Andhra Pradesh High Court - Amravati
Davala Sesha Mahalakshmi 4 Ors vs Abdula Salam 5 Ors on 2 December, 2022
Author: U. Durga Prasad Rao
Bench: U.Durga Prasad Rao
HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
HON'BLE SMT. JUSTICE V. SUJATHA
MACMA No.2211 of 2011
JUDGMENT:(Per Hon'ble Sri Justice U. Durga Prasad Rao) Aggrieved by the order dated 21.03.2011 in M.V.O.P.No.591/ 2007 passed by the learned Motor Accidents Claims Tribunal-cum- Principal District Judge, West Godavari, Eluru dismissing the O.P., the claimants filed the instant appeal.
2. The claimants are the wife, children and parents of the deceased D.Kesava Rao. Their case is that the deceased was working as an Engineer in ITC company and getting monthly salary of Rs.34,875/- and he was offered a post of Assistant General Manager in Delta Paper Mills, Vendra at West Godavari. While so, on 17.12.2006, when the deceased was driving his Maruhti zen car bearing registration No.AP 28BD 9629 from Hyderabad to Vendra along with other inmates and when the Car reached Patangi village on NH road, he found a Navata Transport lorry bearing registration No.AP-7T-4869 was proceeding in front of him and the deceased gave signals and horn to the said vehicle in order to overtake the said 2 vehicle and the driver of the said vehicle had first slowed down the vehicle and when the deceased was overtaking the said Navata Transport lorry, in the meanwhile, the driver of the said lorry suddenly raised his speed and drove the lorry in a rash and negligent manner and hit the rear side bumper of the Maruthi zen car. As a result the deceased lost control over the car and hit the backside of the stationed lorry bearing registration No.AP-29U-1134. Thereby the Maruthi zen car was totally damaged and the deceased received fatal injuries and died instantaneously. The occupants of the Maruthi zen car also received injuries. On these pleas, the claimants filed M.V.O.P.No.591/2007 against the respondents 1 to 3 and 6, who are the driver, owner, Manager and insurer of the Navata Transport lorry bearing No.AP-7T-4869 and also against the respondents 4 and 5 who are the driver and owner of the stationed lorry bearing registration No. AP-29U-1134. The respondent No.6 is the insurer for the said lorry also. The claimants claimed Rs.30,65,000/- as compensation.
The respondents 1 to 5 remained ex parte and the 6th respondent / Insurance Company contested the O.P. on the main 3 ground that the deceased himself was responsible for the accident but not the drivers of both the lorries.
During trial, PWs 1 to 3 were examined and exhibits A1 to A10 were marked on behalf of the claimants, whereas the 6th respondent examined RWs 1 and 2 and produced exhibits B1 to B4. PW2 is an eye witness as he was travelling along with the deceased in the Car. He deposed before the Tribunal as if the drivers of both the lorries were responsible for the accident. However, the police during investigation recorded his statement under Sec.161 Cr.PC wherein he stated as if the deceased / car driver drove the car in a rash and negligent manner and dashed on the backside of the stationed lorry and as such he was responsible for the accident. In the cross examination, he admitted that he was examined by the police while he was undergoing treatment in Kamineni Hospital, Hyderabad and the contents of the statement recorded by the police are correct. Having regard to the dichotomy between his evidence and his earlier statement and in view of his admission regarding the correctness of his earlier statement, the Tribunal held that the accident was occurred due to the fault of the deceased himself. In view of the said finding, 4 though the Tribunal assessed the compensation to Rs.23,15,500/-, however, dismissed the claim on the ground that the deceased himself was responsible for the accident.
Hence, the MACMA.
3. Heard Sri Posani Venkateswarlu, Senior Counsel representing Sri B.Yuvraj, learned counsel for the appellants / claimants and Sri P.Suri Babu, Standing Counsel for 6th respondent-Insurance Company.
