Andhra Pradesh High Court – Amravati
Chintha Saritha, W.G.Dist 8 Others vs Abdul Kalam, Krishna Dist 3 Others on 28 January, 2025
APHC010543432014
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3509]
(Special Original Jurisdiction)
TUESDAY ,THE TWENTY EIGHTH DAY OF JANUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 4131/2014
Between:
Chintha Saritha, W.g.dist & 8 Others and Others ...APPELLANT(S)
AND
Abdul Kalam Krishna Dist 3 Others and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1.SRINIVASA RAO KURAPATI
2.G RONALD RAJU
Counsel for the Respondent(S):
1.HARI RAO LAKKARAJU
2.NARESH BYRAPANENI
3.SRINIVASA RAO KAMARAJUGADDA
The Court made the following ORDER:
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
&
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL
NO:4131 OF 2014
JUDGMENT (per CHALLA GUNARANJAN, J):
This appeal is preferred by the unsuccessful wife, minor
children, father and mother of the deceased for compensation
under Section 166 of the Motor Vehicles Act, 1988, claiming an
amount of Rs.50 Lakhs for death which has been rejected by Motor
Accidents Claims Tribunal – cum- Additional District Judge, West
Godavari District, by order dated 23.07.2014 in
O.P. No.50 of 2011.
2. For convenience’s sake, the parties will hereinafter be
referred to as arrayed in the M.V.O.P.
3. The case of the claimants, in brief, according to the
averments set out in the claim, before the Tribunal, are as follows:
(a) The deceased Dr.Chintha Rajasekhar, M.B.B.S. and PG
(Diploma) in Tuberculosis and Chest Diseases, has been
practicing as a Doctor and running a private hospital namely
Saritha Hospitals (chest & critical care unit) at Jangareddygudem.
While so, on 04.01.2011, the deceased was on his way from his
native place i.e., Nowduru of Veeravasaram Mandal to
2 RNT, J & CGR, J
MACMA. No.4131 of 2014
Jangareddygudem, by self-driving in his car bearing registration
No.AP 37AM 2552. When his car reached Gopannapalem Village
at about 10.15 p.m., upon noticing bullock cart carrying a heavy
load of Palmyrah leaves coming in opposite direction, he after
giving dim and dip of car light signals and blowing horn crossed the
said bullock cart, but unfortunately, Lorry bearing registration
No.AP 21U 0090 was stationed in the middle of the road without
exhibiting any parking signals to identify the same, un-noticing the
same, the deceased had rammed the car into the said stationed
lorry, thereby receiving severe injuries all over the body and died
on the spot. The deceased was having valid driving license and
the car in which he was travelling i.e., Ford Fiesta Car was also
validly insured with the 3rd respondent – New Indian Assurance
Company Limited. Even the lorry involved in the accident was also
insured with the 4th respondent – M/s.IFFCO – Tokia General
Insurance Company Limited.
(b) The claimants have attributed negligence to the driver of the
lorry who has stationed the vehicle in the middle of the road at
10.15 pm without exhibiting any parking signs which was the root
cause of the incident. It is claimed that the deceased being a
qualified doctor and having also done P.G. Diploma in
Tuberculosis and Chest Deceases in the year 2000, had a
3 RNT, J & CGR, J
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considerable private practice at Jangareddygudem and for the
assessment year 2009-10 has a professional income of about
₹3,23,742/-. The deceased was also claimed to have constructed
a hospital with G+3 floors to expand the operations, so had
sufficient source of income.
(c) Both respondents – Insurance Companies have filed written
statements and opposed the claim made before the Tribunal
essentially on the ground that the accident occurred only because
of negligence of the deceased who was driving car on his own and
there was no negligence on the part of the driver of the lorry,
inasmuch as the lorry was not in the middle of the road as alleged
by the claimants and rather the accident occurred while the
deceased tried to overtake the bullock cart, dashed the Lorry.
Further they have also contended that FIR, Inquest Report and
Final report submitted by the police upon investigation indicated
that the accident occurred while the deceased overtook the Bullack
Cart and dashed stationed Lorry only because of the sheer
negligence of the deceased driver, therefore, no liability can be
fastened on the respondents – insurance companies.
(d) The 4th respondent insurance company further raised
another contention that there was only limited coverage qua it for
a sum of rupees two lakhs against third party for which a separate
4 RNT, J & CGR, J
MACMA. No.4131 of 2014
and independent claim has been made, which has to be
considered separately.
