HONOURABLE SRI JUSTICE K. LAKSHMAN
AND
HONOURABLE SMT. JUSTICE K. SUJANA
M.A.C.M.A No.948 of 2009
JUDGMENT: ( per Hon'ble Sri Justice K. Lakshman)
Heard Sri Srinivas Chetluri, learned counsel for the appellants and
learned standing counsel appearing on behalf of respondent No.2, Respondent
Nos.1 and 3 were set ex-parte in O.P.No.198 of 1998 itself.
2. Feeling aggrieved and dissatisfied with the judgment and decree dated
16.03.2000 in O.P.No.198 of 1998 passed by the Motor Vehicle Accident
Claims Tribunal-cum-District Judge, Ranga Reddy District at L.B. Nagar, the
appellants - claimants preferred the present appeal.
3. The appellants - claimants have filed claim petition vide O.P.No.198
of 1998 against the respondents claiming compensation of Rs.32,92,356/-,
contending that:
a) Appellant No.1 is the wife of the deceased and appellant Nos.2 and 3
are the children. Respondent No.3 is the father of the deceased;
b) The deceased was working as Lieutenant Commander in Indian Navy
and he was posted as Project Manager in D.R.D.L., Hyderabad, for specified
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MACMA No.948 of 2009
research work in the year, 1994. He was transferred to Controllerate of Quality
Assurance (Warship Equipment), Bangalore, vide order dated 14.05.1997;
c) On 20.06.1997 at about 2.45 P.M., when he was returning home from
D.R.D.L. on Kinetic Pride bearing No. AP 9J-2301, a trainee bus bearing No.
AP Z - 8927 owned by the 2nd respondent Corporation came from opposite
direction, cut across the divider on double road and hit his kinetic pride. As a
result, he fell down and sustained severe multiple injuries. He was shifted to
Kamineni Hospitals, L.B. Nagar, where he succumbed due to his injuries while
undergoing treatment on 22.06.1997. His body was shifted to Osmania
Hospital, Hyderabad, for post-mortem examination. Thus, the accident had
occurred due to rash and negligent driving of driver of the bus. Neither the
instructor was present in this trainee bus nor the dual controls were being
operated.
d) The deceased was recommended for promotion to the post of Scientist
in D.R.D.L. and that would have materialized in the immediate future. If he
was alive, he would have become a scientist-E in D.R.D.L. and he would be
getting a salary of Rs.20,000/- per month and he would have retired as Director
of the Lab. Due to the unfortunate accident, he and his family members have
lost all the future prospects and other benefits. Therefore, they have sought an
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amount of Rs.32,92,356/- towards compensation under various heads, which are
as follows:
I. Compensation .. Rs.32,92,356/-
II. a) Loss of earnings .. Rs.22,01,600/-
b) Transport to hospital .. Rs. 2,000/-
c) Funeral expenses .. Rs. 5,000/-
d) Loss of consortium .. Rs. 10,000/-
e) Loss of love and affection
to petitioner Nos.1 to 3 .. Rs. 1,00,000/-
f) Damage to the articles, clothes
scooter etc. .. Rs. 10,000/-
g) Medical expenses .. Rs. 53,756/-
h) Loss of Estate .. Rs. 10,000/-
i) Loss of future prospects .. Rs. 9,00,000/-
-------------------
Total: .. Rs.32,92,356/-
--------------------
4. Respondent Nos.1 and 3 were set ex-parte. Respondent No.2 -
Corporation filed counter contending that the accident was occurred due to the negligence of the deceased. The appellants failed to prove the income and age of the deceased. Therefore, respondent No.2 - Corporation is not liable to pay compensation to the appellants.
5. To prove the claim, the appellants - claimants have examined the appellant No.1 as P.W.1, the complainant owner of the pan shop and eye- witness, as P.W.2 and got marked Exs.A1 to A20. Respondent No.2 has examined the subject vehicle driver as R.W.1, trainee employees of the 4 KL,J & SKS,J MACMA No.948 of 2009 Corporation as R.W.2 and R.W.3 and its employee as R.W.4 and got marked Exs.B1 and B2 to dispute the claim of the appellants.
