HON’BLE SRI JUSTICE C.V.BHASKAR REDDY M.A.C.M.A.No.748 of 2019

JUDGMENT:

This appeal is filed by the appellants/claimants challenging the award dated 11.08.2014 passed in O.P.No.413 of 2011 by the Chairman, Motor Accidents Claims Tribunal–cum–District Judge, Nizamabad (for short “the Tribunal”), whereby the Tribunal awarded a total compensation of Rs.4,20,000/- after deducting 50% on the ground of contributory negligence.

2. For the sake of convenience, hereinafter, the parties will be referred to as they were arrayed before the Tribunal.

3. The case of the claimants is that on 02.01.2011, at about 9:00 PM, the deceased Pavar Bhim Rao @ Bheemudu was travelling on a motorcycle bearing No.AP 15 Q 6676 as a pillion rider, driven by one Guguloth Ravi from Munipally Thanda towards Sampathly Village and when they reached the outskirts of Nakka Thanda, a Combine Harvester bearing No. AP 15 AC 9785 was found negligently parked in the centre of the road without any indicators or warning signs, due to which the motorcycle collided with the harvester, resulting in instantaneous death of both persons. Claiming compensation of Rs.10,00,000/- the claimants filed the aforesaid O.P against the respondent Nos.1 and 2 i.e, owner and insurer of the crime vehicle.

4. The respondent No.1 remained ex parte. The respondent No.2 filed counter affidavit and contended that the accident occurred due to rash and negligent driving by the driver of the motorcycle and ultimately prayed to dismiss the claim petition.

5. The Tribunal, on appreciation of oral and documentary evidence, held that the harvester was parked negligently in the middle of the road, but attributed 50% contributory negligence to the deceased and the motorcycle rider. It assessed total compensation at Rs.8,40,000/-, but awarded only Rs.4,20,000/-.

6. Heard the learned counsel for both sides and perused the record.

7. The learned counsel for the appellants contended that the finding of contributory negligence is wholly unsustainable in view of the clear evidence of PW2, Ex.A.1-First Information Report (FIR), Ex.A.2-charge sheet, and Ex.A.6-rough sketch, all showing that the accident occurred solely due to the illegal parking of the harvester. It is submitted that the insurer produced no evidence to prove contributory negligence. It is further submitted that though the age of the deceased was 32 years, the Tribunal applied multiplier ‘15’, whereas the correct multiplier as per the decision in Smt.Sarla Varma vs Delhi Transport Corporation¹ is ‘16’.

2009(6) SCC 121

8. On the other hand, learned Standing Counsel for the Insurance Company supported the impugned award and submitted that the Tribunal rightly considered the contributory negligence. It is submitted that as per the principles laid down by the Hon’ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others, 2017 ACJ 2700, the claimants are entitled to only Rs.84,000/- under conventional heads but the Tribunal erroneously awarded Rs.2,25,000/- and ultimately prayed to dismiss the appeal.

9. As seen from the material placed on record, Ex.A1-FIR and Ex.A2-charge sheet clearly establish that the harvester was negligently parked in the middle of the road without any indicators or precautionary measures. PW2, an eyewitness, supported the same. Ex.A6-rough sketch also depicts that the harvester stationed across the road. The insurer did not produce any evidence to rebut these findings. The Tribunal’s assumption of equal negligence is not supported by any material. Therefore, the finding of contributory negligence is set aside.

10. With regard to the multiplier, the Tribunal recorded the age of the deceased as 32 years based on Exs.A.2 and A3 (inquest report) as well as the evidence of PWs.1 and 2. It is the contention of the claimants that the appropriate multiplier for the age of 32 years is ‘16’ as per Sarla Verma’s case (supra), but the Tribunal erroneously

adopted multiplier ‘15’. Once the age of the deceased is established a