(e) Tribunal after evaluating the evidence brought on record by
the claimants i.e., the evidence of witnesses P.Ws.1 to 5 and
Exs.A1 to A23 and on behalf of the respondents, the evidence of
R.W.1 and the documents under Ex.B1 coupled with Exs.X1 to X3
marked by the court, has finally come to the conclusion that the
accident had occurred, while the deceased overtook the bullock
cart and dashed the stationed lorry only due to the negligence of
the deceased who was driving the car and not due to the
negligence of the lorry in parking it on road margin and hence,
rejected the claim for compensation. So far as the other issue
relating to the quantum of compensation is concerned, the Tribunal
has assessed the income of the deceased as Rs.25,000/- per
month, based on the Income Tax Returns besides the future
prospects, loss of consortium etc., however as it has been held that
the accident occurred only because of the negligence of the
deceased no compensation was awarded. Aggrieved by the
aforesaid order, the present appeal is preferred.
4. Heard Sri Srinivasa Rao Kurapati, learned counsel for
appellants/claimants for the appellants 1 and 2, Sri G.Ronad Raju,
learned counsel for appellants 3 and 5 to 9, Sri Hari Rao Lakkaraju,
5 RNT, J & CGR, J
MACMA. No.4131 of 2014
learned counsel for the respondents 1 and 2,
Sri Naresh Byrapaneni, learned counsel for 3rd respondent and Sri
Srinivasa Rao Kamarajugadda, learned counsel for the
4th respondent.
5. (a) Learned counsel for claimants contended that the
Tribunal committed a serious error in concluding that the
negligence was attributable solely to the deceased and not the
driver of the lorry and it has completely misunderstood the
evidence of eye witnesses i.e., P.Ws.3 and 4, who were present
when the accident has happened. The reasoning given by the
tribunal for disbelieving the evidence of eyewitnesses P.Ws.3 and
4 is completely perverse and erroneous. Further, the Tribunal also
committed a serious error in not appreciating the fact that the 3rd
respondent – Insurance Company has not chosen to examine the
driver of the lorry to prove otherwise in support of the claim that the
lorry was stationed on the margin of the road but not on the middle
of the road. The Tribunal also committed error in giving much
weightage to the Exs.A1- FIR, A4- Final Report and Ex.X2 –
Inquest report, to hold that the deceased while proceeding towards
Jangareddygudem, drove the car at high speed and while crossing
the bullock cart lost control of the car and rammed into the
stationed lorry parked on the roadside margin, due to which he
6 RNT, J & CGR, J
MACMA. No.4131 of 2014
sustained injuries and died on the spot. When neither VRO nor any
of the police was examined by the Insurance Companies and the
documents mentioned above which relate to an offence under IPC
will not have any bearing on the present proceedings being
considered under Section 166 of MV Act inasmuch as the degree
of proof required to be established is on the touch stone of
preponderance of probability but not proof beyond reasonable
doubt, therefore placing reliance on the above documents was
completely erroneous. In support of the said proposition, the
counsel would placed reliance on the judgment of the Hon’ble Apex
Court in Bimla Devi and others v. Himachal Road Transport
Corproation and others1.
(b) With reference to the negligence part on account of parking
of stationed lorry on the road, particularly on State Highway or
National Highway, it is the contention of counsel for claimants that
the lorry which is stationed should meet the requirements of all
precautions and proper signs be exhibited to avoid any accidents,
failing which the negligence would be attributable to the driver of
the lorry who does so. Further the burden of proof that placement
of the vehicle on the road or road margin with appropriate
precautionary measures including signages while leaving the
1
2012 (4) ALD 147 (SC)
7 RNT, J & CGR, J
MACMA. No.4131 of 2014
vehicle in a stationary position were essentially on the person in
control of such vehicle and in support of the same, the evidence of
driver of the lorry would become very much relevant. In support of
this proposition, he placed reliance on the decision of this Court in
Adipudi Rajyalakshmi and others v. Chebrolu Ankamma Rao
and others2.