4. While severely fulminating the judgment of the lower Tribunal, learned Senior Counsel argued that the Tribunal committed serious blunder in accepting the Sec.161 Cr.P.C statement of PW2-eye witness-cum-injured to come to conclusion that the deceased drove the car in a rash and negligent manner and committed the accident. Learned Senior Counsel would submit that Sec.161 Cr.P.C. statement of PW2 cannot be treated as a substantive piece of evidence in the MVOP much less in the related criminal case itself. It is only the previous statement of PW2 during the investigation in criminal proceedings. Therefore, the said statement cannot be taken as a sole basis to plunge into the conclusion that the deceased himself was 5 responsible for the accident. He would further submit that in view of the divergent versions of PW2 i.e., one during the investigation stage of the crime and another during the trial in MVOP No.591/2007, at best the Tribunal ought to have discarded his evidence and looked into other reliable evidence to decide the issue as to whether the lorry drivers were at fault or the deceased being the driver of the car, himself was responsible for the accident. Learned counsel further argued that if the evidence of PW2 is omitted for the reason as stated supra, what is available is Ex.A4-Rough sketch showing location of the vehicles immediately after the accident. Of course, the evidence of RW2 - driver of the Navata Transport lorry bearing registration No.AP-7T-4869 is also available on record. Referring to Ex.A4- Rough sketch and the evidence of RW2, learned counsel would argue that admittedly the accident was occurred on NH9 highway which is a double road, and according to RW2, the deceased sought to overtake his lorry and he gave signal with his right hand allowing Maruti Zen Car to overtake him. Then referring to Ex.A4-Rough sketch, learned Senior Counsel would submit that after accident, all the vehicles were placed on the extreme left side of the road leaving wide margin to 6 their right side. Then learned Senior Counsel would submit that as per the Motor Vehicles Driving Regulations, when a vehicle is overtaken by another vehicle, the driver of the vehicle whose vehicle is being overtaken shall not increase speed so as to impede the overtaking vehicle's safe return to the left lane. Then again referring to Ex.A4-sketch, learned Senior Counsel would submit that if really the lorry driver maintained the lower speed than the speed of overtaking car and remained himself on the extreme left side of the road till the car returned to the left side of the road safely, the accident would not have occurred. On the other hand, RW2-Lorry driver on one hand indicated car driver to overtake him and while the car, after overtaking lorry, was about to turn to the left side, increased the speed of the lorry and thereby, in such awkward situation, the car driver lost control and hit the front bumper of the offending lorry and went and hit the backside of the stationed lorry. However, without considering these aspects which are emanating from the record, the Tribunal simply carried away by the Sec.161 Cr.P.C statement of PW2 and the final report filed by the police before the Criminal Court and held as if the deceased / car driver was guilty of the accident and 7 dismissed the MVOP. He thus prayed to allow the appeal and set aside the impugned judgment and award compensation to the claimants.
5. Per contra, learned Standing Counsel for 6th respondent - Insurance Company while supporting the order of the lower Tribunal argued that PW2 categorically admitted that the police have recorded his statement and contents of the said statement are correct. Learned counsel would submit that in his Sec.161 Cr.P.C. statement which was recorded within short time after accident, PW2 has clearly stated that the driver of the car in which PW2 was travelling, drove the car in a rash and negligent manner and while overtaking the Navata Transport Lorry, hit its front bumper and also went ahead and dashed on the rear side of a stationed lorry. The statements of other injured witnesses were also in similar lines and therefore, the police after investigation concluded that the deceased / car driver was responsible for the accident and ultimately filed the final report before the concerned Magistrate Court. The Tribunal has rightly considered the evidence available on record and it came to conclusion that the deceased was responsible for the accident and ultimately dismissed 8 the O.P. There is no legal flaw in the impugned order. He thus prayed to dismiss the appeal.
6. Points for consideration are:
(1) Whether the deceased being the driver of Maruti zen car was at fault or the drivers of Navata Transport Lorry bearing registration No.AP-7T-4869 and stationed lorry bearing No.AP-29U-
1134 were at fault in the accident ?
(2) If point No.1 is held in favour of claimants, whether they are entitled to compensation and if so, what amount ?