6. Learned Tribunal on consideration of the entre evidence both oral and documentary, vide impugned order dated 16.03.2000 awarded an amount of Rs.7,37,800/- as against the claim of Rs.32,92,356/-. Feeling aggrieved and dissatisfied by the said order, the appellants preferred the present appeal.
7. Sri Chetluri Srinivas, learned counsel for the appellants would contend that the Tribunal erred in holding that the accident was head on collision between the scooter and the bus. It was occurred due to the negligence of the driver and the scooter of the deceased. Therefore, the negligence apportioned is 60:40, without considering the depositions of P.W.1, R.Ws.2 and 3. The said finding of the Tribunal is contrary to the record. The Tribunal failed to consider Ex.A19, salary certificate of the deceased. The Tribunal also erred in considering the multiplier as 13 instead of 15 as per principle laid down by the Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation 1. The Tribunal erred in not awarding consortium, future prospects etc., as per the principle laid down by the Apex Court in National Insurance Co. Ltd. v. Pranay Sethi 2 . He further contended that the appellants are entitled for Rs.43,35,360/- towards compensation, though they have claimed an amount of 1 . (2009) 6 SCC 121 2 . (2017) 16 SCC 680 5 KL,J & SKS,J MACMA No.948 of 2009 Rs.32,92,356/- and this Court is having power to grant more than the compensation claimed.
8. Whereas, learned counsel for appearing for respondent No.2 would contend that the Tribunal on consideration of entire evidence, both oral and documentary, awarded an amount of Rs.7,87,800/- and it is a reasoned order. It does not require interference by this Court.
9. As discussed supra, to prove that the accident had occurred due to negligence of the driver of the bus itself, appellant No.1-wife of the deceased was examined as P.W.1 and the owner of the pan shop/complainant, who lodged the complaint with the police, eye witness was examined as P.W.2, whereas, respondent No.1, driver of the bus, was examined as R.W.1 and two trainees as R.Ws.2 and 3.
10. It is relevant to note that P.W.2, owner of the pan shop, deposed that on 20.06.1997, when he was in the pan shop at 02:20 P.M., he saw the bus owned by respondent No.2 Corporation coming from Uppal side in high speed. A person was coming on a Kenetic Pride from L.B.Nagar side. The bus came on the wrong side and dashed the Kenetic pride. The rider of the Kenetic Pride was driving the vehicle on correct side. There is a road divider at the place of the accident. The rider of the Kenetic pride fell down and received grievous injury on head.
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11. During cross-examination, he admitted that the height of the divider at the place of accident is about one foot approximately. The width of the road divider is about three feet. He cannot say width on either side of the road. The width on either side of the road divider can easily accommodate passage of two busses at a time. Nagole Cross Road is at a distance of 20-30 feet from the place of accident. There is cross-road at Nagole Chowrastha. He further admitted that Nagole Road is on the right side on the way to L.B. Nagar from Uppal.
12. RW.1, driver of the subject bus, in his chief examination deposed that there is a road divider from Uppal cross road to Nagole. The road is called ring road. After crossing Moosi Bridge he noticed boulders on the road as an indication for diversion because of road repair. On seeing the boulders on the road, he took side and proceeded further. He took diversion towards right side of the road as the boulders were placed on the left side of the road. Vehicles were passing through right side of the road because of placing of boulders on the left side. After covering 100 or 150 feet from the place of taking diversion, a scooterist came from opposite direction in high speed, dashed the left front of the Bumper of the Bus and fell down. However, during cross-examination, he categorically admitted that the boulders were placed on the left side of the road, due to which, he took diversion to right side. The distance between the place 7 KL,J & SKS,J MACMA No.948 of 2009 where boulders were placed and Nagole chowrasta is about 400 feet. Road divider is up to Nagole Chowrastha.