6. (a) Opposing the above submissions, Sri Naresh
Byrapaneni, learned counsel for 3rd respondent contended that the
evidence of P.Ws.3 and 4 were inconsistent with each other with
regard to the occurrence of the accident as P.W.3 has given quiet
inconsistent statement in chief and cross stating that the bullock
cart was in opposite direction at one place and in same direction in
another place. So, therefore, the Tribunal has rightly disbelieved
the evidence of P.Ws.3 and 4 and further, he would contend that
the said witnesses are planted and false witnesses. He also
contended that even the FIR and inquest report on record clearly
demonstrated that the incident has happened because of the
negligence of the deceased but not the driver of the lorry and in
fact, the lorry was stationed on the margin of the road and while
overtaking the bullock cart, the deceased has rammed into
stationed lorry which was parked on road margin. Therefore, the
2
2014 (5) ALD 111
8 RNT, J & CGR, J
MACMA. No.4131 of 2014
Tribunal has come to the right conclusion that there was no
negligence on the driver of the lorry and rather, it was solely
attributable to the deceased, hence there is no perversity. He also
contended that the judgments relied on by learned counsel for
claimants have no application to the facts of the present case.
(b) Coming to the other aspect of the quantum of compensation,
he would contend that the monthly income assessed by the
Tribunal @₹25,000/- per month is excessive and has no basis.
Further, it is also contended that so far as the
policy of the 4th respondent insurance company under Ex.A19 is
concerned, it has only personal accident claim coverage for which
the claimants have already made a claim and the same was being
processed, except that no further liability can be fastened on the
4th respondent.
7. Perused the record and this Court has gone through the
evidence of both the claimants and respondent insurance
companies besides the documents exhibited.
8. Now, the points that arise for consideration are:
I. Whether the finding given by the tribunal that the accident
occurred only due to the negligent driving of car by the
deceased and not due to the negligence of the driver of
the lorry which was stationed is tenable? If not,
9 RNT, J & CGR, J
MACMA. No.4131 of 2014
II. Whether the claimants are entitled for compensation as
sought for by them and if so, what would be the just and
fair compensation?
Point No.I:
9. Admittedly, the deceased doctor was driving car by himself
and proceeding in the direction from Eluru to Jangareddygudem on
the fateful day i.e., on 04.01.2011. The evidence of eyewitnesses
P.Ws.3 and 4 both in chief and cross-examination deposed that
they are unrelated to the deceased and further deposed that they
were also travelling by different cars behind the deceased vehicle
at a close distance. In the chief affidavit of P.W.3, he has deposed
that while Ford Fiesta car was going on Eluru – Jangareddygudem
Road with moderate speed, a bullock cart with heavy load of
Palmyrah Leaves came in opposite to the said car and on seeing
the same, the deceased has slowed down the car and after blowing
horn and giving light signals, crossed the bullock cart but due to
presence of the stationed lorry in the middle of the road without
parking lights and exhibiting precautions, the car has rammed into
the lorry. Even in the cross-examination also, P.W.3 has deposed
that ahead of the car driven by deceased Bullock Cart was
proceeding to Jangareddygudem and when car overtook the
Bullock Cart, the accident took place. This evidence was given by
10 RNT, J & CGR, J
MACMA. No.4131 of 2014the P.W.3, who is journalist and he also has deposed that the said
incident was immediately covered in the electronic media by
scrolling the same in Zee 24 News Channel.
10. Likewise, even P.W.4 has deposed in same lines stating that
while the deceased car was proceeding in the direction from Eluru
to Jangareddygudem with moderate speed in order to cross
bullock cart carrying heavy load of Palmyrah Leaves, he slowed
down and after blowing horn and giving light signals, crossed the
bullock cart and rammed into the lorry, which was stationed in the
middle of the road without any parking lights and exhibiting
precautions. Nothing contra has been elicited in his
cross-examination.
11. The Tribunal while evaluating the evidence of P.Ws.3 and 4
has misunderstood the same and come to the conclusion that they
gave different and inconsistent statements in chief and cross,
which is factually incorrect. So far as the evidence of P.W.4 is
concerned, except for stating that the same cannot be given any
credence, no finding has been recorded as to why the version of
P.W.4 does not deserve consideration. Particularly, when the
P.Ws.3 and 4 being an independent eyewitnesses unrelated to the
deceased, their evidence would become very crucial and valid.
