IMPORTANT POINT
Contributory negligence cannot be assumed solely based on the absence of a driving license; clear evidence of negligence is required to establish liability.

JUDGMENT :

V. SRINIVAS, J.

1. This appeal is directed against the order of the Chairman, Motor Vehicle Accident Claims Tribunal-cum-VIII Additional District Judge at Vijayawada (hereinafter called as ‘the Tribunal’) in M.V.O.P. No. 459 of 2014 dated 30.07.2016.

2. The appellant is the insurer of the Lorry bearing No. AP 16 TV 1035 (hereinafter referred as “crime lorry”). The respondent Nos. 1 to 3 herein are the husband and children of one J. Vijaya Gowri (hereinafter called as ‘the deceased’). The respondent Nos. 4 and 5 are driver and owner/insured of the said crime lorry.

3. For the sake of convenience, the parties hereinafter referred to as they arrayed before the tribunal.

4. The case of the claimants, in the petition before the Tribunal is that:

(i) On 11.09.2014 at about 02.20 p.m. while the deceased along with 2nd claimant travelling on scooter as pillion rider and when they reached near Gn-Bible College, Opposite Kranthi Rolling shop Vijayawada, the crime lorry driven by its driver in a rash and negligent manner with high speed without blowing horn dashed right side of the scooter of the deceased, resulted, the deceased died on the spot.

(ii) The deceased was working as staff nurse at ESI hospital and getting salary of Rs.53,877/- per month. Being legal representatives and dependents, they claimed compensation of Rs.85,00,000/- against the driver, owner and insurer of the crime lorry.

5. The respondent Nos. 1 and 2/driver and owner remained e-xparte before the Tribunal.

6. The respondent No. 3/insurer of the crime lorry filed written statement denying the averments in the petition and pleaded that the concerned police failed to follow the mandatory provision of Section 158(6) of Motor Vehicles Act seeks prosecution under Section 147, 149 and 170 of the Act; that the compensation claimed by the claimants is excessive and thereby, prayed to dismiss the petition.

7. The Tribunal settled the following issues for enquiry basing on the material:

“1. Whether the deceased J. Vijaya Gouri died due to the rash and negligent driving of the driver of lorry bearing No. AP 16 TV 1035?

2. Whether the petitioners are entitled to any compensation? If so, to what amount and against whom?

3. To what relief?”

8. During enquiry, on behalf of the claimants, PWs. 1 to 3 were examined, Exs.A.1 to A.8, X.1 and X.2 were marked. On behalf of the respondent No. 3, the 1st respondent/driver was examined as RW-1, Exs.B.1 and B.2 were exhibited.

9. On the material, the Tribunal, having concluded that the accident occurred due to the negligent driving of the crime lorry by its driver as well 2nd claimant, apportioned their liability as 90% and 10% respectively, held that claimants are entitled for the compensation of Rs.66,01,508/- with interest at 7.5% per annum from the date of petition till the date of realization against the respondent Nos. 1 to 3, for the death of the deceased in the accident.

10. It is against the said order; this appeal was preferred by the insurer of the crime lorry.

11. Heard Sri Sk. Rafi, learned counsel representing Sri T.V.P. Sai Vihari, learned counsel for the appellant/insurer and Sri Battula Sanjaiah Gandhi, learned counsel for the respondent Nos. 2 and 3/claimants.

12. Sri Sk. Rafi, learned counsel representing Sri T.V.P. Sai Vihari, learned counsel for the appellant/insurer submits that the Tribunal ought to have taken contributory negligence @ 50% on the part of the rider of two wheeler, who is 2nd claimant and said to be minor, not having driving license to ride the same; that the Tribunal erred in taking the income of the deceased as Rs.55,290/- per month and it can be taken after deducting income tax as well education cess; that Tribunal ought not to have granted future prospects since the son of the deceased was given job on compassionate grounds; that the Tribunal failed to appreciate the material placed on record in proper