7. POINT No.1: We gave our anxious consideration to the arguments of either side. PW2 is the injured eye witness as he travelled in the ill-fated car along with the deceased. During trial he deposed that when their car passed Chowtuppal, they noticed Navata Transport lorry was going in front of their car towards Vijayawada. D. Kesava Rao, the driver of the car tried to overtake the Navata Transport lorry by blowing horn and giving the indications and the car had overtaken and proceeding towards left side. At that time, the 9 driver of Navata Transport Lorry instead of slowing down the lorry, increased the speed and hit the backside of the car, due to which the car was forced to go towards its further left side and hit a stationed lorry which was standing partially on the road. PW2 further stated that due to impact of the hit the driver of the car was fatally injured and died on the spot, whereas himself (PW2) and two others received grievous injuries. He avouched that the accident was occurred entirely due to rash and negligent driving by the driver of the Navata Transport Lorry and also the negligence on the part of the driver of the stationed lorry.
(a) Be that as it may, during investigation of crime relating to the accident, PW2 was examined in Kamineni Hospital, Hyderabad and his statement was recorded, wherein he stated as if the car driver was responsible for the accident. Accordingly, police filed final report in the Magistrate Court. The statement of PW2 is produced along with Ex.B3-final report in the Tribunal. During cross- examination of PW2, he admitted that his statement was recorded by the police in Kamineni Hospital, Hyderabad and contents of the statement recorded by the police are correct. In view of inconsistency 10 between his evidence and his previous Sec.161 Cr.P.C statement, the Tribunal discarded his evidence and mainly relied upon the final report and held as if the car driver was responsible for the accident and dismissed the O.P. After perusal of the entire record, we are unable to accept the finding of the lower tribunal.
8. As rightly argued by Sri Posani Venkateswarlu, learned Senior Counsel for appellants, statement of a witness U/Sec. 161 Cr.P.C is not a substantive evidence and its utility is very limited i.e., it can be used for contradicting the witness if he gave evidence in the concerned criminal proceedings. However, Sec.161 Cr.P.C statement itself cannot be treated as a substantive piece of evidence. In the instant case the truth is that PW2 has given divergent versions regarding the cause of accident i.e., in his evidence before the Tribunal he deposed as if the lorry drivers were responsible for the accident, whereas in his statement before the police he stated as if the car driver was responsible for accident. It is true that basing on the said statement of PW2 and other witnesses, the police filed final report stating that the car driver was at fault. In our view Sec.161 statement of PW2 and Ex.B3-final report alone cannot be taken to 11 decide the guilt of any particular driver in the MVOP. We have to look into the entire evidence placed before the Tribunal to decide the issue.
(a) PW2 is concerned, since he presented two divergent versions, his evidence has to be discarded for lack of consistency. Then we have to look into the Ex.A4-rought sketch of scene of offence and also the evidence of RW-2-driver of Navata Transport lorry who was examined by the insurance company. When both of them are conjunctively studied, we will find, in the cross examination of RW-2 he admitted that before accident the Maruthi zen car was proceeding from Hyderabad towards Vijayawada and he gave signal with his right hand allowing the Car to overtake him and accordingly Maruthi zen car overtook his lorry. He of course, denied the suggestion that due to his rash and negligent driving the accident was occurred.
(b) Then Ex.A4 shows that immediately after the accident all the vehicles were located on the extreme left side of the road leaving a wide margin towards their right side. So, a conjunctive study of the evidence of RW-2 and Ex.A-4 would show that when the Navata 12 Transport lorry driver was proceeding on his left side and on seeking Maruthi zen car coming behind him seeking to overtake the lorry, the lorry driver gave signal to the car driver to overtake. Be that as it may, regulation No.14(9) of the of Motor Vehicles (Driving) Regulations, 2017 reads thus:
"14((9) If a vehicle is overtaking another vehicle, the driver of the vehicle being overtaken shall not increase its speed or impede the overtaking vehicle's safe return to the left lane."