The evidence of both P.Ws.3 and 4 speak about the incident of
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MACMA. No.4131 of 2014
accident and that there were three vehicles involved when the
accident occurred. One is the car being driven by the deceased,
the second is the bullock cart which was carrying heavy load of
Palmyrah leaves and the third being the stationed lorry. The
evidence clearly speaks of the occurrence of the accident because
of the ramming of the car into the stationed lorry, the point of
contention is as to whether the bullock cart was proceeding in the
same direction as that of the car which was driven by the deceased
or was it on the opposite direction coming from Jangareddygudem
to Eluru. The evidence of P.W.3 categorically spoke that the
bullock cart was proceeding towards Jangareddygudem with
heavy load of Palmyrah leaves, it had completely blocked the road
view to the deceased who was also proceeding towards
Jangareddygudem and for that reason, he slowed down the car
and crossed i.e., overtook the Bullock Cart and dashed into lorry
stationed on middle of road, facing towards Eluru. Even P.W.4
also both in Chief and Cross examination spoke that Bullock Cart
with heavy load of Palmyrah Leaves came in opposite to the car
and after slowing down the car, crossed i.e., overtook the Bullock
Cart and dash into lorry stationed on the middle of the road. Both
witnesses spoke that the deceased car was ahead of the vehicles
in which they were travelling. The relevant part of evidences of
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MACMA. No.4131 of 2014
P.Ws.3 and 4 in Chief as well as Cross examination reads as
under:
“PW.3 – Chief Examination: On 04.01.2011 at about
10.15 pm myself and one Paulson were going in our Car
on Eluru – Jangareddigudem Road, we notice that Ford
Fiesta Car bearing Regn. No.AP 37AM 2552 was going
on Eluru – Jangareddigudem Road with moderate
speed in the meanwhile there was a bullock cart with
heavy load of Palmyrah leaves came in opposite to the
said Car. On seeing the same the said Ford Fiesta Car
slowed down to avoid the said bullock cart and blow horn
and gave light signals to caution the other coming
vehicles and crossed the bullock cart, but due to the
presence of stationed lorry bearing No.AP 21U 0090 in
the middle of the Road without parking lights on and
without exhibiting the parking signal infront of the vehicle
to caution the other vehicles and dashed against the
said stationed lorry. Due to the same, the Car was
rammed and crushed into the Lorry and Driver of the
said Ford Fiesta received serious injuries.
P.W.3 – Cross Examination: The lorry was coming from
Jangareddigudem towards Eluru. That lorry was
stationed by the time of accident. It is true ahead of the
car of the deceased one bullock cart was proceedings
towards Jangareddigudem. It is true while the car of the
deceased was over taken the proceeding with a load of
palmyra leaves.
13 RNT, J & CGR, J
MACMA. No.4131 of 2014
P.W.4 – Chief Examination: On 4-1-2011 at about 10.15
pm myself and one Gera Heram Ratna Praveen were
going in our Car on Eluru – Jangareddigudem Road, we
noticed that Ford Fiesta Car bearing Regn. No.AP 37AM
2552 was going on Eluru – Jangareddigudem Road with
moderate speed. In the meanwhile there was a bullock
cart with heavy load of Palmyrah leaves came in
opposite to the said Car. On seeing the same the said
Ford Fiesta Car slowed down to avoid the said bullock
cart and blow horn and gave light signals to caution the
other coming vehicles and crossed the bullock cart, but
due to the presence of stationed lorry bearing No.AP
21U 0090 in the middle of the Road without parking
lights on and without exhibiting the parking signal infront
of the vehicle to caution the other vehicles and dashed
against the said stationed lorry. Due to the same, the
Car was rammer and crushed into the Lorry and Driver
of the said Ford Fiesta received serious injuries.”
P.W.4: Cross – Examination: The bullock cart came opposite
to the car of the deceased. The lorry which was proceeding
from Jangareddigudem to Eluru was stationed on the road.
It is not true to suggest that the lorry was stationed on the
right side margin of the road towards Eluru.”
12. On close scrutiny and appreciation of afore statements of
P.Ws.3 and 4, in particular one extracted above, it is clearly
discernible that the deceased was driving the car and proceeding
towards Jangareddigudem and the Bullock Cart with heavy load of
14 RNT, J & CGR, J
MACMA. No.4131 of 2014
Palmyrah leaves was also proceeding towards Jangareddigudem
and the lorry was stationed on the road facing towards Eluru. In
the both Chief Affidavits, the statement made was that Bullock Cart
came in opposite to the car and that the car slowed down, blown
horn and gave light signals to caution other vehicles and crossed
the Bullock Cart and thereafter dashed against stationed lorry
which was parked in middle of the road without parking signals
indicating precautionary measures. The sequence so stated
clearly indicates that the Bullock Cart was opposite to the car which
expression necessarily need not be construed as coming in
opposite direction and the expression that the car has crossed
Bullock Cart would also mean overtaken the Bullock Cart. This
statement of expression has been further clearly explained in the
cross examination, leaves no manner of doubt that the accident
has taken place while the deceased overtook the Bullock Cart. The
Tribunal also has come to conclusion that the accident has taken
place while the deceased overtook the Bullock Cart.
