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2013 DIGILAW 1218 (AP)

Tummala Raji Reddy v. T. Panduranga Rao

2013-12-24

ASHUTOSH MOHUNTA, M.SATYANARAYANA MURTHY

body2013
JUDGMENT : ASHUTOSH MOHUNTA, J. 1. This is an appeal preferred by the appellants-claimants being not satisfied with the amount of compensation awarded in the award dated 3.8.2005 passed in O.P. No. 529 of 2001 by the learned Chairman, Motor Accidents Claims Tribunal-cum-First Additional District Judge, Ranga Reddy District. 2. The aforesaid claim petition was filed by appellants claiming compensation of Rs. 15,00,000/- on account of the death of T. Surya Narayana Reddy, who is the son of the claimant No. 1, brother of the claimant No. 2 and grandson of the claimant No.3. It was averred in the claim petition that on 12.5.2000 at about 9.30 p.m., said T. Surya Narayana Reddy was proceeding on his Yamaha motor cycle bearing No. AP 10-E 6180 to his house at Uppal. When he reached the Public School at Ramanthapur, one auto-rickshaw hit him resulting in his fall. Then, a lorry bearing No. AP 10-U 1566 owned by the respondent No. 1 and insured by respondent No. 2 being driven in a rash and negligent manner came from behind and ran over the deceased causing severe injuries resulting in his death. According to the claimants, the driver of the lorry did not apply brakes even though he had sufficient time to avoid the accident and caused the accident. The deceased was immediately shifted to Osmania General Hospital where he was declared as brought dead at 10 p.m. 3. On a complaint, the police of Uppal registered a case against the driver of the lorry in Crime No. 140 of 2000 for the offence punishable under section 304-A, Indian Penal Code. 4. Claimants stated that deceased was aged 31 years as on the date of accident and was working as a Programmer-cum-Database Administrator in Watsol Organics Limited and was earning Rs. 6,000/- per month along with other benefits. He was the only earning member in the family and due to his untimely death, they lost their sole source of living. 5. Before the Tribunal, the respondent No. 1 who is the owner of the lorry remained ex parte. Respondent No. 2 who is the insurer of the lorry filed counter-affidavit denying the facts leading to the accident; rash and negligent driving of the driver of the lorry; the age, occupation and income of the deceased and the dependency of the claimants. Before the Tribunal, the respondent No. 1 who is the owner of the lorry remained ex parte. Respondent No. 2 who is the insurer of the lorry filed counter-affidavit denying the facts leading to the accident; rash and negligent driving of the driver of the lorry; the age, occupation and income of the deceased and the dependency of the claimants. According to the respondent No. 2, the owner and insurer of the motor cycle and the auto-rickshaw are necessary parties and that there was negligence on the part of the driver of the auto-rickshaw and the deceased. Therefore, it is not liable to pay the compensation. There was gross negligence on the part of the deceased since he failed to observe traffic rules. It is also its case that the driver of the lorry had no valid and subsisting driving licence. It was also contended that the claim made by the claimants was excessive and exorbitant. 6. Based on the above pleadings, the following issues were framed by the Tribunal: "(1) Whether the accident occurred owing to rash and negligent driving by the driver of the lorry bearing No. AP 10-U 1566? (2) Whether the vehicle involved in the accident is insured with the respondent No. 2? (3) Whether the petitioner is entitled for any compensation? If so, to what amount and against whom? (4) To what relief?" 7. In order to prove the claim, on behalf of the appellants-claimants, PW 1 was examined and Exhs. A1 to A8 were got marked. On behalf of the respondent insurance company, none were examined, nor any documentary evidence was adduced. However, the affidavit of examination-in-chief of RW 1 was filed, but he was not present for cross-examination. 8. Upon thorough appreciation of the evidence brought on record, the Tribunal recorded a finding that the accident occurred due to contributory negligence of the deceased and the driver of the lorry and fixed their negligence in the ratio of 50:50. Then proceeding to assess the compensation, having regard to the contributory negligence fixed on the deceased, the Tribunal awarded a total compensation of Rs. 95,000/- to the appellant-claimant No. 1 together with proportionate costs and interest at 9 per cent per annum from the date of filing the claim petition till the date of deposit of the amount. 9. Then proceeding to assess the compensation, having regard to the contributory negligence fixed on the deceased, the Tribunal awarded a total compensation of Rs. 95,000/- to the appellant-claimant No. 1 together with proportionate costs and interest at 9 per cent per annum from the date of filing the claim petition till the date of deposit of the amount. 