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Andhra High Court
Divisional Manager, Apsrtc, … vs Zaheera Begum And Others on 29 September, 2000
Equivalent citations: 2002 ACJ 1804, 2000 (6) ALD 457, 2000 (6) ALT 408
Bench: G Mohammed


ORDER

1. This appeal is preferred by the APSRTC against the award of the Tribunal in OP No.625 of 1989 dated 12-12-1991 contending that the deceased was partly responsible for the occurrence of the accident as he has crossed the road without due care and caution. The dependents of the deceased filed OP 625 of 1989 under Section 166 of the Motor Vehicles Act claiming a compensation of Rs.3,00,000/- and on appreciation of facts and circumstances and evidence on record the Tribunal granted a sum of Rs.2,00,000/-together with interest of 12%. The brief facts of the case are as follows:

That on 26-7-1989 the deceased was going to Fateh Maidan for football practice and while crossing the road in front of Harsha Hotel at Nampally at 2-30 p.m., a bus bearing No.AAZ 3580 proceeding from Gandhi Bahvan towards Public Garden driven in a rash and negligent manner dashed against the deceased, as a result the deceased received multiple injuries all over the body and was shifted to Osmania General Hospital where on the same day at 3.50 p.m., he was declared as dead. It is stated that the deceased was 36 years old and was working as Head Constable in the office of the Deputy Commissioner, CAR Head quarters, Hyderabad drawing a monthly salary of Rs.2060/- and was hale and healthy at the time of accident.

2. Respondents filed counter-affidavit contending that the APSRTC is a statutory body which can sue or be sued in its name represented by the Chairman and Managing Director, as the respondent is not properly described, the suit is not maintainable. It also denied the rash and negligent driving of the driver of the bus and stated that while crossing the road from right to left, the deceased was hit by Lorry bearing No.APT 6384 which was proceeding towards Gandhi Bhavan and fell on the right side rear of the bus, thus it is contended that

there was no rash and negligent driving on the part of the bus driver and that the respondent corporation is not liable to pay the compensation. It also disputed the age and earnings of the deceased. It is further stated that the claimants ought to have impleaded the driver of the lorry for claiming the compensation.

3. On the above pleadings, necessary issues were framed for consideration. To substantiate their contentions, the claimants adduced both oral and documentary evidence, PW1 is the wife of the deceased, PW2 is an eye-witness and co-employee of the deceased and marked documents Exs.A1 to A6. On behalf of respondent RW1 who is driver of the bus in question, and RW2 who is an eye-witness to the accident and was travelling in a bus, were examined and no documents were marked.

4. On appreciation of the evidence on record, the Tribunal believed the version of PW2 and disbelieved the version of RW2 observing that she came to the Court to give evidence at the instance of RW1, and held that the accident occurred due to the rash and negligent driving of the driver of the bus and granted a total compensation of Rs.2,00,000/-.

5. Learned Counsel for appellant Smt. Nanda R. Rao vehemently contended that the entire approach of the Tribunal is wrong and that the Tribunal failed to notice the act of the deceased while crossing the road and contended that the driver of the bus was acquitted in the criminal Court and submitted that the same has persuasive value. It is further contended that in the circumstances of the case, the Tribunal ought to have applied the principle of contributory negligence and she has drawn my attention to the judgment of Apex Court in Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh, 2000 (5) Scale, which was a case where a

passenger boarded the bus and when the bus moved forward, she fell out of the vehicle and rear wheel of the bus ran over her and the Apex Court held as follows:

“It is wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus.”

6. Learned Counsel for appellant has further drawn my attention to the judgment of the Apex Court in Mahadeo Hari Lokre v. The State of Maharashtra, , wherein the Apex Court held as follows:

“If a pedestrian suddenly crosses a road without taking note of the approaching bus there is every possibility of driver dashing against the bus without the driver becoming aware of it. The bus driver cannot save accident however slowly he may be driving and therefore he cannot be held to be negligent in such a case.”

7. Learned Counsel for appellant
further contended that the discussion of the Tribunal is unnecessary with regard to the issue whether the respondent is properly described in the cause title, and that the Tribunal ought not to have given credence to the version of PW2 as he is also an interested witness, i.e., co-employee of the deceased.

8. On the other hand, learned Counsel for claimants respondents Mr. K.L.N. Rao

contended that the Tribunal has noticed the act of the deceased while crossing the road and rightly relied upon the evidence of eye-witness PW2 whose version is in corroboration with the contents of Ex.A1 and that the Tribunal has rightly held that the accident occurred due to rash and negligent driving of the driver of the bus and contended that there is no justification in contending that the deceased also contributed to the occurrence of the accident.