13. The pleadings in claim petition states that Bullock Cart was
coming opposite to the Car and as it was carrying huge load of
Palmyrah leaves, the deceased slowed down the car and after
crossing the same suddenly noticed the stationed lorry in the
middle of the road without exhibiting any parking lights and dashed
15 RNT, J & CGR, J
MACMA. No.4131 of 2014
into the lorry. Though this was the version of claimants in the claim
petition, the evidence of P.Ws.3 and 4 – eye witnesses and the
Ex.A1 – FIR, Ex.A4 – Final report, Ex.X2 – inquest report
collectively go to show that the accident had occurred while the
deceased was trying to overtake the Bullock Cart dashed into the
stationed lorry. The Motor Vehicles Act being a beneficial
legislation enacted with the object of providing relief to the victims
or their families, while adjudicating claims under section 166, has
to be interpreted in favour of effected persons. In the present case,
though the claimants have pleaded that the accident occurred
while the car crossing the bullock cart which was coming in
opposite direction dashed into the stationed lorry, the evidence of
eye witnesses P.Ws.3 and 4 and FIR, Final Report and inquest
report go to show that accident had occurred while the car was
overtaking the bullock cart dashed into the stationed lorry. The
pleadings in the claim petition alone should not be taken into
consideration, rather the totality of evidence and documents on
record have to be considered for the purpose of ascertaining the
cause of accident and the persons who were at fault for attributing
negligence.
14. Hence, the vital question that has to be considered is as to
whether the stationing of lorry on the road without any precautions
16 RNT, J & CGR, J
MACMA. No.4131 of 2014
at night amounted to negligence on the part of driver of the lorry.
Therefore, the important aspect that needs to be considered is not
as to whether the car driven by the deceased was overtaking the
Bullock Cart which were in same direction or the car and Bullock
Cart were directionally opposite and upon crossing dashed into the
lorry which was behind the bullock cart, but rather the lorry which
is stationed on the road had displayed sufficient precautions such
as indicators, parking lights etc., enabling road traffic to notice that
the lorry was stationed and lagging, as the incident has occurred
during night at 10.15 pm for the purpose of assessing negligence.
15. The Tribunal came to conclusion that the lorry which indulged
in the accident was stationed on left margin of the road facing
towards Eluru and that the deceased driving the car going towards
Jangareddigudem could not control the speed of the car even after
seeing the lorry and dashed the same. The Court had rendered
two important findings one that the lorry was stationed on left
margin of the road facing towards Eluru and second that the
deceased drove the car in high speed and could not control even
after noticing the lorry and dashed into it and thereby, opined that
the negligence was solely attributable to the deceased. The
Tribunal lost sight of significant aspect that when the accident
occurred during night at 10.15 pm, the least it should have
17 RNT, J & CGR, J
MACMA. No.4131 of 2014
examined was whether the stationed lorry displayed any indicators
and parking lights to signal the vehicles commuting the said road.
The only person who could have deposed the same in support of
the above presumption would be the driver of the lorry, admittedly,
was not examined and the respondent insurance companies
except for pleading that there was no negligence on the part of the
driver of the lorry have miserably failed to examine any
independent witness or produce any documentary evidence in that
regard. The Tribunal also tried to justify the above presumption of
parking the lorry on the road margin sheerly relying on Ex.A4 final
report and Ex.A3 rough sketch. This presumption based on these
two exhibits to draw a conclusion that the lorry was on the outside
road margin, is not sufficient and there should be a positive
evidence from the driver of the lorry to indicate that the vehicle was
on the road margin and that too state highway was parked with
sufficient care and caution besides exhibiting necessary
precautions such as displaying parking lights etc.
