National Insurance Company Limited vs Smt. B. Rajya Laxmi and Others

Dr. B. Siva Sankara Rao, J.—The insurance company who is no other than the 3rd respondent in O.P. No. 989 of 1999 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad, is the appellant herein having aggrieved by the finding of the tribunal in the result portion of the award with regard to fixing joint liability on 2nd respondent/owner and 3rd respondent/insurer of the lorry along with 1st respondent-APSRTC, though the accident was the result of fault of the bus driver alone as per the evidence on record and as per the findings of the tribunal. Thereby, the appellant sought for setting aside the judgment and decree passed by the tribunal in so far as the appellant/3rd respondent to indemnify the owner of the lorry is concerned. Heard the learned standing counsel for the appellant and the learned counsel for the respondents 1 to 4. Notices were sent to respondents 5 and 6. Though notice is served on 5th respondent-APSRTC, none appeared, thus taken as heard the 5th respondent to decide on merits. Since notice returned un-served for 6th respondent/owner of lorry, and no further notice taken, the claim against her is dismissed for default. The dismissal of the appeal against the 6th respondent owner is no bar to the maintainability of the appeal as per the division bench Judgment of the A.P. High Court in Meka Chakra Rao Vs. Yelubandi Babu Rao @ Reddemma and others, . Thus the appeal is taken up for hearing to decide on merits. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

The contentions in the grounds of appeal in nutshell are that the award of the Tribunal is contrary to law, weight of evidence and probabilities of the case, that the Tribunal is erred in arriving at a wrong conclusion in fixing joint liability on the insured and insurer of the lorry as if contributed to the occurrence, though its own finding is against the driver of the bus i.e., 1st respondent of the claim petition. Hence prayed to set aside the joint liability, by fixing the entire liability on 5th respondent-APSRTC.

Now the points that arise for consideration in the appeal are:

Whether the material on record from the duty of the 1st appellate Court needs re-appreciation of the evidence of fact and law, and requires interference with the conclusion of the tribunal, irrespective of its finding fault with the bus driver, in fixing the joint liability on the two vehicles?

To what result?

POINT-1:

From the factual matrix of the case on hand, PW 1, who is wife of the deceased, is admittedly not an eye witness. According to her, her brother-in-law informed about the accident. Thereby to speak about the manner of accident, her evidence is not of any help. Coming to PW 2, who is said to be a passerby on bicycle, witnessed the accident and stated that due to rash and negligent driving of the driver of the bus the accident occurred, while both lorry and bus were proceeding in opposite direction and the bus hit the lorry due to which the lorry turned turtle and the deceased succumbed apart from others injured who are traveling in the lorry as workers for loading and unloading of the sand. RW 3 who is a co-worker, also deposed the same, but not regarding the accident surprisingly. Apart from that, if the lorry driver is not responsible for the accident and that it is the bus driver, instead of setting the law in motion by a passerby, the lorry driver should have reported about the incident to the police from the duty bound under the provisions of Motor Vehicle Act 1988. On the other hand, the driver of the bus deposed that the driver of the lorry is at fault and not himself as driver of the bus proceeding with normal speed and there are no grounds for fixing even contributory negligence much less any liability against the APSRTC. The RW 1 evidence discloses that when both the bus and lorry were coming in opposite direction, the driver of the lorry lost control while overtaking the cyclist, who is ahead of it, struck to the right side corner of the bus and took U-turn, resulting the lorry fell down on the road margin. Even from this evidence, it shows negligence of the both drivers, who cannot totally avoid the liability. The crucial documents if at all to establish on the fact in dispute are the scene observation and sketch and the Motor Vehicle Inspector''s report. The rough sketch and scene observation report are not filed by any of the parties but for MVI report/Ex. A5, which categorically speaks from its contents that it is a head on collusion and not touching any corner of the lorry by the corner of the bus. Para 8 of the MVI report shows that front portion of the both vehicles were damaged. Further, the accident could not have been occurred much less in the manner it was occurred, unless there being head on collusion. Once it is head on collusion, it is difficult to fix the entire responsibility of negligence on the bus driver alone, when the lorry driver also contributed to it. Having regard to the same, in a case of head on collusion, where the size of both vehicles is almost equal, the liability has to be fixed equally. As such the findings of the tribunal, from the fact of Ex. A1 First Information Report registered against the bus driver and Ex. A5 charge sheet filed against the bus driver in holding the bus driver alone as liable for the entire accident is unsustainable, when above evidence establishes composite negligence of drivers of both vehicles and as a result there was head on collusion; but for to say from FIR and charge sheet against only bus driver indicates his contribution to the accident is a little more, when compared to that of lorry driver.

