T. Narayan Singh and anr. Vs. Shameem and anr. - Court Judgment

Excerpt:
- - if not the injured, who could be a better witness for the accident?orderneelam sanjiva reddy, j.1. claimants in o.p.957/ 89 on the file of the motor accidents claims tribunal-cum-addl. chief judge, city civil court, hyderabad, dissatisfied with the compensation awarded, preferred this appeal.2. facts necessary for disposal of this appeal briefly stated are these:-on 18-10-1989 at about 4.30p.m., bhuvaneshwar singh (hereinafter referred to as the deceased) and his cousin tulja singh (p.w.2) were proceeding on a cycle. when they reached dharul salam near ek minar masjid, the lorry apf 1272, driven in a rash and negligent manner, dashed the cyclists resulting in the death of bhuvaneshwar singh and injuries to p.w.2. it was pleaded that the deceased, aged about 22 years, was working with maruthi plastics, balanagar on a monthly remuneration of rs. 1,000/-. parents of the deceased preferred the above claim for a total compensation of rs. 1,00,000/- from the owner and insurer of the lorry involved in the accident. the claim was resisted. the tribunal, after due enquiry, found that the accident was not caused due to rash and negligent driving of the lorry apf 1272 by its driver and consequently awarded a compensation of rs. 25,000/- under 'no fault liability'.3. mr.k. subba rao, learned counsel for the appellants submits that there is abundant evidence to establish that the accident was caused due to rash and negligent driving of the lorry by its driver and the tribunal committed a grave error in its contrary finding and the compensation claimed is less than the just and reasonable compensation and requests for awarding the whole of the compensation amount claimed.4. p.w.2 is the pillion rider of the cycle, who survived in the accident. admittedly, he sustained injuries. his presence cannot be disputed. his evidence is that the accident occurred due to rash and negligent driving of the lorry by its driver and not due to any losing of balance of the cycle by the deceased. the tribunal discarded the evidence mainly on the ground that it was only a self-serving statement as he himself filed another claim petition claiming damages for the injuries caused to him. i am of the view that the reason given for rejection of the testimony of p.w.2 does not appear to be correct. if not the injured, who could be a better witness for the accident? further, if the accident was not caused due to rash and negligent driving of the lorry by its driver, the respondents could have examined the driver to rebut the testimony of p.w.2. in the absence of evidence of the driver, i do not find any reason to discredit the testimony of p.w.2. moreover, the evidence of p.w.2 cannot be rejected merely on the ground that there was no head-on-collision between the lorry and the cycle and that the cycle and lorry came into contact on a side. one cannot rule out an accident in which a lorry and a cycle coming in contact on a side, in case of negligence of the driver of the lorry. for the above reasons, i am of the opinion that the accident was caused only due to rash and negligent driving of the lorry by its driver and not due to any negligence on the part of the deceased.5. the deceased died unmarried. among the parents, mother is younger, and aged about 40 years. the evidence of p.ws.1 and 2 is that he was earning about rs. 1,000/- p.m. working with maruthi plastics, balanagar. there is no documentary evidence to establish the income of the deceased. in the absence of documentary evidence, and considering the minimum wages of a labourer, i am inclined to fix his monthly income at rs. 850/-. he would have contributed 2/3 rds of it to his family after meeting his personal living expenses. loss of dependency calculated on a multiplier of 12.79, which is appropriate to the age of the mother, comes to rs. 86,972/-, to which is added the usual award towards loss of estate in a conventional sum of rs. 15,000/-. however, the compensation is restricted to rs. 1,00,000/- as the claim is for that amount only.6. mr.a.v.k.s. prasad, learned counsel for the respondents submits that the mother is not entitled to any compensation on account of loss of estate, when her husband is alive. i do not find any substance in his contention.7. in the result, the appeal is allowed with costs. the respondents shall pay the compensation of rs. 1,00,000/- with interest at 12% p.a. from the date of petition till payment. both the appellants are equally entitled to the compensation amount. the compensation amount awarded shall be paid/ deposited as per the guidelines detailed by the supreme court in the general manager, kerala state road transport corporation, trivandrum v. mrs. susamma thomas and ors. : air1994sc1631

Judgment:
ORDER

Neelam Sanjiva Reddy, J.