9. In this appeal, the learned counsel for the appellants-claimants vehemently contended that the compensation awarded by the Tribunal is extremely on lower side and that the Tribunal was not justified in holding that there was contributory negligence on the part of the deceased and the driver of the lorry in the ratio of 50:50 when there was no negligence on the part of the deceased. Learned counsel also contended that since the deceased was aged only 31 years as on the date of the accident, the Tribunal ought to have granted future prospects. According to learned counsel, even though the deceased is unmarried, his age should be taken into consideration for adopting the multiplier. Thus arguing, he sought that the appeal be allowed. 10. Learned standing counsel appearing for the appellant insurance company contended that since there was negligence on the part of the deceased, the Tribunal was justified in attributing contributory negligence to the deceased and the amount awarded by the Tribunal is reasonable and needs no interference by this court. 11. Heard the learned counsel for the parties and perused the material available on record. 12. Insofar as issue No. 1 is concerned, the claimants did not examine any eye witness except filing of the copy of the F.I.R. The insurance company, respondent No. 2, also did not examine the driver of the crime lorry. In the F.I.R., it was stated that the brother-in-law of the deceased, by name Devender Reddy, on coming to know about the incident through one Yadagiri; stated that when the deceased was going on his motor cycle, one auto-rickshaw hit his motorcycle due to which he fell down and thereafter lorry bearing No. AP 10-U 1566 being driven by its driver in a rash and negligent manner ran over the deceased causing grievous injuries resulting in his death at about 10.10 p.m. 13. From the contents of the F.I.R., it cannot be inferred that both the deceased and the driver of the lorry were negligent in driving their vehicles. From the contents of the F.I.R., it cannot be inferred that both the deceased and the driver of the lorry were negligent in driving their vehicles. The insurance company, respondent No. 2, except making an averment that there was contributory negligence of both the deceased and the driver of the lorry in causing the accident did not make any legitimate attempt to prove the same. The Tribunal, on surmises and conjectures, without any valid evidence came to the conclusion that both the deceased and the driver of the lorry were negligent and both of them have contributed to the accident. 14. The Tribunals should take special care to see that innocent victims do not suffer and owners and drivers do not escape liability merely because of some doubt here and there, culpability must be inferred from the circumstances where it is fairly reasonable. Therefore, from the pleadings of the present case it can be inferred that first the driver of the auto-rickshaw was negligent in driving the auto due to which the deceased fell down and thereafter the lorry coming from behind in a rash and negligent manner ran over the deceased. Therefore, the finding of the Tribunal that there was contributory negligence of the deceased and the driver of the lorry in the ratio of 50:50 is liable to be set aside and it is accordingly set aside. We now hold that the driver of the auto-rickshaw and the driver of the lorry are responsible for causing the accident in the ratio of 50:50. 15. As regards the quantum of compensation, it is the case of the claimants that deceased was working as a Programmer-cum-Database Administrator in Watsol Organics Limited and earning Rs. 5,000/- per month apart from Rs. 1,000/- for conveyance. Since the deceased was a graduate with diploma in computers, his income was rightly taken at Rs. 6,000/- per month. However, it is to be seen, if the principles laid down by the Apex Court in Rajesh v. Rajbir Singh, 2013 ACJ 1403 (SC), are applied to the case on hand, the compensation payable to the appellants-claimants would far exceed the compensation awarded by the Tribunal. It is not in dispute that the age of the deceased as on the date of death in the road accident was 31 years. It is not in dispute that the age of the deceased as on the date of death in the road accident was 31 years. As per the decision of the Apex Court stated supra, if 50 per cent of the income is added for future prospects, it comes to Rs. 9,000/- per month. Since the appellant No. 2, brother of the deceased, was a major, as rightly held by the Tribunal, he is not a dependant and entitled to any compensation. Since the appellant No. 1 was the only dependant, he is entitled to receive compensation. If 50 per cent of the income of the deceased is deducted. for personal and living expenses, then contribution