9. In the above back ground, it is necessary to appreciate and analyse the evidence adduced on behalf of both parties. PW2 is a co-employee working as Head Constable; he deposed that he himself and the deceased had to go to Jmkhana Ground to play a foot ball match and that they were waiting for police van near Parvez hotel, and the deceased was crossing the road to join them and at that time bus bearing No.AAZ 3580 dashed against the deceased almost near the footpath on the left side of the road and that due to impact the deceased was thrown to a distance of about 6 to 7 feet and sustained injuries on the head and legs and that the deceased was found unconscious and was immediately shifted to Osmania General Hospital.

10. RW1, the driver of the bus deposed that on 26-7-1989 he was driving bus No.AAZ 3580 on the route from Nampally to Tarnaka and was proceeding slowly and at that time passengers shouted about an accident and immediately he stopped the bus and found that a person falling on the right rear side of the bus. It was informed to the police that the accident was caused by a lorry bearing No.APT 6384 and that the lorry driver was prosecuted by the police. It is further stated that no punishment was given to him in the departmental enquiry and that police prosecuted him and he was acquitted in the criminal Court proceedings.

11. RW2 was a sweeper in Board of Intermediate. She deposed that on the date of accident she was travelling in the bus in question sitting in the second seat and that the deceased was hit by the lorry coming from the opposite direction and fell thereafter at the backside of the bus and stated that there was no fault on the part of the driver of the bus. In the cross-examination, she stated that the driver of the bus requested her to give evidence and denied the suggestion that she was not travelling in the said bus and that she was giving a false evidence.

12. In my view the Tribunal did not appreciate the evidence on proper perspective, particularly in view of the fact that the evidence on record clearly discloses that the bus in question was not away from the point of accident which itself is indicative of slow driving as per the evidence of RW1 which was in corroboration with the evidence of RW2 and the act of the deceased crossing the road without noticing whether it is safe to cross the road, which to some extent is a negligent act on the part of the deceased and further in view of the fact that the driver of the bus was acquitted in criminal Court proceedings stating that he was not driving the vehicle rashly and negligently, no doubt the said finding of the criminal Court is not binding on this Court, none the less, it has got some persuasive value to take into account the act of negligence.

13. While considering the aspect of contributory negligence, the High Court of Punjab and Haryana in Jupiter General Ins. Company Limited v. Balkishan, 1985 ACJ 77, held as follows:

“…..There is a duty of care owned by
all road users to avoid harm or injury to others. An essential part of this duty consists in regulating the speed at which a vehicle is driven in a particular area or locality, …..The deceased too

cannot escape blame in that he had proceeded to go across the road without taking due care to see whether it was safe to do so. In the circumstances, therefore, it must be held that the accident here was caused by the rash and negligent driving of the truck driver and there was also contributory negligence of the deceased to the extent of 25 percent.”

14. Considering the facts and circumstances of the case and the above decisions, I am of the view that the deceased has also contributed to the negligence and the liability has to be apportioned by applying the theory of contributory negligence in the ratio of 75% towards the driver of the bus in question and 25% on the part of the deceased.

15. Then as regards the determination of the just compensation contemplated under the provisions of the M.V. Act, the deceased was drawing a sum of Rs.2060/-per month as on the date of the accident as per Ex.A5 salary certificate, out of which l/3rd is deducted towards personal expenses and remaining 2/3rd i.e., Rs.1400/-is earmarked towards loss of dependency, which annually comes to Rs. 16,800/-. The deceased at the time of accident was 36 years old and the appropriate multiplier would be 15 as per the judgment of the Supreme Court in UPSRTC v. Trilok Chandra, . Thus, an amount of Rs. 16,800 x 15 – 2,52,000/- is hereby granted towards loss of dependency; added to this as per the judgment of the Apex Court in KSRTC v. Susamma Thomas, , a sum of Rs.15,000/-is hereby granted towards consortium and a further sum of Rs.15,000/- is granted towards loss of estate. In all a sum of Rs.2,82,000/- is hereby granted towards compensation, out of which applying the contributory negligence theory 25% of the compensation, i.e., Rs.70,500/- is hereby

deducted and the award of the Tribunal is modified by granting a sum of Rs.2,11,500/-together with interest @ 12% from the date of petition till realisation.

16. Accordingly, the appeal is partly allowed. No costs.


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