time after the accident for registering Ex.A.1 FIR and also one of the witnesses to the charge sheet on behalf of the prosecution vide

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Ex.A.2 in this case, it is not of much importance whether another pillion rider Yerranna was really travelling or not but for the contention of the insurer of triple riding per se shall be presumed as contribution to the accident by the rider also. Thus, what is drawn attention from the acquittal judgment of the criminal Court in Ex.B.2 is not of much significance for appreciation of evidence in civil cases particularly in motor accident claims is by preponderance of probability, whereas in the criminal case beyond reasonable doubt. That too when there is no proper identification of the driver of the auto that mainly results in acquittal from perusal of Ex.B.2. Once the evidence of PWs 1 and 2 that is particularly PW.2 so called eye-witness, who set the law in motion, of the accident occurred from the negligent driving of the auto driver, it is required to be appreciated with reference to other facts. In the claim petition during trial on behalf of claimants besides PWs 1 and 2 including first claimant PW.1, Exs.A.1 to A.5 are marked. Among which Ex.A.1 is FIR and Ex.A.2 charge sheet referred supra. Among Exs.A.3 to A.5, Ex.A.3 is the inquest report not of much relevance Ex.A.4 is the P.M.report and Ex.A.5 is the M.V.I.report of which, the M.V.I. report shows only the auto was examined and it is found, damage to the wind screen left side shape and head lights and there is no mechanical defect for the accident when both vehicles are proceeding in opposite direction, the damage to the head lights and wind screen besides left side shape of the auto. If the auto is in the left side proceeding, the bike rider is to be at fault for the damage to the right side front portion of the auto as both vehicles proceeding in opposite direction. Once there is a damage on the left side shape as noted in the MVI report, it is difficult to believe the evidence of PW.2 eye-witness to the accident supported from his report Ex.A.1

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supported by the charge sheet against the auto driver Ex.A.2 as if he was at fault with no fault of bike rider. To that extent, the trial Court’s conclusion is not correct. No doubt, there is no scene of observation report before the Court as to the place of accident on the road to say the bike rider was in extremely wrong side for causing damage to the left side front portion of the auto. No doubt, from triple riding there is every possibility of loosing control but mere triple riding per se cannot be presumed when the facts disclose otherwise. However from the facts, as pointed out by the counsel for the insurer, it is not the mere damage of the shape of the left side of the auto but also wind screen and head lights damaged as per the M.V.I.Report to show there is directly head on collusion without which the head lights and wind screen damage does not arise and the head on collusion on the road does not arise but for contribution by bike rider also associated with triple riding. As contributory negligence fixing of liability depends upon several facts including size and condition of road, size of the road, size of the vehicles and place where the damage to the vehicle taken place, for no scene of observation report and the clue from M.V.I report referred supra; it is just to fix 25% contributory negligence on the bike rider-deceased for the remedy of the claimants to maintain any personal accident claim against the insurer of the bike for its recovery to that 25% and 75% liability of the auto driver, owner and insurer.

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6. Now, coming to the quantum of compensation whether excessive or low concerned, the claim petitioners are four in number, who are no other than major daughters no doubt claimed unmarried (two in number) minor son and father. It is pending the claim petition father died to say there are three dependants. As

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per Sarla Verma v Delhi Transport Corporatio n^[1] for the three dependants 1/3^rd to be deducted towards personal expenses. The multiplier from the age of the deceased for the persons aged about 31 to 35 multiplier is ‘16’ and 36 to 40 it is ‘15’, to take at 15.5 for deceased with two major children. Coming to the earnings of the deceased there is no proof filed to say that he was doing business, muchless of earnings. As per Lata Wadhwa v State of Bihar^[2] in the absence of proof of earnings Rs.3,000/- per month to be taken and for the accident was dated 21.09.2004, if Rs.3,900/- per month taken as the earnings of the deceased from that expression with proportionate increase for more than three years after the accident and 2/3^{r d} out of it, (for 1/3^rd towards personal expenses of the deceased to deduct), comes to Rs.2,266.67ps. it comes to Rs.2266.67 X 12 X 15.5 = Rs.4,21,600/- + funeral expenses Rs.25,000/- and loss of estate Rs.10,000/- and care and guidance to the minor son Rs.10,000/- = Rs.45,000/-, totalling Rs.4,66,600/- of which 75% liability of the auto owner and insurer comes to Rs.3,49,950/- rounded to Rs.3,50,000/- to which compensation the claimants are entitled. Accordingly, point Nos.1 and 2 are answered.

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POINT No.3:

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7. In the result, i) the appeal of the insurer is allowed in part to the extent of fixing contributory negligence on the part of the deceased rider of the bike with two pillion riders at 25% and of the auto driver, owner and insurer at 75%, however for nothing to reduce the quantum of compensation by dismissing in other respects and ii) the appeal of the claimants is also allowed in part by enhancing compensation from Rs.1,61,500/- to Rs.3,50,000/-,

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subject to payment of the deficit court fees on Rs.50,000/- for the claim was only for Rs.3,00,000/-. Interest awarded is at 7.5% per annum from the date of claim petition till today on Rs.3,00,000/and from today onwards on Rs.3,50,000/-. There is no order as to costs. In other respects the award of the Tribunal holds good. It is left open to the claimants to approach the tribunal to re-fix the apportionment and for any release of compensation amounts. The claimants shall pay the deficit court fees on Rs.50,000/- without which they are not entitled to execute the appeal award.

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Consequently, miscellaneous applications, if any, pending in these appeals, shall stand disposed of.

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_______________________ Dr. B. SIVA SANKARA RAO, J

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Date: 15^th December, 2014 PNV

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[1] 2009 ACJ 1298 [2] (2001) 8 SCC 197

M/s.National Insurance Company Limited v. K.Rajeswari

Case brief

What is this about?

What did the court decide?

M/s.National Insurance Company Limited v. K.Rajeswari

Case brief

What is this about?

What did the court decide?

What the court decided

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