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2014 DIGILAW 466 (AP)

M. Madhavi v. Ch. Ananthaiah

2014-03-25

U.DURGA PRASAD RAO

body2014
Judgment : 1) Aggrieved by the Award dated 19-09-2008 in M.V.O.P No.790 of 2007 passed by the M.A.C.T-cum-VIII Additional Chief Judge, Hyderabad (for short “the Tribunal”), the claimants preferred the instant MACMA on the ground of inadequacy of compensation. 2) The factual matrix of the case is thus : a) The claimants are wife, minor daughters and parents of the deceased—Manaka Prasad. The case of the claimants is that on 13-02-2007 when the deceased along with others was proceeding in an auto bearing No.AP 23 U 5322 from Anajpur towards Gajwel and when they reached near S.C. Wada, Gajwel at about 12.30 P.M. a tractor bearing No.AP 23 K 1691 coming in the opposite direction driven by its driver at high speed and in a rash and negligent manner, dashed the auto and caused the accident. In the resultant accident the claimant and others sustained grievous injuries. Immediately the deceased was shifted to Gandhi Hospital, Musheerabad, Hyderabad where the doctors after examining him declared as dead. Hence, the claimants filed MVOP No.790 of 2007 against respondents 1 and 2 who are the owner and insurer of the offending tractor and claimed Rs.10,00,000/- as compensation under different heads mentioned in the OP. a) R1 remained ex-parte. b) Respondent No.2—Insurance Company filed counter and opposed the claim and denied all material averments in the petition. Firstly, it contended that as per FIR an unnumbered tractor was involved in the accident but subsequently while filing charge-sheet tractor bearing No.AP 23 K 1691 was implicated in the case. Secondly, it contended that at the time of accident more than 15 persons were travelling in auto contravening its seating capacity and as such the accident was occurred due to the fault of driver of auto who overloaded the vehicle. Finally, R2 contended that the claim is excessive and exorbitant. c) During trial P.Ws.1 to 3 were examined and Exs.A1 to A12 were marked on behalf of the claimants. R.W.1 was examined and Exs.B1 to B5 were marked on behalf of respondents. d) A perusal of the award would show that considering the oral evidence of P.Ws.1 to 3 coupled with documentary evidence Ex.A1—FIR, Ex.A2—charge sheet and Ex.A4—post-mortem report, the Tribunal held that accident took place due to contributory negligence of both the drivers of auto and tractor and accordingly fixed the liability in the ratio of 50: 50. d) A perusal of the award would show that considering the oral evidence of P.Ws.1 to 3 coupled with documentary evidence Ex.A1—FIR, Ex.A2—charge sheet and Ex.A4—post-mortem report, the Tribunal held that accident took place due to contributory negligence of both the drivers of auto and tractor and accordingly fixed the liability in the ratio of 50: 50. The Tribunal rejected the contention that the crime tractor was manipulated. e) Compensation is concerned, the Tribunal observed that the claimants in fact are entitled to the compensation of Rs.8,96,000/- under different heads as follows : Loss of dependency Rs. 8,64,000-00 Loss of consortium Rs. 15,000-00 Loss of estate Rs. 15,000-00 Funeral expenses Rs. 2,000-00 Total Rs. 8,96,000-00 However, since the contributory negligence on the part of the deceased was fixed at 50%, the Tribunal awarded net compensation of Rs.4,48,000/- (Rs.8,96,000/2) to the claimants. Hence, the appeal by the claimants. 3) Heard arguments of Sri P. Rama Krishna Reddy, learned counsel for appellants and Sri S. Venkateswarlu, learned counsel for 2nd respondent—Insurance Company. 4 a) Criticizing the award learned counsel firstly argued that the Tribunal failed to appreciate the oral evidence of PW2 and other documentary evidence and wrongly held that accident was occurred due to the contributory negligence of both the vehicles. He argued that as against the eye-witness evidence of PW2 no contra evidence was adduced by the Insurance Company to show that the deceased contributed for the accident. He argued that when there is no contra pleading or evidence on the aspect of contributory negligence, the same cannot be raised first time in the arguments and accepted. In this regard he relied upon the following decisions. 1) Zareen Bega v. New India Assurance Co. Ltd. ( 2004 ACJ 1148 ). 2) Repaka Rajya Laxmi v. Poldasari Komuraiah ( 2009 ACJ 138 ). 3) Karri Nagapadma Sridevi vs. Oriental Fire and General Insurance Company Ltd. (2002 (1) ALT 44 (DB). 4) United India Insurance Co. Ltd., Hyderabad v. T. Gandamma ( 2009 (6) ALD 779 ). 