From above material on record and from re-appreciation of the same in the factual matrix, it is clearly proving contributory negligence of both the bus driver and lorry driver. Therefore, the negligence of bus driver is fixed at 60 % and the negligence of lorry driver is fixed at 40%. Since the 1st respondent-APSRTC is the owner of the bus, is liable to pay 60% of the entire compensation and 2nd and 3rd respondents being the owner and insurer of the lorry, are jointly and severally liable to pay 40% of the entire compensation, irrespective of the conclusion arrived at by the tribunal and irrespective of the no cross-objections filed by the APRTC or the claimants to the appeal filed by the insurance company. It is from the scope of the provisions of Order 41 Rules 24 and 33, which are the exceptions to Rule 22, which say that irrespective of no cross objections, the appellant Court could exercise the power under Rule 33, which provision is liberal enough and of wide amplitude, even if the appeal is only against a part of the decree of the lower Court, for entire matter is at large and the sweep of the power under Rule 33 is wide enough from the words ''as the case may require'' to determine any question not only between appellant and respondent; but also between co-respondents. The appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case and to meet the ends of justice and to determine all questions involved, as held in Mahant Dhangir and Another Vs. Madan Mohan and Others, and S. Nazeer Ahmed Vs. State Bank of Mysore and Others, . Further the Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, observed that the Tribunal/Court got power to decide in a claim not only a dispute inter se between claimant on one hand and insured and insurer on the other, but also dispute inter se between insured and insurer etc. Thereby, the above conclusion drawn by this Court, justifies on fact and law.

Having regard to the above, coming to the finding of the tribunal on issue No. 3 at para 15 of page, what all it held is respondents 1 to 3 are jointly and severally liable to pay compensation as if fixing 50% liability to the owner and insurer of the lorry and 50% liability to the APSRTC. In fact, from the evidence on record and from the factual matrix as observed above, the owner and driver of the lorry are liable for 40% and the APSRTC is liable for 60% and the total liability has to be apportioned at the same proportion of said compensation fixed by the Tribunal of Rs. 2,62,000/-. As there is nothing to reduce the quantum of compensation of Rs. 2,62,000/- arrived at by the tribunal, from the fact that the age of deceased as per Ex. A3 P.M. report (as per observation in at para 14 of the judgment also) was 28 years and to say for a person aged between 26 to 30, as per Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the multiplier applicable is 17. Even the earnings of the deceased as were estimated by the tribunal at Rs. 1,200/- per month only taken without increasing for future prospects and also the deduction for personal expenses of the deceased taken by the tribunal is 1/3rd even the four claimants are dependants to deduct only 1/4th (as per Sarla Verma Supra). Apart from that, 15,000/- towards consortium is not the just compensation as under said head Rs. 1,00,000/- is to be awarded as held in Rajesh and Others Vs. Rajbir Singh and Others, , and Rs. 2,000/- towards funeral is not commensurate to the expenditure to incur and thus under the head, the amount to be awarded is a minimum of Rs. 25,000/- (vide Rajesh). Though, all the above aspects requires enhancement, for not filing cross-objections or independent appeal impugning the quantum seeking enhancement, the appellate Court even under Order 41 Rule 33 CPC by sitting in appeal cannot interfere with the same to increase the quantum as held by the Apex Court in Ranjana Prakash and Others Vs. Divisional Manager and Another, and OIC Ltd. v. R. Swaminathan 2006 ACJ - 1398 (SC) at para 5, that in the appeal filed by Insurer or owner, in the absence of cross-objections, the claimant but for to support and defend to the quantum not to reduce cannot claim any enhancement. Coming to the dispute on rate of interest at 9% per annum awarded by the tribunal is on high side; from the settled proposition of law including from the expressions of the Apex Court in Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya and Others, ; Sarla Verma''s case (5th supra) and the latest expression in Rajesh''s case (6th supra), where the interest is awarded at 7�% per annum by taking consideration of steep fall in bank rate of interest. Thus the interest from 9% per annum is reduced to 7�% by awarding from the date of claim petition till realization on the compensation amount. Accordingly, Point No. 1 is answered.

POINT-2

In the result, the appeal is partly allowed while setting aside the findings of the tribunal including in fixing joint liability and even in concluding that the bus driver is only at fault; thus by modifying the same and fixing liability of the APSRTC for negligence of its bus driver at 60% and of the owner and insurer of the lorry jointly at 40% for the composite negligence of both the vehicles, by directing them to deposit the compensation amount of Rs. 2,62,000/- awarded by the tribunal, in their respective proportion, within one month together with 7�% interest (after deduction of any amount paid so far pursuant to the award of the Tribunal), failing which the claimants can execute and recover. Out of said compensation, the 1st claimant (wife of deceased) is entitled to 30%, the claimants 2 and 3(minor children) are entitled to 25% each and the 4th claimant (mother of deceased) is entitled to 20%. On such deposit or execution and recovery, claimant Nos. 1 and 4 are permitted to withdraw Rs. 50,000/- each in addition to the amounts already withdrawn by them. Rest of the amounts of the claimant No. 1 and if any of the claimant No. 4 shall be invested respectively in separate FDs in a nationalized bank for a period of three years; and the entire amounts of claimants 2 and 3 shall be invested respectively in separate FDs in a nationalized bank till they attain the age of majority. With permission to withdraw interest thereon by the 1st claimant every month by opening an S.B. a/c for the bank to credit to said S.B. a/c the interest amounts to spend for the minors'' welfare. There is no order as to costs in the appeal.