13. RWs.2 and 3 are the Diesel Mechanic Trainers in A.P.S.R.T.C. In their chief examination, they deposed that they were on training on 20.06.1997. They along with other co-trainees numbering 6 were coming from Hakimpeet to Nagole in the subject bus. RW.1 was driver of the bus. The road from Uppal to L.B. Nagar is called Ring Road. There is a road divider from Uppal to Nagole. After crossing Moosi Bridge, since road was under repairs, driver took the bus towards right side of the road. Driver took the bus towards right side of the road because of repair works. After covering 200 feet from taking diversion, a scooterist came and dashed left front bumper of the bus. The scooterist dashed the bus when it halted. The speed of the bus was at 20 K.M.P.H.
14. However, during cross examination, both of them admitted that they were sitting on the first left seat in the bus. He did not see the vehicle involved in the accident. They have not produced any document to show that they were travelling in the bus as on the date of the accident. They do not know from which place the scooterist was coming. Two roads joined at Nagole cross road, one road from L.B. Nagar and another from Uppal. They saw the road blocks on the left side. The distance between the road block and Nagole cross road, is about 350 feet. There is a gap in road divider at a distance of 300 feet from 8 KL,J & SKS,J MACMA No.948 of 2009 Nagole cross road to facilitate the vehicles from one side to other side. Driver took the vehicle towards right side through that gap.
15. RW.3 during his cross-examination categorically admitted that he didn't see as to which direction the scooter is coming. He was on the left side of the bus when the accident occurred and from left portion of the bus, he saw the accident, but he did not see the scooterist dashed left front of the bus.
16. RW.4 prepared rough sketch of the accident. He has not mentioned the names of RWs.2 and 3 in his chief examination. However, he has admitted during his cross examination the width and the height of the road divider are not indicated in the rough sketch. The gap provided for facilitating the movement of traffic from left to right side of the road was at a distance of 400 feet from Nagole Chowrastha. He did not examine any person from R&B authority during the course of enquiry and no letter has been received from the R&B authority that the road is under repair at the accident site.
17. Despite the said admissions and depositions, the learned Tribunal gave a finding that it is a case of head-on-collision between the scooter and the bus. The accident occurred due to the negligence of the driver and the scooterist. Thus, Tribunal apportioned negligence apportioned as 60:40. None of the witnesses deposed that there was head-on-collision. The said findings are contrary to the depositions of PW.2 and RWs.1 to 4. We are of the considered 9 KL,J & SKS,J MACMA No.948 of 2009 view that the accident was occurred due to negligence of the driver of the bus alone and that there was no negligent on the part of the deceased. It is relevant to note that the Motor Vehicle Act is a beneficial Legislation. If two views are possible, the view which is benefit to the claimants has to be taken. In view of the same, the finding of the Tribunal fixing liability on the part of the deceased at 40% is incorrect and the same is hereby set aside.
18. To prove the age of the deceased, the appellants have filed Ex.A7 - CBSC certificate of the deceased, wherein his date of birth is mentioned as 18.02.1958. The accident was occurred on 20.06.1997. Therefore, as on the date of the accident, the deceased was aged about 39 years 4 months 2 days. Thus, as per the principle laid by the Apex Court in Sarla Verma1, the Tribunal has to consider multiplier as '15', whereas the Tribunal wrongly considered the multiplier as '13'.
19. To prove the income of the deceased, the appellants have filed Exs.A6, A19 and A13 - salary certificates. It is the specific contention of the appellants that the Fifth Pay Commission recommendations were pending as on the date of accident and the employer of the deceased extended interim relief (IR). Therefore, if the deceased is alive, he would get more salary as mentioned in Ex.A19. It is apt to note that the Motor Vehicles Act is a beneficial legislation and, therefore, the Tribunal has to consider future prospects 10 KL,J & SKS,J MACMA No.948 of 2009 including the Fifth Pay Commission, if any, to the deceased also. The said principle was also reiterated by the Apex Court.