(c) In the light of above regulation and having regard to the evidence available on record, a doubt would arise, if driver of Navata transport lorry followed above regulation and maintained a slow speed than the car to enable it to return to the left side safely, whether there was an occasion for the car to go to its extreme left side and hit its front stationed lorry. Thus the principle of res ipsa loquitur which can be pressed into service from the evidence of RW2 and Ex.A4, would show that unless the lorry driver committed some act of rash and negligence, the accident would not have happened and the car driver might have passed both the vehicles and proceeded safely. It must be noted at this juncture that it is nobody's case that while the 13 car was overtaking the Navata transport lorry, some vehicle was coming from the opposite side and observing the same, the car driver hurriedly tried to return to the left side lane and in that process went and dashed the stationed lorry. So in the present scenario, in our view, the principle of res ipsa loquitur can be pressed into service. The Hon'ble Apex Court in Shyam Sunder v. The State of Rajasthan's1 case discussed about the application of res ipsa loquitur. It observed thus:
"10. The maxim is stated in its classic form by Erle, CJ: Scott Vs. London & St. Katherine Docks (1865) 3 H & C 596, 601:
...Where the thing is to shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."
(d) Applying the above principle to the present case, the facts would show that admittedly the lorry driver gave signal to the car driver to overtake him. Then as per Regulation No.14(9) it is the duty of the lorry driver to slow down his vehicle to enable the car to 1 AIR 1974 SC 890 = MANU/SC/0208/1974 14 completely overtake him and to safely return to its left side. Unless the lorry driver increased the speed of his vehicle, in normal circumstances there was no occasion for the car driver to swerve to his left side and hit the front bumper of the said lorry and move forward and hit the stationed lorry. Therefore, though RW2-lorry drier deposed as if the car driver was responsible for the accident, the circumstances clearly depict that the lorry driver contributed for the said accident. Of course, there may be some amount of fault on the part of the car driver also in the sense that when the lorry driver increased his speed suddenly, the car driver, instead of overtaking the said vehicle and going towards left side, ought to have slowed down his vehicle and remained on his right side so as to avoid hitting the over speeding lorry.
(e) Thus in the entire episode we find that both Navata transport lorry driver as well as deceased car driver were responsible for the accident and their liability is 50:50. However, the driver of the stationed lorry cannot be held liable.
This point is answered accordingly.
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9. POINT No.2: In view of finding in Point No.1 we hold that the claimants are entitled to compensation. The quantum of compensation is concerned, we noticed that the Tribunal has correctly assessed the compensation at Rs.23,15,500/- and hence we confirm the said amount. Since the deceased contributed by 50% in the resultant accident, the claimants are entitled to only half of the aforesaid amount i.e., Rs.11,57,750/- with proportionate costs and interest @ 7.5% p.a. The respondents 1 to 3 who are the driver, owner and operator of the offending Navata transport lorry bearing registration No.AP-7T-4869 are liable to pay the aforesaid compensation. Consequently respondents 4 to 6 are found not liable to answer the claim.
10. In the result:
(i) MACMA No.2211 of 2011 is partly allowed and the order in MVOP No.591/2007 passed by MACT-cum-
Principal District Judge, West Godavari at Eluru is set aside and the claimants are held entitled to compensation of Rs. 11,57,750/- with proportionate costs and simple 16 interest at 7.5% p.a from the date of MVOP till the date of realization.
(ii) Respondents 1 to 3 in the above O.P are directed to deposit the compensation amount within two months from the date of this judgment, failing which claimants will be at liberty to take out execution against them.
(iii) The appeal is dismissed so far as respondents 4 to 6 are concerned.
As a sequel interlocutory applications, if any pending, shall stand closed.
__________________________ U. DURGA PRASAD RAO, J ______________ V. SUJATHA, J 02.12.2022 krk 17 HON'BLE SRI JUSTICE U.DURGA PRASAD RAO AND HON'BLE SMT. JUSTICE V. SUJATHA M.A.C.M.A. No.2211 of 2011 02.12.2022 krk