5) Perneti Nirmalamma v. Andhra Pradesh State Road Transport Corporation (2010 ACJ 2486). He further argued that mere overloading of auto even if admitted to be true, per se cannot give presumption of contributory negligence on the part of auto driver. On this point he relied upon the following decisions : 1) Devisingh v. Vikramsingh ( 2008 ACJ 393 ). 5) Perneti Nirmalamma v. Andhra Pradesh State Road Transport Corporation (2010 ACJ 2486). He further argued that mere overloading of auto even if admitted to be true, per se cannot give presumption of contributory negligence on the part of auto driver. On this point he relied upon the following decisions : 1) Devisingh v. Vikramsingh ( 2008 ACJ 393 ). 2) Sudhir Kumar Rana v. Surinder Singh ( 2008 ACJ 1834 ). b) Secondly, regarding quantum of compensation he argued that the Tribunal erred in accepting the monthly income of the deceased as Rs.6,000/-. He submitted that the deceased was a driver. Besides, by doing cultivation and vending milk to sweet shops and others he was earning money. Therefore, the Tribunal ought to have accepted his monthly income at Rs.14,000/- instead of Rs.6,000/-. He also argued that the deceased was a young person and so the future prospects must have also been taken into consideration for fixing his earnings. c) Nextly, he argued that the Tribunal ought to have deducted 1/4th instead of 1/3rd from the earnings of the deceased following the decision in Smt. Sarla Verma v. Delhi Transport Corporation ( 2009 ACJ 1298 )since the number of dependants are six in the instant case. d) Thirdly, he argued that first claimant is entitled to Rs.1 lakh towards loss of consortium in view of decision reported in Rajesh v. Rajbir Singh (2013 ACJ 1403)and further the claimants are entitled to Rs.25,000/- towards funeral expenses as per the same decision. He thus prayed to allow the appeal and enhance the compensation considering the above points of arguments. 5 a) Per contra, strongly opposing the argument of appellants, learned counsel for R2/Insurance Company firstly argued that the contributory negligence on the part of deceased is writ large from the facts that he overloaded his auto with 15 persons as against the seating capacity of 4 persons. Thereby he was unable to control the vehicle and dashed the tractor. It was a head on collision and front parts of both the vehicles were damaged. Therefore, the Tribunal rightly held that the deceased/auto driver was responsible for the accident to an extent of 50%. On the aspect of contributory negligence he relied upon the decision in Raj Rani v. Oriental Insurance Company Limited (2009) 13 SCC 654 ). It was a head on collision and front parts of both the vehicles were damaged. Therefore, the Tribunal rightly held that the deceased/auto driver was responsible for the accident to an extent of 50%. On the aspect of contributory negligence he relied upon the decision in Raj Rani v. Oriental Insurance Company Limited (2009) 13 SCC 654 ). b) Secondly, regarding quantum of compensation he argued that in the inquest report which was the earliest document there was no mention about the alleged milk vending business of the deceased. So, the Tribunal rightly rejected the so-called milk vending business and rightly fixed his monthly earnings as Rs.6,000/- and assessed the compensation which is just and reasonable one and hence there is no need to enhance the same. He thus prayed to dismiss the appeal. 6) In the light of above rival arguments, the points for determination in this appeal are : 1) Whether the pleaded accident occurred due to the sole fault of tractor driver or whether the deceased has contributed for the accident? 2) Whether the compensation awarded by the Tribunal is just and reasonable and needs any enhancement?” 7 a) POINT No.1: Admittedly, the accident took place on 13-02-2007 at about 12.30 PM near S.C. Wada of Gajwel. At that time the deceased was driving the auto bearing No.AP 23 U 5322 with passengers. A tractor bearing No.AP 23 K 1691 came in opposite direction and hit the auto. It may be noted that in the FIR the tractor was described as unnumbered tractor. It appears that before the Tribunal the respondent/Insurance Company disputed the involvement of tractor bearing No.AP 23 K 1691 apart from raising other contentions. However, the Tribunal having regard to the facts and evidence has held that tractor bearing No.AP 23 K 1691 was very much involved in the accident. It may be noted that against the said finding the Insurance Company has not preferred any appeal or submitted cross-objections. So, the said finding became final. b) Now, the point is whether