20. On perusal of Ex.A19 salary certificate would reveal that in July 1997, the salary of the deceased would be Rs.18,248/- and in January 2008 it would be Rs.23,003/-. The said aspects were not considered. The Tribunal extracted the pay particulars and deductions from the salary of the deceased in paragraph No.7 (a) of the impugned order. Thus, according to the Tribunal, take home salary of the deceased was Rs.9,399/-. Thus, the Tribunal gave a finding that the contribution of the deceased to the family shown at Rs.8,000/- per month and his annual contribution to the family comes to Rs.96,000/-. Annual loss of dependency can be estimated at Rs.12,48,000/-. With the said finding, the Tribunal awarded an amount of Rs.7,87,800/-. In the light of the above discussion, the said findings of the Tribunal are contrary to the record and also material available.
21. In Ex.A6 - salary certificate, it is mentioned that the deceased was drawing a monthly salary of Rs.14,764/-, which is also reflected in Ex.A13-pay slip. As per Ex.A14 - income tax returns acknowledgment, the gross total annual income of the deceased is Rs.1,06,221/- for the assessment year 1996- 97, whereas the net annual income is shown as Rs.1,04,720/-. As per Ex.A15- certificate of deduction of tax at source issued by the Employer of the deceased, 11 KL,J & SKS,J MACMA No.948 of 2009 the gross salary of the deceased for the period from March, 1996 to February, 1997 is shown as Rs.1,42,530/-, whereas, the tax deducted from the salary is Rs.13,615/-. As per Ex.A13 pay slip, only the taxable amount has to be deducted from the salary of the deceased as the same goes to the Government under specified head and there will not be any return. The remaining deductions, such as DSOP (Defence Services Officers Provident), NGIS (National Ground Insurance Scheme) and Provident Fund etc. are the amounts paid under specific heads and the same are always repayable to an employee at the time of voluntary retirement, death or for any other reason. Such contribution made by the salaried person is deferred payments and they are savings. Therefore, the said amounts cannot be shown from the deductions and the same are to be added to the net salary of the deceased as held the Apex Court in National Insurance Co. Ltd., v. Indira Srivastava 3. In view of the same, the total deductions of income tax at Rs.13,615/- has to be deducted from the annual gross salary of Rs.1,42,530/-. When the same is deducted, it would come to Rs.1,28,915/-, whereas, as per Ex.A19 pay and allowances certificate of the deceased, the gross salary of the deceased is shown as Rs.18,248/- after implementation of Fifth Central Pay Commission or the annual gross salary would be Rs.2,18,976/-. But, there is no mention with regard to the income tax deductions. In view of the same and in the absence of specific evidence with 3 . (2008) 2 SCC 763 12 KL,J & SKS,J MACMA No.948 of 2009 regard to the income tax deductions after implementation of Fifth Central Pay Commission and keeping in view the net annual salary of Rs.1,28,915/- and the gross salary of Rs.2,18,976/-, the average annual income of the deceased can be gauged at Rs.1,80,000/-.
22. The deceased was Lt. Commander in Indian Navy and he was posted as Project Manager in DRDL. He came on transfer to Hyderabad and posted as Controllerate of Quality Assurance (Warship Equipment). He was 39 years 4 months 2 days as on the date of accident. He died after two days of the accident. He was admitted in Kamineni Hospital by the driver. The appellant have filed Ex.A12 discharge bill issued by Kameneni Hospital to prove the medical expenses. The said aspects were not considered by the Tribunal. Thus, the Tribunal erred in awarding an amount of Rs.7,87,800/- as compensation.
