M. MADHAVI Vs. CH. ANANTHAIAH

JUDGEMENT

(1.) AGGRIEVED by the Award dated 19 -09 -2008 in M.V.O.P No.790 of 2007 passed by the M.A.C.T -cum -VIII Additional Chief Judge, Hyderabad (for short ''the Tribunal ''., the claimants preferred the instant MACMA on the ground of inadequacy of compensation.

(2.) THE factual matrix of the case is thus: a. The claimants are wife, minor daughters and parents of the deceased -Manaka Prasad. The case of the claimants is that on 13 -02 -2007 when the deceased along with others was proceeding in an auto bearing No.AP 23 U 5322 from Anajpur towards Gajwel and when they reached near S.C.Wada, Gajwel at about 12.30 P.M. a tractor bearing No.AP 23 K 1691 coming in the opposite direction driven by its driver at high speed and in a rash and negligent manner, dashed the auto and caused the accident. In the resultant accident the claimant and others sustained grievous injuries. Immediately the deceased was shifted to Gandhi Hospital, Musheerabad, Hyderabad where the doctors after examining him declared as dead. Hence, the claimants filed MVOP No.790 of 2007 against respondents 1 and 2 who are the owner and insurer of the offending tractor and claimed Rs.10,00,000/ - as compensation under different heads mentioned in the OP. a. R1 remained ex -parte. b. Respondent No.2 -Insurance Company filed counter and opposed the claim and denied all material averments in the petition. Firstly, it contended that as per FIR an unnumbered tractor was involved in the accident but subsequently while filing charge -sheet tractor bearing No.AP 23 K 1691 was implicated in the case. Secondly, it contended that at the time of accident more than 15 persons were travelling in auto contravening its seating capacity and as such the accident was occurred due to the fault of driver of auto who overloaded the vehicle. Finally, R2 contended that the claim is excessive and exorbitant. c. During trial P.Ws.1 to 3 were examined and Exs.A1 to A12 were marked on behalf of the claimants. R.W.1 was examined and Exs.B1 to B5 were marked on behalf of respondents. d. A perusal of the award would show that considering the oral evidence of P.Ws.1 to 3 coupled with documentary evidence Ex.A1 -FIR, Ex.A2 -charge sheet and Ex.A4 -post -mortem report, the Tribunal held that accident took place due to contributory negligence of both the drivers of auto and tractor and accordingly fixed the liability in the ratio of 50: 50. The Tribunal rejected the contention that the crime tractor was manipulated. e. Compensation is concerned, the Tribunal observed that the claimants in fact are entitled to the compensation of Rs.8,96,000/ - under different heads as follows: <FRM>JUDGEMENT_220_LAP_2014.html</FRM> However, since the contributory negligence on the part of the deceased was fixed at 50%, the Tribunal awarded net compensation of Rs.4,48,000/ - (Rs.8,96,000/2. to the claimants. Hence, the appeal by the claimants.

(3.) A . Criticizing the award learned counsel firstly argued that the Tribunal failed to appreciate the oral evidence of PW2 and other documentary evidence and wrongly held that accident was occurred due to the contributory negligence of both the vehicles. He argued that as against the eye -witness evidence of PW2 no contra evidence was adduced by the Insurance Company to show that the deceased contributed for the accident. He argued that when there is no contra pleading or evidence on the aspect of contributory negligence, the same cannot be raised first time in the arguments and accepted. In this regard he relied upon the following decisions.