Andhra HC (Pre-Telangana)
G. Pitchaiah Naidu vs Apseb, Madakaira And Another on 20 November, 1999
Equivalent citations: 2000ACJ1348, 2000(1)ALD239, 2000(1)ALT245
ORDER
1. This Civil Miscellaneous Appeal is directed against the award made in OP No.49 of 1990 on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Anantapur, dated 11-11-1994, wherein the injured-appellant has filed a claim petition under Sections 92-A and 110-A of the Motor Vehicles Act, 1939 claiming compensation of Rs.1,25,000/-. The Tribunal awarded compensation of Rs.84,000/-. However, the Tribunal has attributed contributory negligence to the extent of 50% on the part of the inured-appellant and apportioned the amount to the extent of Rs.42,000/-.
2. Brief facts of the case are as follows:
On 2-3-1988 at about 12.30 p.m. the driver of the lorry bearing No.AAA 4252 belonging to the 1st respondent in the course of his employment drove the said lorry in a rash and negligent manner and dashed against the motor cycle bearing No.ADA 5670 belonging to the injured-appellant, who was riding the motor cycle at the time of the accident on the extreme left side of the road and as a result of which the injured-appellant and another received grievous injuries all over the body, near Ramdaspeta, Kanampalli cross on National Highway road No.7. Immediately after the accident, the injured-appellant was taken to the Government Hospital, Anantapur and from there he was taken to Vijaya Hospital for expert treatment and he was there in the hospital for about ten months and he incurred Rs.50,000/- towards medical treatment. He further stated that at the time of the accident, he was aged 35 years and drawing a monthly sum of Rs.3,000/-from contract works and Rs.20,000/- to Rs.30,000/- from agriculture. Due to the accident, he sustained compound fracture shaft of right humerus with radial nerve palsy.
3. The first respondent filed a counter denying the allegations including the income and negligent driving of the driver of the lorry and also the expenditure incurred by the injured-appellant towards medical treatment. The amount claimed is excessive and exhorbitant. The counter further states that the injured-appellant was himself negligent while driving the motor cycle and he had not taken reasonable precautions while driving the motor cycle and he has not sustained permanent disability. The vehicle in question is covered by a policy and the first respondent is not liable to pay compensation.
4. The second respondent also filed a counter denying the allegations including the accident and the petitioner having driving licence and contended that the petitioner was rash and negligent in driving the motor cycle and he has violated the road rules and came on wrong side and suddenly crossed the road. The accident is not due to the fault of the driver of the lorry. The 2nd respondent further denied the medical expenses incurred by the injured-appellant and contended that the amount claimed is excessive and exhorbitant and the liability of the Insurance company is subject to the terms and conditions of the insurance policy of the lorry.
5. On the above pleadings, the Tribunal has framed necessary issues for consideration. The first issue is whether the accident occurred due to the rash and negligent driving of the driver of the lorry bearing No.AAA 4252. To substantiate that issue, the injured-appellant has adduced both oral as well as documentary evidence. The injured-appellant was examined as PW1 and he deposed that on 2-3-1988 at about 12.30 p.m., he was driving a motor cycle from Yeddulapalli to Anantapur. He took two other persons as pillion riders. When he was proceeding on the motor cycle slowly on the left side of the road at National high way, the lorry bearing No.AAA 4252 came in the opposite direction in a rash and negligent manner at high speed and hit the motor cycle. The right front bumper of the lorry hit him on his right upper arm. The lorry proceeded upto the distance of 50 feet from the accident place. The other two persons also sustained injuries. PW3 is the pillion rider. He deposed that while the motor cycle was going on the left side of the road at a slow speed, the lorry in question came in the opposite direction in a rash and negligent manner at high speed and dashed against the motor cycle. The injured-appellant sustained fracture to his right hand exposing bone.
6. On behalf of the 1st respondent, RW1 was examined who was the driver of the lorry and he deposed that on 2-3-1988 at about 12.30 p.m., he was proceeding slowly and he found a motor cycle coming opposite to his vehicle and further he noticed three persons coming on the motorcycle in an unbalanced and at a high speed and the rider of the motor cycle was rubbing his left eye. In the cross-examination, RW1 admitted that he was going on a top gear at the time of the accident and the top gear will be put on if the vehicle was proceeding beyond 30 Kms. speed and the lorry stood at a distance of 30 feet away from the accident spot. With these oral evidence, the Tribunal has analysed the entire evidence on record and found that there is contributory negligence on the part of the injured-appellant to an extent of 50% and equally on the part of the driver of the lorry.
7. The learned Counsel for the appellant Sri O. Manoher Reddy vehemently contended that in the facts and circumstances of the case with the above evidence on record, the theory of contributory negligence cannot be attributed. RW1 the driver of the lorry deposed in his evidence that he was driving the vehicle at a high speed. Though the appellant-injured was at fault for having taken two persons as pillion riders, that fact by itself cannot contribute to his negligence to the accident. Further the finding arrived at by the Tribunal merely on the ground that the appellant was at fault for driving the vehicle without driving licence, that by itself cannot import and attribute the negligence as against the appellant-injured. To substantiate that contention, the learned Counsel for the appellant relied upon a decision reported in Mohinder Singh Soal and another v. Ramesh Kumar and others, . The relevant passage of the said decision is as follows:
"Contributory negligence is not to be presumed merely from the facts that Sukhwinder Singh did not hold a driving licence and that he was carrying more passengers on the vehicle than permitted under law. If Sukhwinder Singh was driving his motor cycle with due care and caution in that case it could not be held that he was liable for the contributory negligence. . At times, even most competent driver may be without a licence. For example, he may, by sheer inadvertence, have failed to have his licence renewed. Such a driver cannot be held to be negligent merely from the fact that he was driving without a licence. The matter is not res Integra. We have on this point the authoritative enunciation by Supreme Court in Gobald Motor Service Limited v. R.M.K.. Veluswmami, , and there are also two decisions of our own High Court Mansha Ram v. Tej Shan, (1957) 59 Punj LR 372, , and Dliaram Chand v. Shivpat, 1966 ACC CJ319."