16. When it is the admitted case of the either side that the
bullock cart was full of Palmyrah Leaves, which would obstruct the
front view to the vehicles either side and when it is crossed or
overtaken, unless there is a proper display of parking lights, it is
impossible for one to notice the stationed lorry just behind the
18 RNT, J & CGR, J
MACMA. No.4131 of 2014
bullock cart at such dark night. This Court finds that the evidence
of P.Ws.3 and 4, who are eye witnesses clearly spoke that lorry
was stationed on the road without taking any proper precautions
by displaying indicators, parking lights etc., to caution the other
vehicles plying on the said road. Nothing has been elicited from
them on this aspect in their cross-examination to disbelieve the
same. On this crucial aspect, there is no finding recorded by the
Tribunal, rather it proceeded on the basis that the deceased drove
the car in high speed and even after noticing the lorry dashed into
it. This finding of the Tribunal was only a guess work but not on
definitive evidence. Further, there is nothing on record to indicate
that the car was driven at an excessively high speed or that the
deceased driver failed to follow the traffic rules or drove on the
wrong side while dashing the stationed lorry. It is an admitted fact
of either side that the lorry was stationed, but as per the claimants
it was on the middle of the road and whereas as per insurance
company, it was on the road margin. Two independent
eyewitnesses P.Ws.3 and 4 spoke in support of the stand that the
lorry was stationed on the road and whereas on behalf of the
insurance company, no such evidence is available on record
except Ex.X3 rough sketch and final report under Ex.A4. We
cannot ignore the evidence of eyewitnesses P.Ws.3 and 4 and go
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MACMA. No.4131 of 2014
by the documentary evidence i.e., Ex.X3 and A4 alone to come to
conclusion that the lorry was on the road margin. When the bullock
cart with heavy load of Palmyrah Leaves was in front of the car
which the deceased was driving, it is for anybody’s imagination that
unless the vehicle in the opposite direction i.e., lorry stationed
either on the road or even on the margin of the road, has displayed
sufficient parking lights, indicators, it cannot be noticed at such a
short distance during night to avoid collision.
17. On the aspect of the burden of proof as to whether stationing
of an abandoned vehicle in the middle of the road or margin of the
road was beyond human control and appropriate precautionary
measures were in place, it is useful to refer to the following two
paras from the judgment rendered in Sushma v. Nitin Ganapati
Rangole3, which reads thus:
“33. These legal provisions leave no room for doubt that
the person in control of the offending truck acted in sheer
violation of law while abandoning the vehicle in the middle
of the road and that too without taking precautionary
measures like switching on the parking lights, reflectors or
any other appropriate steps to warn the other vehicles
travelling on the highway. Had the accident taken place
during the daytime or if the place of accident was well
illuminated, then perhaps, the car driver could have been
held equally responsible for the accident by applying the
rule of last opportunity. But the fact remains that there was
no illumination at the accident site either natural or
artificial. Since the offending truck was left abandoned in3
2024 AIR SC 4627
20 RNT, J & CGR, J
MACMA. No.4131 of 2014the middle of the road in clear violation of the applicable
rules and regulations, the burden to prove that the
placement of the said vehicle as such was beyond human
control and that appropriate precautionary measures
taken while leaving the vehicle in that position were
essentially on the person in control of the offending truck.
However, no evidence was led by the person having
control over the said truck in this regard. Thus, the entire
responsibility for the negligence leading to the accident
was of the truck owner/driver.
34. In view of the above discussion, the view expressed
by the High Court that if the driver of the car had been
vigilant and would have driven the vehicle carefully by
following the traffic rules, the accident may have been
avoided is presumptuous on the face of the record as the
same is based purely on conjectures and surmises.
Nothing on record indicates that the car was being driven
at an excessively high speed or that the driver failed to
follow the traffic rules. The High Court recorded an
incongruous finding that if the offending truck had not
been parked on the highway, the accident would not have
happened even if the car was being driven at a very high
speed. Therefore, the reasoning of the High Court on the
issue of contributory negligence is riddled with inherent
contradictions and is paradoxical.”
18. A similar issue was also considered in Adipudi
Rajyalakshmi‘s case (supra 2), in which the accident occurred at
07.30 p.m., wherein scooter rider had rammed into the truck which
was parked along the left side of the road and succumbed. The
court had concluded that even if the vehicle is parked on the road
margin without any parking lights and any indicators, the driver of
the said vehicle would be held negligent in parking the vehicle.
Inasmuch as it is not possible for drivers of vehicles passing
21 RNT, J & CGR, J
MACMA. No.4131 of 2014
through the road to observe the same and it is prone to accidents.
