Telangana High Court
Telangana State Road Transport ... vs N.Neelima Reddy on 18 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NO.588 OF 2023
JUDGMENT:
Heard learned standing counsel Sri Thoom Srinivas for the appellant-TSRTC and the learned counsel Sri K.Sai Sri Harsha for the respondents-claimants.
2. The present appeal has been filed by the appellant-TSRTC challenging the award passed by the Motor Accidents Claims Tribunal-cum-The Court of the Chief Judge, City Civil Court, Hyderabad (for short, 'Tribunal') in M.V.O.P.No.761 of 2016, dated 06.10.2022, thereby seeking to set-aside the award against the TSRTC.
3. For convenience, the parties hereinafter are referred to as they are arrayed before the Tribunal.
4. The brief factual matrix of the present appeal is as under:
On 25.11.2015 at about 8.00 a.m., the deceased went outside to meet his friend on his motorcycle bearing registration No.TS-16-EE-
LNA,J MACMA No.588 of 2023 2 7879 and when he reached near Golconda cross-roads, the respondent no.3, who is driver of RTC bus bearing registration No.AP-11-Z-7418, drove the bus in rash and negligent manner in high speed and dashed the deceased and the deceased fell down, sustained bleeding injuries to his head and died on the spot. The Police, Chikkadapally Police Station, registered a case in Crime No.521/2015 under Section 304-A IPC against the driver of the offending vehicle and filed charge sheet.
5. The claimants, i.e., the parents of the deceased, have filed claim petition against appellant under Section 166 of Motor Vehicles Act, 1988 and Rule 475/1B of APMV Rules, 1989 before the Tribunal claiming compensation of Rs.50,00,000/- along with interest from the date of the petition till the date of deposit.
6. It is contended that the deceased was aged about 18 years as on the date of accident, hale and healthy and was 1st year engineering student of Keshava Memoraial Engineering College; that the deceased was earning Rs.20,000/- per month by giving the LNA,J MACMA No.588 of 2023 3 tuitions and was contributing the same to the welfare of his family and that claimants lost the support of the deceased.
7. The 3rd respondent-driver of the RTC Bus, remained ex parte. The appellants-TSRTC filed counter denying the averments made in the claim petition with respect to the relationship of the petitioners with the deceased, age, income, health, manner of accident, involvement of the RTC bus in the accident. It is contended that the deceased was riding the motorcycle in high speed, came in wrong side and dashed the bus on the rear side; that the deceased had no licence at the time of the accident; that the petitioners failed to file the driving licence of the deceased and they are trying to misuse the social welfare legislation and the insurance company of the motor cycle was not made as party to the petition and therefore, petition is liable to be dismissed for non-joinder of necessary parties and finally prayed to dismiss the claim petition.
8. On the basis of the above pleadings, the Tribunal framed the following issues:
LNA,J MACMA No.588 of 2023 4
i) Whether the pleaded accident had occurred resulting in death of the deceased, N.Vishal Reddy, due to rash and negligent driving of RTC Bus bearing registration No.AP-
11-Z-7418 by its driver ?
ii)Whether the petitioners are entitled to any compensation and if so, at what quantum and what is the liability of the respondents ?
iii) To what relief?
9. In order to substantiate the case, on behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A1 to A8 were marked. On behalf of the TSRTC, neither any witness was examined nor was any document marked.
10. The Tribunal, on due consideration of the evidence and material placed on record, came to conclusion that the accident took place due to rash and negligent driving of the RTC Bus and awarded compensation of Rs.26,30,000/-, payable by the respondents 1 to 3 jointly and severally together with costs and interest @ 7.5% per annum from the date of petition till the date of realization.
11. During the course of hearing of the appeal, learned counsel for appellants/TSRTC, while reiterating the averments made in the LNA,J MACMA No.588 of 2023 5 counter, submitted that the Tribunal erroneously awarded compensation. He further submitted that there was no negligence on the part of the driver of the bus; that the Tribunal ought to have drawn an inference that there is negligence on the part of the deceased only and therefore, TSRTC is not liable to pay the compensation. He also submitted that Tribunal erred in considering the monthly income of the deceased as Rs.20,000/- without there being any proof of income and finally, prayed to set aside the award passed by the Tribunal.
12. Per contra, the learned counsel for respondents submitted that the Tribunal had wrongly adopted the multiplier of 16 instead of 18 and the Tribunal erred in awarding consortium. He further submitted that the appeal is devoid of any merit and the appellant failed to make out any case warranting this Court to interfere with the award passed by the Tribunal and finally, prayed to dismiss the appeal by awarding just compensation in respect of consortium.
LNA,J MACMA No.588 of 2023 6 Consideration:
13. The principal contention raised by the appellants/TSRTC is that the Tribunal erred in awarding a sum of Rs.26,30,000/- towards compensation together with costs and interest @ 7.5% per annum without there being any material with regard to the alleged earnings of the deceased as Rs.20,000/- per month; that the Tribunal failed to appreciate the fact that the deceased died because of his own rash and negligent driving and therefore, the appellants/ TSRTC is not liable to pay any compensation; that there is no negligence on the part of driver of RTC bus and therefore, the Tribunal ought to have awarded compensation under Section 140 of Motor Vehicles Act for no fault liability to a maximum amount of Rs.50,000/-; that the deceased was having valid learners licence to drive the motor cycle and therefore, the deceased can drive the vehicle only with the help of valid driving licence holder and in the present case, there is no licence holder assisted the deceased and as such, no liability could be fastened on appellants/TSRTC; that the claim petition is filed under Section 166 of MV Act, therefore, the claimants have to prove LNA,J MACMA No.588 of 2023 7 the rash and negligence on the part of crime vehicle and in the absence of the same, the Tribunal ought not to have awarded compensation.
