JUDGMENT :

U. Durga Prasad Rao, J.

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 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 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, 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