Even in the said case, the driver of the lorry was not examined.
19. The facts in the present case are more or less nearer to the
above said case and this Court finds that even if the lorry is parked
in the road margin, it was incumbent on the driver of the lorry to
apply the parking lights and indicators to indicate to the road traffic
that the lorry therein stationed, as the same is lagging. The
accident in the present case occurred at 10.15 pm during the night
where there was no illumination and the evidence on record clearly
demonstrate that the lorry was stationed without taking
precautionary measures like switching on the parking lights,
reflectors or any other appropriate steps to warn other vehicles
travelling on the said road. Therefore, it clearly constitutes
negligence on the part of the driver of the lorry, who was never
examined to disprove the above.
20. Occurrence of the accident on 04.01.2011 was undisputed
and so the death. In order to claim compensation, the claimants
have to first establish that there is an element of negligence on the
part of the driver of the offending vehicle. What all the claimants
were required to establish has to be decided on the touchstone of
preponderance of probability but not the standard of proof of
beyond reasonable doubt. In the present case, if the above
22 RNT, J & CGR, J
MACMA. No.4131 of 2014
principle is applied, the evidence of P.Ws.3 and 4 clearly
establishes that the lorry was stationed on the road without proper
parking indicators, lights and other required precautions and this
evidence has not been rebutted by examining the lorry driver,
therefore, by applying the above principles of burden of proof, it
can be concluded that the claimants have established their case
on the touchstone of preponderance of probability. Therefore, this
Court holds that the accident occurred because of the parking of
lorry on the road or road margin without any proper precautions
such as indicators, parking lights etc., which otherwise would have
been avoided. Therefore, this point is answered in favour of the
claimants.
Point No.II:
21. In N.Jayasree v. Cholamandalam Ms. General Insurance
Company Limited 4 , the Hon’ble Apex Court held that the
provisions of the Motor Vehicles Act, 1988, give paramount
importance to the concept of “just and fair” compensation. It is a
beneficial legislation which has been framed with the object of
providing relief to the victims or their families. Section 168 of the
MV Act deals with the concept of “just compensation” which ought
4
(2022) 14 SCC 712
23 RNT, J & CGR, J
MACMA. No.4131 of 2014
to be determined on the foundation of fairness, reasonableness
and equitability. Although such determination can never be
arithmetically exact or perfect, an endeavour should be made by
the Court to award just and fair compensation irrespective of the
amount claimed by the applicant(s).
22. Coming to the quantum of compensation as per the
judgment rendered in Sarla Verma and others5, for a claim made
under Section 166 of M.V. Act, in case of death, one has to
establish a) age of the deceased, b) income of the deceased and
c) number of dependants. The date of birth of the deceased as per
Ex.A7 has been considered by the Tribunal as 20.08.1971 and as
on the date of the accident, the deceased was aged 39 years,
which has not been controverted by the respondents. So far as the
income of the deceased is concerned, the Tribunal has assessed
the same as ₹25,000/- per month basing on the income tax returns
under Exs.A9, A10 and A11, which were for the period preceding
the accident. This Court considers that since the income of the
deceased has been assessed based on income tax returns which
are statutory documents and held to be reliable evidence to
determine the same in view of the judgments of the Apex Court in
K.Ramya and others v. National Insurance Company Limited
5
(2009) 6 SCC 121
24 RNT, J & CGR, J
MACMA. No.4131 of 2014
and another6, Malarvizhi and others v. United India Insurance
Company Limited and others 7 and Smt.Anjali and others v.
Lokendra Rathod and others 8 , this Court finds that income
assessed as ₹25,000/- per month is reasonable and proper.
23. Now coming to the aspect of the number of dependents,
when the claim has been instituted, there were five dependents
i.e., wife, two children, father and mother, however, during the
proceedings father has died. Though legal heirs of the deceased
father were joined as LRs as claimants 6 to 9, they can’t be
considered as dependents as there is no material placed on record
to show that all of them are dependent on the deceased.
Therefore, the number of claimants shall be confined as five as on
date of institution of the claim, and following Sarla Verma’s case
(supra) 1/4th of the income has to be deducted towards personal
and living expenses of the deceased.