1. Claimants in O.P.957/ 89 on the file of the Motor Accidents Claims Tribunal-cum-Addl. Chief Judge, City Civil Court, Hyderabad, dissatisfied with the compensation awarded, preferred this appeal.

2. Facts necessary for disposal of this appeal briefly stated are these:-

On 18-10-1989 at about 4.30p.m., Bhuvaneshwar Singh (hereinafter referred to as the deceased) and his cousin Tulja Singh (P.W.2) were proceeding on a cycle. When they reached Dharul Salam near Ek Minar Masjid, the lorry APF 1272, driven in a rash and negligent manner, dashed the cyclists resulting in the death of Bhuvaneshwar Singh and injuries to P.W.2. It was pleaded that the deceased, aged about 22 years, was working with Maruthi Plastics, Balanagar on a monthly remuneration of Rs. 1,000/-. Parents of the deceased preferred the above claim for a total compensation of Rs. 1,00,000/- from the owner and insurer of the lorry involved in the accident. The claim was resisted. The tribunal, after due enquiry, found that the accident was not caused due to rash and negligent driving of the lorry APF 1272 by its driver and consequently awarded a compensation of Rs. 25,000/- under 'no fault liability'.

3. Mr.K. Subba Rao, learned Counsel for the appellants submits that there is abundant evidence to establish that the accident was caused due to rash and negligent driving of the lorry by its driver and the Tribunal committed a grave error in its contrary finding and the compensation claimed is less than the just and reasonable compensation and requests for awarding the whole of the compensation amount claimed.

4. P.W.2 is the pillion rider of the cycle, who survived in the accident. Admittedly, he sustained injuries. His presence cannot be disputed. His evidence is that the accident occurred due to rash and negligent driving of the lorry by its driver and not due to any losing of balance of the cycle by the deceased. The Tribunal discarded the evidence mainly on the ground that it was only a self-serving statement as he himself filed another claim petition claiming damages for the injuries caused to him. I am of the view that the reason given for rejection of the testimony of P.W.2 does not appear to be correct. If not the injured, who could be a better witness for the accident? Further, if the accident was not caused due to rash and negligent driving of the lorry by its driver, the respondents could have examined the driver to rebut the testimony of P.W.2. In the absence of evidence of the driver, I do not find any reason to discredit the testimony of P.W.2. Moreover, the evidence of P.W.2 cannot be rejected merely on the ground that there was no head-on-collision between the lorry and the cycle and that the cycle and lorry came into contact on a side. One cannot rule out an accident in which a lorry and a cycle coming in contact on a side, in case of negligence of the driver of the lorry. For the above reasons, I am of the opinion that the accident was caused only due to rash and negligent driving of the lorry by its driver and not due to any negligence on the part of the deceased.

5. The deceased died unmarried. Among the parents, mother is younger, and aged about 40 years. The evidence of P.Ws.1 and 2 is that he was earning about Rs. 1,000/- p.m. working with Maruthi Plastics, Balanagar. There is no documentary evidence to establish the income of the deceased. In the absence of documentary evidence, and considering the minimum wages of a labourer, I am inclined to fix his monthly income at Rs. 850/-. He would have contributed 2/3 rds of it to his family after meeting his personal living expenses. Loss of dependency calculated on a multiplier of 12.79, which is appropriate to the age of the mother, comes to Rs. 86,972/-, to which is added the usual award towards loss of estate in a conventional sum of Rs. 15,000/-. However, the compensation is restricted to Rs. 1,00,000/- as the claim is for that amount only.

6. Mr.A.V.K.S. Prasad, learned Counsel for the respondents submits that the mother is not entitled to any compensation on account of loss of estate, when her husband is alive. I do not find any substance in his contention.

7. In the result, the appeal is allowed with costs. The respondents shall pay the compensation of Rs. 1,00,000/- with interest at 12% p.a. from the date of petition till payment. Both the appellants are equally entitled to the compensation amount. The compensation amount awarded shall be paid/ deposited as per the guidelines detailed by the Supreme Court in the General Manager, Kerala State Road Transport Corporation, Trivandrum v. Mrs. Susamma Thomas and Ors. : AIR1994SC1631