to the family would come to Rs. 4,500/- per month or Rs. 54,000/- per annum. In view of the judgment of the Apex Court in P.S. Somanathan v. District Insurance Officer, 2011 ACJ 737 (SC), even though the deceased was unmarried as on the date of the accident, his age alone should be considered for determining the loss of dependency. As the deceased was aged 31 years as on the date of the accident, the appropriate multiplier as per the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC), will be 17 and if the same is applied, the loss of dependency would come to Rs. 9,18,000/-. Appellant No. 1 being the father of the deceased is entitled to receive Rs. 50,000/- for loss of love and affection and Rs. 25,000/- towards funeral expenses. Thus, in all, the appellant-claimant No. 1 is entitled to receive a sum of Rs. 9,93,000/-. 16. However, the learned standing counsel appearing on behalf of the insurance company, respondent No. 2, contended that since it is held by this court that the driver of the auto-rickshaw and the driver of the lorry have contributed their negligence to the accident and since the appellants have not impleaded the owner and driver of the auto-rickshaw, the insurance company is not liable to pay the entire compensation. 17. In order to consider the above contention raised by the learned standing counsel for the insurance company, it is apt to refer to the judgment of the Supreme Court in Union of India v. United India Insurance Co. 17. In order to consider the above contention raised by the learned standing counsel for the insurance company, it is apt to refer to the judgment of the Supreme Court in Union of India v. United India Insurance Co. Ltd., 1998 ACJ 342 (SC), wherein it was held that where accident has occurred due to negligence of the drivers of two vehicles and not due to the negligence of the claimant, one of the joint tortfeasors cannot plead contributory negligence on the part of the passengers of the vehicle and qua the passengers of the bus, who were innocent, the driver and owner of the vehicles would be joint tortfeasors. It is also held that the Motor Accidents Claims Tribunal is clearly alternative forum in substitution of civil court for adjudicating upon claims for compensation arising out of the use of the motor vehicles. It is well settled that the liability of joint tortfeasors is joint and several and each is responsible, jointly with each and all of the others and also severally for the whole of the amount of damage caused by the tort, irrespective of the extent of his participation. The injured may sue any one of them separately for the full amount of loss or he may sue all of them jointly in the same action and even in the latter case, the judgment so obtained against all of them may be executed in full against any one of them. 18. The next point to be considered is about the rights and remedy of the joint tortfeasor who satisfies the award. It is well settled that in the absence of both the joint tortfeasors, it would not be appropriate to apportion negligence or blameworthiness as the said finding would not be binding on the other joint tortfeasor, who is not a party to the proceedings and courts and Tribunals should not pass judgment or order, which cannot be executed. However, the only joint tortfeasor, who is made a party to the petition and satisfies the award, cannot be said to be without any remedy, It is open to him to claim contribution from the other joint tortfeasor to the extent of his blameworthiness. [See Karnataka State Road Trans. Corpn. v. Arun, 2004 ACJ 249 (Karnataka)]. 19. However, the only joint tortfeasor, who is made a party to the petition and satisfies the award, cannot be said to be without any remedy, It is open to him to claim contribution from the other joint tortfeasor to the extent of his blameworthiness. [See Karnataka State Road Trans. Corpn. v. Arun, 2004 ACJ 249 (Karnataka)]. 19. In view of the above settled legal position, we hold that insurance company, respondent No. 2, is at liberty to claim contribution from the other joint tortfeasor, i.e., the owner and insurer of the auto-rickshaw to the extent of their liability. However, it is seen from the record that the particulars of the auto-rickshaw were not furnished by the claimants. Even otherwise also, in view of the settled legal position in Arms case, 2004 ACJ 249 (Karnataka), where the name of other joint tortfeasor is not known, the only joint tortfeasor on record is bound to pay the compensation awarded to the claimant and the question of apportionment of blameworthiness in the absence of that joint tortfeasor does not arise. 20. In the result, we allow this appeal in part and award Rs. 9,93,000/- as compensation together with proportionate costs and interest at the rate of 7 per cent per annum. 21. Miscellaneous petitions, if any, pending consideration in the appeal shall stand closed. No order as to costs.