HONOURABLE SRI JUSTICE SUJOY PAUL AND HONOURABLE SRI JUSTICE N. TUKARAMJI M.A.C.M.A. No.335 OF 2020

JUDGMENT:

(per Hon’ble Sri Justice N. Tukaramji)

We have heard Mr. A. Ramakrishna Reddy, learned counsel for the appellant/respondent No.3 and Mr. Chalakani Venkat Yadav, learned counsel for the respondents/claim petitioners.

2. Aggrieved by the fastened liability and the compensation amount awarded, the respondent No.3/insuer preferred this appeal against the decree and order dated 04.12.2019 in M.V.O.P.No.302 of 2017 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-Principal District Judge, Nalgonda.

3. For convenience, the appellant and respondents are hereinafter referred to as per their array before the tribunal.

4. The claim petitioners/respondents 1 to 5 (hereinafter, (‘the petitioners’) filed petition seeking compensation of Rs.25 lakhs for the death of Mr.Vaddepally Bixam/deceased in a motor accident on 12.01.2017. In the claim petition it has been averred that, while the deceased, as driver of the lorry along with cleane/PW-2 was proceeding to Hyderabad with a load of poultry feed, in the outskirts of Gattugudem village at about 4 a.m. rammed his vehicle into a lorry bearing registration No.AP-05-TA-8539 (for short, ‘the stationed lorry’) which was stationed in the middle of the road without any precautionary indications. In the accident the deceased suffered fatal injuries and succumbed. Thereupon the claim petition has been filed against the parked lorry contending its negligent parking. The tribunal after perusing the materials awarded compensation of Rs.30,94,000/- with interest at 9% per annum from the date of the petition till realization against the owner and insurer of the stationed lorry.

5. In appeal, the learned counsel for the insurer contended that, on scrutiny of record, by applying the principle of res ipsa loquitor the tribunal had rightly concluded the contributory negligence of the deceased in the accident. Having recorded the contributory negligence, the tribunal ought to have apportioned the liability on both the vehicles. Consequently the insurer should have been made liable to pay compensation only to the extent of the liability fastened. Further pleaded that, the tribunal without any material erroneously believed the monthly income of the deceased at Rs.15,000/-, on higher side. Thus the assessment requires interference.

6. Per contra, the learned counsel for the petitioners would submit that the tribunal without any basis and substantive evidence made an observation against the deceased on contributory negligence. Therefore, the tribunal was proper in fixing the liability on the owner and insurer of the crime lorry. Furthermore, though the petitioners claimed monthly income at Rs.20,000/- as driver of a heavy goods vehicle, beyond any rationale monthly income has been restricted to Rs.15,000/-.

Hence prayed for granting just compensation.

7. The submissions of learned counsel are duly considered and we have perused the material on record.

8. It is evident that the accident occurred as the deceased rammed his vehicle into the parked lorry. The tribunal considering the record observed that (a) PW-1 i.e. the wife of the deceased though not an eyewitness admitted that the lorry driven by her husband collided with another lorry, which was parked on the road side; (b) PW-2 also admitted the deceased’s lorry hitting the rear portion of the other lorry; (c) the deceased could not have controlled the vehicle as he was driving the lorry at high speed and (d) there is no evidence showing whether the stationed lorry was properly parked with precautions and safety measures. Nonetheless, concluded that, it is a fit case to apply the doctrine of contributory negligence.

9. In the light of the indisputable facts of accident the pertinent question for inquiry should be, whether there was any rash or negligence in parking the lorry and whether there is any rash and negligence of the deceased in driving the