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 MACMA. No.4131 of 2014 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 2014 the 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 11 RNT, J & CGR, J 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 12 RNT, J & CGR, J 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 19 RNT, J & CGR, J 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 in 3 2024 AIR SC 4627 20 RNT, J & CGR, J MACMA. No.4131 of 2014 the 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 2014 4th 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