the tractor driver alone was responsible for accident or whether the deceased being the auto driver contributed to the extent of 50% as held by the Tribunal. It may be noted that against the said finding the Insurance Company has not preferred any appeal or submitted cross-objections. So, the said finding became final. b) Now, the point is whether the tractor driver alone was responsible for accident or whether the deceased being the auto driver contributed to the extent of 50% as held by the Tribunal. c) The award would show that though Ex.A2—charge sheet and evidence of PW2/eye-witness-cum-victim projected as if the accident was occurred due to the fault of tractor driver, the Tribunal did not place implicit reliance on the aforesaid evidence. So far as PW2 is concerned, the Tribunal observed that he wrongly deposed as if only 4 persons were travelling in auto against the contents of FIR which showed 15 persons travelled in the auto, though its seating capacity was 4 + D. The Tribunal observed that the front portion of auto was badly damaged and its front wheel was also broken as per Ex.B1—spot Panchanama. It further observed that both the vehicles coming in opposite direction to each other and met with an accident with head on collision, thereby the front portion of the tractor was damaged including its head lights. On these observations the Tribunal held that both the vehicle drivers have contributed for the accident in the ratio 50:50 and since the auto driver died in the accident the police filed charge sheet against the tractor driver. The said finding was carped in the appeal by the appellants. 8 a) The aspect of contributory negligence is concerned, in Sudhir Kumar Rana’s case (7 supra) a two-heeler was dashed by a mini-truck. The driver of the two-heeler was found to be not having driving licence. The question arose was whether mere lack of driving licence can be held to be contributory negligence on the part of driver. In that context the Honourable Apex Court defined the term “contributory negligence” and applied the same to the facts and evidence in that case. It held contributory negligence as follows : “A contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. It held contributory negligence as follows : “A contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. The question of contributory negligence would arise only when both parties are found to be negligent.” Applying the above definition the Supreme Court observed thus : “It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.” b) Thus, the ratio laid down by the Supreme Court is that mere lack of driving licence on the part of a driver cannot be taken as a contributory factor for the accident unless it is established that he drove the vehicle in a rash and negligent manner without knowing driving. 9) In Devisingh’s case (6 supra) a Full Bench of Madhya Pradesh High Court happened to discuss the aspect “contributory negligence”. In that case a motor cycle was hit by a jeep. The motor cycle at the time of accident was driven by its driver with two pillion riders instead of one pillion rider in violation of Section 128 of Motor Vehicles Act, 1988 (for short “the MV Act”). The Tribunal apportioned the liability between jeep driver and driver of motor cycle in the ratio 80:20. On the aspect whether mere overloading of the vehicle with two pillion riders in violation of Section 128 of MV Act amounts to contributory negligence or not, there were divergent opinions in the High Court of Madhya Pradesh. In Manjo Bee v. Sajjad Khan ( 2007 ACJ 737 (MP) a Division Bench held that mere such overloading do not amount to contributory negligence whereas in National Insurance Co. Ltd. V. Uma Tiwari (2007 (1) MANISA 204 (MP) another Division Bench opined that overloading of the scooter in contravention of provisions of Section 128 of MV Act was a clear act of negligence. In view of divergent opinions the case on hand was referred to Full Bench. Ltd. V. Uma Tiwari (2007 (1) MANISA 204 (MP) another Division Bench opined that overloading of the scooter in contravention of provisions of Section 128 of MV Act was a clear act of negligence. In view of divergent opinions the case on hand was referred to Full Bench. The Full Bench after referring various decisions has observed that mere overloading of two-wheeler in contravention of Section 128 of MV Act per se do not amount to contributory negligence unless it was established that overloading had casual connection with the accident. Accordingly, the decision in Manjo Bee ( 2007 ACJ 737 (MP) was held to be a correct law and the decision in Uma Tiwari (2007 (1) MANISA 204 (MP) was held to be not correct law. 10) In Raj Rani’s case (10 supra) cited by the respondent the Supreme Court again happened to discuss the aspect of contributory negligence with reference to various other decisions. It observed that earlier in Pramadkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak (2002) 7 SCC 455) the Supreme Court on contributory negligence held thus: “...The question of contributory negligence arises when there has been some act or omission on the claimant’s part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as ‘negligence’. Negligence ordinarily means breach of a legal duty to care, but when used in the expression “contributory negligence” it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an “author of his own wrong”. So, in the above decision the Honourable Apex Court has drawn distinction between negligence and contributory negligence. Negligence means breach of legal duty to care but mere negligence cannot be termed as contributory negligence. Contributory negligence means failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an author of his own wrong. 11) When all the above decisions rendered on the point of contributory negligence are analysed, we can understand that mere breach of legal duty or violation of provision of a statute per se cannot be termed as contributory negligence. 11) When all the above decisions rendered on the point of contributory negligence are analysed, we can understand that mere breach of legal duty or violation of provision of a statute per se cannot be termed as contributory negligence. In order to prove the contributory negligence, it must be established that the aforesaid breach of legal duty or violation of provision of a statute has contributed for the damage. 12) Hence, in the light of above principles when the facts and evidence of the present case are perused it is no doubt at the time of accident the auto was overloaded with more than 12 persons as can be seen from Ex.A2—charge sheet wherein the passengers were referred to as injured witnesses apart from the deceased. However, as per Ex.B2—permit and B3—RC book of the auto, its seating capacity was only four. Hence there is a clear breach of permit under MV rules. However, going by the principle laid down in the above decisions, mere breach or violation of provision of a statute cannot be regarded as contributory negligence unless it is established that such a breach in fact contributed for the accident. In the instant case, the claimants examined PW2 as an eyewitness-cum-victim of the accident who clearly deposed that before accident the auto was proceeding slowly on the extreme left side and when it reached SC Ward, Gajwel the offending tractor came on the wrong side at high speed and dashed the auto and caused the accident. This part of his evidence could not shattered in the cross-examination. It was suggested to him that since the auto was overloaded the accident took place which he denied. It may be noted that in the cross-examination it was not clearly suggested as to how the overloading of auto could contribute for the accident particularly, when the auto was moving on the extreme left side and when the tractor went on its wrong side and hit it. The respondent/Insurance Company has not adduced any contra evidence by examining the tractor driver or any other eyewitness to establish the fact that due to overloading of the vehicle the auto driver was unable to control the auto and dashed the tractor. Such evidence is totally lacking. 13) In the cited decisions reported in United India Insurance Co. The respondent/Insurance Company has not adduced any contra evidence by examining the tractor driver or any other eyewitness to establish the fact that due to overloading of the vehicle the auto driver was unable to control the auto and dashed the tractor. Such evidence is totally lacking. 13) In the cited decisions reported in United India Insurance Co. Ltd., Hyderabad v. T. Gandamma and Perneti Nirmalamma v. Andhra Pradesh State Road Transport Corporation (4 and 5 supra) the plea of contributory negligence was not accepted for lack of contra evidence in that regard. Here also there is no evidence to prove the alleged contributory negligence. Without such contra evidence, the Tribunal going by the fact that the front portions of both the vehicles were damaged and auto was over-boarded, assumed the contributory negligence on the part of auto driver which is not permissible in the absence of clear evidence. So the point No.1 is concerned, going by the facts and law it is held that the tractor driver alone was responsible for the accident. 