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Monday, December 9, 2013

Accident claim - contributory negligence - applies only to drivers of vehicles and not applies to travelers/passengers in it - Profits of business alone is not the income of deceased that approach is a wrong approach - even the labour would fetch Rs.2,400/- per month with out any profit and loss system- 2,400 x 12 x 16 years= Rs.4,60,800/- enhanced compensation to as claimed by them as they claimed less compensation = G.Santhi Priya and others .. Appellants M/s. Andhra Trade Development Corporation Ltd., Guntur and others.. Respondens = published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10590

Accident claim - contributory negligence - applies only to drivers of vehicles and not applies to travelers/passengers in it - Profits of business alone is not the income of deceased that approach is a wrong approach - even the labour would fetch Rs.2,400/- per month with out any profit and loss system- 2,400 x 12 x 16 years= Rs.4,60,800/- enhanced compensation to as claimed by them as they claimed less compensation = LPA allowed

1) Whether it is the principle of composite negligence or contributory negligence, that needs to be invoked in this case?

The cause of the death of the deceased Sambasiva Rao was the intrusion of the
maruthi car into the lorry, which was said to have been slowed down suddenly. 
 In case the deceased was driving the maruthi car,
the concept of contributory negligence could certainly have been invoked.  By
its very nature, the principle gets attracted, only when a person, who sustained
injuries or died on account of accident, himself has contributed to the
accident. 
 Admittedly, the deceased was just a traveler in the maruthi car.  
He cannot be said to have contributed to the accident.  
Whatever may have been the justification for invoking that principle in the O.P., if any, filed by or on
behalf of the driver of the maruthi car, it cannot be invoked, in relation to
the appellants at all.  
2) Whether the compensation warrants any further enhancement?  
Before the Tribunal, the appellants have filed certain documents, namely, sales
tax assessment orders (Exs.A.7 to A.9), provisional certificate of the accused
(Ex.A.10), and commercial tax assessment orders (Exs.A.11 and A.12). On the  
basis of those documents, the Tribunal found the business turnover of the
deceased to be Rs.1,60,000/- per annum and, accordingly, the profit was taken at
Rs.10,000/- per annum. The contribution to the family was indicated at
Rs.5,000/- per annum, and the annual income was treated as Rs.5,000/-.  
We, however, find that the procedure adopted by the Tribunal is not at all correct.
The profit alone cannot be said to be the income.
Even for a person an ordinary labourer and where the element of profit does not
exist, the income would be, at least, Rs.2,400/- per month.  At that rate, the
annual income would be Rs.28,800/-.  The deceased was aged 32 years, at the time 
of his death, and the multiplier '16' gets attracted.  The relevant figure would
be Rs.4,60,800/-.  In addition to that, the loss of consortium needs to be
awarded to the 1st appellant.  However, the claim was made only for a sum of
Rs.2,50,000/-.  We, therefore, enhance the compensation to Rs.2,50,000/-. Out of
this, Rs.2,40,000/- shall be treated as loss of estate and Rs.10,000/- as loss
of consortium to the 1st appellant.  The point is, accordingly, answered.
The 1st appellant shall be entitled to Rs.1,00,000/- including consortium, the
2nd appellant is entitled to Rs.90,000/-, and the appellants 3 and 4  are
entitled to Rs.30,000/- each.  Uniformly, the Hon'ble Supreme Court has been
stipulating the interest at 7.5% per annum, in matters of this nature.
Therefore, the amount shall carry interest at 7.5% per annum, from the date of
the order passed by the Tribunal.  The liability of the 2nd respondent shall
stand restricted to Rs.15,000/- only, as provided under the relevant policy.

In the result, the Letters Patent Appeal is partly allowed, to the extent
indicated above. There shall be no order as to costs.


THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K. JAISWAL            

L.P.A.No.108 of 1996

25-11-2013

G.Santhi Priya and others .. Appellants

M/s. Andhra Trade Development Corporation Ltd., Guntur and others.. Respondens

Counsel for appellants : Sri T. Anand

Counsel for respondents 2 & 5 : Sri M. Srinivasa Rao

<GIST:

>HEAD NOTE:  

?CASES REFERRED : -------  

1) 2008 AILD 129 (SC)
2) 2005 (1) ACJ 588

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        
        AND    
THE HON'BLE SRI JUSTICE M.S.K. JAISWAL      

L.P.A.No.108 of 1996

JUDGMENT : (Per LNR,,J)  
One Sri G. Sambasiva Rao, resident of Guntur, traveled in a Maruthi Car bearing
No.ADG 8558 owned by the 1st respondent and insured with the 2nd respondent, to
Hyderabad.   When the car reached Choutuppal, it went under a Lorry bearing
No.ATS 126, driven by the 3rd respondent, owned by the 4th respondent and
insured with the 5th respondent, which is said to have been slowed down
suddenly.  As a result, Sambasiva Rao and two other inmates died on the spot,
and another person traveling in the car sustained injuries.

The wife, minor son and parents of the deceased Sambasiva Rao, the appellants
herein, filed O.P.No.79 of 1987 before the Motor Accident Claims Tribunal-cum-
Additional District Court, Nalgonda (for short 'the Tribunal'), claiming a sum
of Rs.2,50,000/- as compensation.  They pleaded that the death of Sambasiva Rao
occurred, on account of the rash and negligent driving of the drivers of the
vehicles.  The OP was opposed by the respondents.
Through its order, dated 05.04.1989, the Tribunal awarded a sum of Rs.89,200/-
as compensation, and apportioned the same among the appellants.  The liability
of the insurer of the maruthi car i.e., the 2nd respondent, was restricted to
Rs.15,000/-.  The liability was apportioned at 25% for the owner of the lorry,
and 75% for the owner of the maruthi car.   Interest at 12% per annum was
awarded. 