Future Prospects:
24. The deceased was doctor and was aged 39 years i.e., under
40 years of the age. Following the judgment rendered in National
Insurance Company Limited v. Pranay Sethi and others9, as
6
2022 SCC OnLine SC 1338
7
(2020) 4 SCC 228
8
(2022) SCC OnLine SC 1682
9
(2017) 16 SCC 680
25 RNT, J & CGR, J
MACMA. No.4131 of 2014
per Para No.59.4, claimants are entitled to future prospects at the
rate of 40% on the income as determined above.
Conventional Head:
25. On the point of the conventional heads, as per the judgments
in Pranay Sethi‘s case (supra 9), Magma National Insurance
Company Limited v. Nanu Ram @ Chuhru Ram and others10,
Smt.Anjali (supra), United India Insurance Co. Ltd v. Satinder
Kaur @ Satwinder Kaur and Ors.11., and Rojalini Nayak and
Others v. Ajit Sahoo and Others 12 , we award the following
amounts under the conventional heads of Loss of Consortium,
Loss of Estate and Funeral Expenses, as ₹48,400/- (per claimant),
₹18,150/- and ₹18,150/- respectively as was awarded in Rojalini’s
Case (Supra 12).
Interest:
26. In Smt.Anjali and others‘s case (supra 9), the Hon’ble
Apex Court while referring to Malarvizhi‘s case (supra7), allowed
interest @ 9% per annum, respectively following the same, we
grant interest @ 9% per annum.
10
(2018) 11 SCC 780
11
(2021) 11 SCC 780
12
2024 SCC OnLine SC 1901
26 RNT, J & CGR, J
MACMA. No.4131 of 2014
27. Having considered the submissions made by both parties
and upon perusing the entire material on record, the claimants are
entitled for the compensation as mentioned below:
S.No. Description of the Head Amount Entitled
in rupees
Net Annual Income ₹25,000/- x 12 =
1
Rs.3,00,000/-
Future prospects ₹1,20,000/-
2
(at the age of 39 years) (i.e., 40% of the income)
Total Income ₹4,20,000/-
Deduction towards personal
3 ₹1,05,000/-
expenditure (i.e., 1/4th)
4 Total Annual Loss of Dependency ₹3,15,000/-
15 x ₹3,15,000/- =
5 Multiplier of 15 for the age of 39 years
₹47,25,000/-
Conventional Heads:
Rs.2,42,000/-
6 (i) Loss of consortium (5 claimants)
(₹48,400/- x 5)
(ii) Loss of Estate ₹18,150/-
(iii) Funeral expenses ₹18,150/-
7. Total Compensation ₹50,03,300/-
28. The next question that arises is as to who should bear the
liability of compensation either the insurance companies or the
owner of the vehicle. In the present case, the claim is made
against the 3rd respondent insurance company who insured the
lorry and 4th respondent, the insurer of the car. It is the case of the
27 RNT, J & CGR, J
MACMA. No.4131 of 20144th respondent that the policy under Ex.A19 covers only third-party
claims and any coverage of the risk of driver and passenger of the
car was on payment of additional premium and inasmuch as, the
deceased has paid premium of ₹100/- to cover only personal
accident claim besides damage to the car which was under
process, no further claim is maintainable against it. The Tribunal
found that even in the cross-examination of P.W.1, the same was
elicited and a separate claim has been made by the claimants, the
same was being processed, therefore, it has been held that the 4th
respondent cannot be held liable to pay any further compensation.
As the policy issued by the 3rd respondent covers the present
claim, the compensation awarded above shall be payable by the
3rd respondent.
29. In the result, this M.A.C.M.A. is allowed in the following
terms:
(i) Claimants/respondents are awarded compensation of
₹50,03,300/- as just and fair, with interest @ 9% per annum
thereon from the date of claim petition till realization.
(ii) The 3rd respondent shall deposit the amount as aforesaid
with interest and cost before the Tribunal within one month, failing
which the amount shall be recovered as per law.
28 RNT, J & CGR, J
MACMA. No.4131 of 2014
(iii) On such deposit being made, the mother of the deceased
i.e., claimant No.5 shall be entitled to withdraw 1/5th share of the
amount so deposited and the remaining 4/5th amount so deposited
shall be withdrawn by the deceased wife and children i.e.,
claimants 1 to 3 equally.
(iv) Parties shall bear their own costs throughout the
proceedings.
As a sequel, miscellaneous petitions pending consideration,
if any, in this case shall stand closed.
____________________
RAVI NATH TILHARI, J
_______________________
CHALLA GUNARANJAN, J
__ .01.2025
SS
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