23. Appellant No.1 is the wife of the deceased and Appellant Nos.2 and 3 are the minor children of the deceased. Respondent No.3 is the father of the deceased. Appellant Nos.2 and 3 lost the parental consortium, love and affection of their father. They were only 9 and 7 years respectively at the time of accident. The said aspects were not considered by the Tribunal. When the wife and two children are dependants on the deceased, 1/3rd has to be deducted from the annual income of the deceased and accordingly the contribution of the deceased towards his family would come to Rs.1,20,000/- (Rs.1,80,000/- minus 13 KL,J & SKS,J MACMA No.948 of 2009 1/3rd of Rs.60,000/-). Therefore, this Court is inclined to take Rs.1,20,000/- per annum as the annual contribution of the deceased to his family. As per the evidence, the age of the deceased is 39 years as on the date of the accident, the appropriate multiplier would be '15'. Therefore, the loss of dependency comes to Rs.18,00,000/- (Rs.1,20,000 x 15).
24. That apart, as per the principle held by the Hon'ble Apex Court in Pranay Sethi2, an addition of 50% of the established income of the deceased should be added towards future prospectus since the deceased had a permanent job and he was below the age of 40 years, and when the same is applied, it works out to Rs.9,00,000/- (50% of Rs.18,00,000/-) and, therefore, the same is also awarded to the appellants. Further, as per the principle held by the Apex Court in Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram 4 and Pranay Sethi2, the appellants are entitled for an amount of Rs.15,000/- towards funeral expenses, Rs.15,000/- towards loss of estate and Rs.40,000/- towards spousal consortium to appellant No.1 and Rs.40,000/- each to appellant Nos.2 and 3 towards loss of parental consortium and Rs.40,000/- to respondent No.3 towards filial consortium. As per the principle laid down by the Apex Court in Pranay Sethi2, every three years, 10% shall be enhanced on the amounts of loss of estate, loss of consortium and funeral expenses i.e., Rs.15,000/-, Rs.40,000/- and Rs.15,000/-. The said judgment was delivered on 4 . (2018) 18 SCC 130 14 KL,J & SKS,J MACMA No.948 of 2009 31.10.2017 and by now six years have been lapsed. In view of the same, the aforesaid amounts have been enhanced to Rs.18,000/- towards funeral expenses; Rs.18,000/- towards loss of estate; Rs.48,000/- towards spousal consortium to appellant No.1 and Rs.48,000/- each to appellant Nos.2 and 3 towards loss of parental consortium and also Rs.48,000/- to respondent No.3 towards filial consortium as per the principle laid down by the Hon'ble Apex Court in Smt. Anjali v. Lokendra Rathod 5. The appellants and respondent No.3 are also entitled an amount of Rs.2,00,000/- towards loss of love and affection (Rs.50,000/- each). An amount of Rs.5,000/- is awarded towards transportation charges and also Rs.5,000/- towards damages to clothes. The accident occurred on 20.06.1997 and thereafter the deceased was admitted in Kamineni Hospitals, L.B.Nagar, Hyderabad and he died on 22.06.1997 while undergoing treatment. As per Ex.A12 discharge bill, the appellants herein had incurred an amount of Rs.43,667.93paise, towards medical expenses, whereas they claimed an amount of Rs.53,756/- . Therefore, an amount of Rs.45,000/- is awarded towards medical expenses.