Feeling aggrieved by the decree passed by the Tribunal, the appellants filed
C.M.A.No.1691 of 1989 before this Court.

Through judgment, dated 07.09.1994, a learned Single Judge enhanced the 
compensation to Rs.1,40,000/-, and apportioned the same among the appellants. 
The apportionment of the liabilities, as directed by the Tribunal, was
maintained by the learned Single Judge.

This appeal is filed by the appellants, under Clause 15 of Letters Patent,
feeling aggrieved by the limited enhancement of the compensation by the learned
Single Judge.  According to them, the deceased was no way responsible for the
accident, and it is a case of invocation of principle of composite negligence.

Heard Sri T. Anand, learned counsel for the appellants, and Sri M. Srinivasa
Rao, learned counsel for both the Insurance Companies.  This Court has taken the
assistance of Sri Kota Subbarao, as amicus curiae.

The occurrence of the accident is not disputed, and before the Tribunal, the
death report of the deceased Sambasiva Rao (Ex.A.1), post-mortem report
(Ex.A.2), and the certified copy of F.I.R. in Crime No.58 of 1986 of P.S.
Choutuppal (Ex.A.5), were filed.  P.Ws.1 and 2 were examined, on behalf of the
appellants/claimants, and R.W.1 deposed, on behalf of the respondents.  The
Tribunal framed the relevant points, and answered them, as indicated in the
previous paragraphs.  The death was held to be squarely on account of the
accident, involving two vehicles.

Now, the points, that arise for consideration before us, are:

1) Whether it is the principle of composite negligence or contributory
negligence, that needs to be invoked in this case?
2) Whether the compensation warrants any further enhancement?  

POINT NO.1:
The cause of the death of the deceased Sambasiva Rao was the intrusion of the
maruthi car into the lorry, which was said to have been slowed down suddenly. 
 In case the deceased was driving the maruthi car,
the concept of contributory negligence could certainly have been invoked.  By
its very nature, the principle gets attracted, only when a person, who sustained
injuries or died on account of accident, himself has contributed to the
accident.
 Admittedly, the deceased was just a traveler in the maruthi car.  
He cannot be said to have contributed to the accident.  
Whatever may have been the justification for invoking that principle in the O.P., if any, filed by or on
behalf of the driver of the maruthi car, it cannot be invoked, in relation to
the appellants at all.
On the other hand, the principle of composite negligence
gets attracted.  Reference, in this context, may be made to the judgment of the
Hon'ble Supreme Court in T.O. Anthony Vs. Karvarnan and others1 as well as the
judgment of this Court in Syed Ibrahim Vs. The Union of India2.

Hence, we hold that the cause of the death of the deceased was the composite
negligence, on the part of the drivers of the maruthi car and the lorry, and the
liability of the owners as well as the insurers would be joint and several in
nature, and not of any particular percentage. 
The point is, accordingly, answered. 
POINT NO.2:
Before the Tribunal, the appellants have filed certain documents, namely, sales
tax assessment orders (Exs.A.7 to A.9), provisional certificate of the accused
(Ex.A.10), and commercial tax assessment orders (Exs.A.11 and A.12). On the  
basis of those documents, the Tribunal found the business turnover of the
deceased to be Rs.1,60,000/- per annum and, accordingly, the profit was taken at
Rs.10,000/- per annum. The contribution to the family was indicated at
Rs.5,000/- per annum, and the annual income was treated as Rs.5,000/-.  
We, however, find that the procedure adopted by the Tribunal is not at all correct.
The profit alone cannot be said to be the income.

Even for a person an ordinary labourer and where the element of profit does not
exist, the income would be, at least, Rs.2,400/- per month.  At that rate, the
annual income would be Rs.28,800/-.  The deceased was aged 32 years, at the time 
of his death, and the multiplier '16' gets attracted.  The relevant figure would
be Rs.4,60,800/-.  In addition to that, the loss of consortium needs to be
awarded to the 1st appellant.  However, the claim was made only for a sum of
Rs.2,50,000/-.  We, therefore, enhance the compensation to Rs.2,50,000/-. Out of
this, Rs.2,40,000/- shall be treated as loss of estate and Rs.10,000/- as loss
of consortium to the 1st appellant.  The point is, accordingly, answered.

The 1st appellant shall be entitled to Rs.1,00,000/- including consortium, the
2nd appellant is entitled to Rs.90,000/-, and the appellants 3 and 4  are
entitled to Rs.30,000/- each.  Uniformly, the Hon'ble Supreme Court has been
stipulating the interest at 7.5% per annum, in matters of this nature.
Therefore, the amount shall carry interest at 7.5% per annum, from the date of
the order passed by the Tribunal.  The liability of the 2nd respondent shall
stand restricted to Rs.15,000/- only, as provided under the relevant policy.

In the result, the Letters Patent Appeal is partly allowed, to the extent
indicated above. There shall be no order as to costs.

The Miscellaneous Petitions, if any, pending in the appeal shall stand disposed
of.
______________________  
L. NARASIMHA REDDY,  J.  
______________________  
M.S.K.JAISWAL,J.  
25th November, 2013

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