8. The theory of contributory negligence will arise in a case where two vehicles collided with each other and the both the drivers were equally negligent in driving the vehicles without proper care and caution. But in the present facts and circumstances of the case, the theory of contributory negligence cannot be applied merely on the ground that the injured was at fault and he was not having a driving licence. I am in agreement with the contention advanced by the learned Counsel for the appellant, particularly in view of the fact that RW1 the driver of the lorry has stated in his evidence that he was driving the vehicle at high speed at the time of the accident and he stopped the vehicle at a distance of 30 feet away from the accident spot.
9. On the other hand, the learned Counsel for the respondents Sri Kota Subba Rao drew my attention to a decision reported in The Divisional Manager, Oriental Fire and General Insurance Company Limited, Guntur v. Nakkina Raju and others, . This case pertains to the collision of two vehicle and there is evidence establishing that drivers of both the vehicles were equally negligent for collision. In that view of the matter, the Court has applied the theory of contributory negligence. The relevant passage of the said decision is extracted hereunder:
"We may go back to Section 110-B wherein it is clearly stated that the claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim and may take an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them as the case may be. Thus, the statute casts a duty on the Tribunal to determine the amount of compensation and specify the amount which shall be paid by the insurer or owner or driver of the vehicles involved. In Karnataka State Road Transport Corporation v. Reny Mammen a Division Bench of the Karnataka High Court held that in the case of composite negligence, the liability of the drivers has to be to the extent of negligence of each one of the drivers and therefore he is answerable to the claim only to that extent and not more and constitutes the vicarious liability of his master/ owner of the vehicle, if any, also in the same proportion and that the liability of one cannot be foisted on the other. In some cases it is very difficult to find out which of the drivers is at fault and in such a case generally the Courts will conclude that both the drivers are at fault. But in the case of collision where there is evidence that both are equally negligent, it is desirable to apportion the liability among both the drivers by 50%: 50%".
10. The learned Counsel for the respondents also relied upon a decision reported in Andhra Pradesh State Road Transport Corporation v. M.K. Nayeemuddin, . The relevant passage of the said decision is extracted hereunder:
"When damages caused to both the vehicles in the accident occurred due to the negligence of the drivers of both the vehicles, the total damages of both the vehicles has to be assessed and the same has to be borne by both the parties in proportion to the guilt of each of the driver. Then it can be decided as to whether the plaintiff is entitled to any amount by way of compensaton and if so what amount. But if it is a case where damages was suffered by one side and that party is also contributorily negligent, deduction to the extent of the guilt of the said party, has to be made from the total amount assessed by way of compensation."
I have perused the above two decisions relied on by the learned Counsel for the respondents and those two decisions are not applicable to the facts of the present case.
11. In view of the evidence on record, I am of the view that the Tribunal has erred in deciding the first issue and imposing contributory negligence to the extent of 50% on the part of the appellant and the remaining 50% on the part of the driver of the lorry. The finding reached at by the Tribunal it regard to the first issue, in my view, is not just and proper in the facts and circumstances of the case. The theory of contributory negligence is not attracted in view of the decision reported in Mohinder Singh Sohal and another v. Ramesh Kumar and others (supra). Accordingly, I hold that the driver of the 1st respondent was rash and negligent in driving the vehicle and he was responsible for the accident.
12. As far as the second issue with regard to the assessment of compensation, the Tribunal has awarded a sum of Rs.84,000/- under various heads and by apportioning it equally, granted a sum of Rs.42,000/- to the injured-appellant. PW2 the Civil Assistant Surgeon has deposed in his evidence that the injured-appellant had a compound fracture shaft of right humorous with lacerated injury upto the elbow. He further deposed that the injured-appellant has got partial paralysis i.e., radial nerve palsy. On account of radial nerve palsy, he has got weakness of extension of wrist, thumb and fingers and he has no grip over his right hand and he has got permanent partial disability about 35%. The Tribunal has relied upon the evidence of PW2 and also considered the medical certificates Exs.A8 and Ex.A9. The appellant-injured has produced Exs.A11 to A122 medical bills to the effect that he underwent medical treatment and incurred medical expenses to an extent of Rs.47,000/-. The appellant has also claimed Rs.45,000/- towards loss of earnings, past and future. I am afraid I cannot exceed the limit if I consider and apply the multiplier method in the instant case. Therefore, I award Rs.47,000/- towards medical expenses; Rs.45,000/- towards loss of earnings past and future; Rs.15,000/-towards pain and suffering; Rs.5,000/-towards extra nourishment; Rs.1,000/-towards damages to the motor cycle and Rs.5,000/- towards transportation charges. In all, the appellant is entitled to a sum of Rs.1,18,000/- towards compensation. Accordingly the award of the Tribunal granting a sum of Rs.42,000/- towards compensation is hereby enhanced to Rs.1,18,000/-. The said amount shall carry interest at 12% p.a. from the date of petition till the date of realisation.
13. In the result, the appeal is allowed, but in the circumstances without costs.