25. In view of the above discussion, the appellants are entitled to Rs.31,83,000/- (Rupees Thirty One Lakhs and Eighty Three Thousand) as compensation under the following heads:
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. 2022 LiveLaw (SC) 1012 15 KL,J & SKS,J MACMA No.948 of 2009
i) Loss of dependency .. Rs. 18,00,000-00
ii) Loss of future prospects at 50% .. Rs. 9,00,000-00
iii) Funeral expenses .. Rs. 18,000-00
iv) Loss of estate .. Rs. 18,000-00
v) Spousal Consortium .. Rs. 48,000-00
vi) Filial consortium .. Rs. 48,000-00
vii) Parental Consortium .. Rs. 96,000-00
viii) Loss of love and affection .. Rs. 2,00,000-00
ix) Transportation Charges .. Rs. 5,000-00
x) Damages to clothes .. Rs. 5,000-00
xi) Medical Expenses .. Rs. 45,000-00
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Total .. Rs. 31,83,000-00
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26. It is relevant to note that challenging the order dated 16.03.2000, passed in O.P.No.198 of 1998 respondent No.2 Corporation has preferred C.M.A. No.2657 of 2000. Vide order dated 21.07.2008, this Court dismissed the said appeal confirming the order of the Tribunal dated 16.03.2000 in O.P.No.198 of 1998. The Tribunal awarded the rate of interest @ 12% per annum from the date of petition till the date of payment. However, the same is reduced from 12% to 7.5 per cent per annum.
27. The appellants herein preferred the present appeal on 11.07.2000 i.e., well within the limitation. However, the same was returned with some objections. Learned counsel for the appellants resubmitted the said appeal with a delay of 3162 days. Therefore, there is no mistake on the part of the appellants - claimants. It is the duty of the counsel to resubmit the bundle by 16 KL,J & SKS,J MACMA No.948 of 2009 complying with the objections raised by the Registry. However, he has re- submitted the bundle with a delay of 3162 days. Due to the lapse on the part of the counsel, the appellants cannot be suffered.
28. It is relevant to note that in the impugned order, it is observed by the Tribunal that respondent No.3 is not entitled to claim any compensation as he is a pensioner drawing a pension of Rs.6,000/- per month. ExA17 is the notarized affidavit of respondent No.3, wherein he has stated that he has no objection for payment of the entire claim amount to the appellants herein. In view of the same, the Tribunal has not apportioned any compensation to respondent No.3. The said finding of the Tribunal is confirmed. However, we have granted an amount of Rs.48,000/- towards filial consortium to respondent No.3 and also an amount of Rs.50,000/- towards loss of love and affection and the amounts awarded under the said heads cannot be apportioned to the appellants, and respondent No.3 herein alone is entitled to receive being the father of the deceased. Therefore, out of the aforesaid total amount, an amount of Rs.98,000/- is apportioned to respondent No.3 with interest @ 7.5% per annum thereon from the date of petition till the date of payment.
29. In the light of the aforesaid discussion, the impugned order and decree are liable to be modified by allowing the present appeal. 17
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30. In the result, the appeal filed by the appellants - claimants is allowed in part, and the order and decree dated 16.03.2000 in O.P. No.198 of 1998 passed by the Tribunal are modified enhancing the compensation to Rs.31,83,000/- (Rupees Thirty One Lakhs and Eighty Three Thousand) from Rs.7,87,000/-(Rupees Seven Lakhs and Eighty Seven Thousand Only) with interest at the rate of 7.5% per annum thereon from the date of petition till realization and costs as awardedsx by the Tribunal. Out of the said amount of Rs.31,83,000/- (Rupees Thirty One Lakhs and Eighty Three Thousand Only), an amount of Rs.30,85,000/- (Rupees Thirty Lakhs and Eight Five Thousand Only) shall be apportioned among the appellants - claimants in the same proportion in which original compensation amounts were directed to be apportioned by the Tribunal. Respondent No.3 herein, who is the father of the deceased is entitled to Rs.98,000/- (Rupees Ninety Eight Thousand Only) with interest @ 7.5% per annum thereon from the date of petition till the date of payment. Respondent No.2 is directed to deposit the above said amount with interest and costs, after deducting the amount, if any, deposited earlier within one month from the date of receipt of certified copy of this judgment. However, there shall be no order as to costs.
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KL,J & SKS,J MACMA No.948 of 2009 As a sequel, miscellaneous applications, if any, pending in the appeal shall stand closed.
_____________________ K. LAKSHMAN, J ________________ K. SUJANA, J 16th November, 2023 Sai/Mgr