14 a) POINT No.2 : Coming to the quantum of compensation the claimants pleaded that deceased besides being a driver, attending agricultural work and also vending milk by maintaining dairy farm and earning about Rs.14,000/- per month. PWs. 2 and 3 have spoken about the agricultural and milk vending business of the deceased. However, the Tribunal taking into consideration Ex.A3—inquest report held that he was an auto driver and agriculturist but not doing any milk business. Accordingly, the Tribunal fixed his monthly income at Rs.6,000/- and having regard to his age as 25 years fixed the multiplier of 18. After deducting 1/3rd from his annual earnings of Rs.72,000/- (Rs.6,000 x 12) multiplied the balance amount with 18 and arrived the loss of dependency at Rs.8,64,000/- (Rs.48,000 x 18). It also granted Rs.2,000/- towards funeral expenses; Rs.15,000/- towards loss of estate and another Rs.15,000/- towards loss of consortium. Thus, the Tribunal granted total compensation of Rs.8,96,000/- and awarded half of the said amount i.e. Rs.4,48,000/- to the claimants. b) Now, the contention of the appellants is that the Tribunal has taken low amount of Rs.6,000/- towards income of the deceased. It ought to have taken Rs.14,000/- in view of evidence regarding his earnings from agriculture and milk business besides running auto. b) Now, the contention of the appellants is that the Tribunal has taken low amount of Rs.6,000/- towards income of the deceased. It ought to have taken Rs.14,000/- in view of evidence regarding his earnings from agriculture and milk business besides running auto. As observed by the Tribunal, that the deceased was an auto driver and having agricultural is borne out from the record vide Exs.A1, A2, A3, A8 and A9. Milk business is concerned, though PW3 who said to be the proprietor of Kanakadurga Sweet Shop, Balanagar, Hyderabad deposed about his purchase of milk for his shop from the deceased and paid the amount under Ex.A7—bills, he admitted that there was no licence for his sweet shop issued by the Municipal Corporation of Hyderabad. He further admitted that there was no record to show that deceased supplied milk to him and he paid the amount. In these circumstances, it is difficult to believe his evidence. Therefore, the Tribunal rightly taken running of auto and agriculture alone as the avocations of the deceased and fixed his monthly income at Rs.6,000/-. Sofaras agriculture is concerned, due to death of deceased his family do not loose the income from the agriculture. It is not their case that they left the lands fallow after his death. Hence, due to his death they only lost the supervisor of lands. So even the income from auto and supervisory charges are taken into consideration it will not be more than Rs.6,000/-. Therefore, the tribunal was right in fixing his income at Rs.6,000/-. The selection of multiplier 18 is also correct. Thus, the compensation for loss of dependency was rightly assessed and there is no need to revise the same. c) The other contention of the appellants is that following the decisions in the cases of Sarla Verma and Rajesh (8 and 9 supra), the other items of the compensation need to be enhanced. It must be mentioned that award was passed long prior to above two decisions, taking into consideration the facts and circumstances, evidence and law prevailing by then. So far as compensation is concerned, they are entitled to Rs.8,96,000/-in view of finding in point No.1. This amount is just and reasonable and it will take care of the concerned claimants. As the compensation is found to be just and reasonable, there is no need to revise the same in terms of above decisions. So far as compensation is concerned, they are entitled to Rs.8,96,000/-in view of finding in point No.1. This amount is just and reasonable and it will take care of the concerned claimants. As the compensation is found to be just and reasonable, there is no need to revise the same in terms of above decisions. Point No.2 is answered accordingly. 15) In the result, this MACMA is partly allowed and ordered as follows: a) The appellants/claimants are held to be entitled to Rs.8,96,000/- as compensation with proportionate costs and simple interest at the rate of 6% per annum from the date of OP till the date of realisation against the respondents. b) The respondents are directed to deposit the compensation amount within one month from the date of this judgment, failing which execution can be taken out against them. No order as to costs in the appeal. As a sequel, miscellaneous petitions pending, if any, shall stand closed.