14. Perusal of the award passed by the Tribunal would show that basing on the evidence, Ex.A2-charge sheet, the Tribunal held that the accident occurred due to rash and negligent driving of bus belong to the appellants/TSRTC and answered the issue no.1 i.e., against the appellants and in favour of the claimants.
15. With regard to the driving licence of the deceased, the Tribunal by referring to Ex.A5 observed that the deceased was issued learner's driving licence on 10.09.2015 and the same was valid upto 09.03.2016 and was authorized to drive LMV, MCWG. The Tribunal further observed that since the deceased was having learners driving licence, there can be no issue of violation of licence in case the matter is adjudicated under Section 163-A of the MV Act, but not under Section 166 of MV Act and thus, held that the issue of driving licence violation does not arise.
LNA,J MACMA No.588 of 2023 8
16. Perusal of record would show that the claim application petition was filed under Section 166 of MV Act, therefore, observation of the Tribunal that if the matter is adjudicated under Section 163-A of MV Act, there can be no issue of violation of licence is contrary to the material on record. In considered opinion of this Court the Tribunal erred in deciding the issue of negligence under Section 163-A of the MV Act and awarding compensation under Section 166 of the MV Act.
17. In National Insurance Company Limited v. Swaran Singh and others 1, the Hon'ble Apex Court held that if a vehicle at the time of accident was driven by a person having learning licence, the insurance company would be liable to satisfy the decree. In the present case, the deceased was having learned licence, which is evident from Ex.A5, therefore, it cannot be held that deceased was not having driving licence and that deceased drove the vehicle in violation of the licence.
1 (2004) 3 SCC 297 LNA,J MACMA No.588 of 2023 9
18. In Swaran Singh (supra), the Hon'ble Supreme Court held as under:
"90. .... Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties.
110. (i) to (vii) xxxx
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree."
19. In the light of above, the contention of learned counsel for appellants/TSRTC that liability cannot be fastened on the appellants since deceased was having only learner's driving licence and that no licence holder assisted the deceased, is untenable.
LNA,J MACMA No.588 of 2023 10
20. Insofar as the assessment of the compensation is concerned, the Tribunal has considered the earnings of the deceased at Rs.20,000/- mainly relying on the evidence of P.W.2. Perusal of record would show that P.W.2 deposed that deceased used to give tuitions to his son and daughter and he used to pay Rs.15,000/- per month to encourage the deceased and another two children joined the tuition and that the deceased was earning Rs.20,000/- from tuitions. In cross-examination, P.w.2 categorically admitted that no documents were filed to show that his children are 6 and 9 years old and further he did not show the monthly payments made to the deceased in his income tax returns.
21. It is pertinent to mention that Tribunal specifically observed that the evidence of P.W.2 seems to be doubtful, however, on bona fide belief that P.W.2 indeed paid Rs.15,000/- per month for tuitions to his children and two more children paid Rs.5,000/-, the Tribunal has taken the monthly income of the deceased at Rs.20,000/-. In considered opinion of this Court, in the absence of any material in support of evidence of P.W.2 and further, having LNA,J MACMA No.588 of 2023 11 observed that evidence of P.W.2 is doubtful, the Tribunal erred in considering the monthly income of the deceased at Rs.20,000/-.
22. A Division Bench of this Hon'ble Court in B.Ramulamma v Venkatesh Bus Union, Lingarajapuram, Bangalore and another 2, in similar circumstances, i.e., while adjudicating the compensation in support of Engineering student, has taken monthly income of the deceased at Rs.12,000/- and deducted 10% of income for each uncompleted year. Further, the Division Bench of this Court in MACMA No.3353 of 2014 by relying on the decision of B.Ramulamma (supra), had fixed the monthly income of the deceased therein at Rs.15,000/- considering the year of accident, vide judgment dated 09.08.2023.
23. In considered opinion of this Court, the facts of the above decision and the present case are similar and therefore, this Court is inclined to rely on the above decision and accordingly, fixes the monthly income of the deceased at Rs.15,000/-. Admittedly, the 2 2009 SCC Online AP 565 LNA,J MACMA No.588 of 2023 12 deceased was a first year engineering student, thus, deceased was to complete three more years. Therefore, 10% of monthly income of the deceased for uncompleted three years has to be deducted as per the decision of Division Bench of this Court, which comes to Rs.10,500/- (Rs.15,000/- - Rs.4,500/-). If 40% of the income is added to the actual income of the deceased towards future prospects as per the decision of Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi 3 , the total income of the deceased would be Rs.14,700/- (Rs.10,500/- + Rs.4200/-) per month.
24. As per the Sarala Verma v. Delhi Transport Corporation 4 (supra), since the deceased was bachelor, 50% of the income has to be deducted towards his personal expenses and therefore, the loss of contribution to the dependants comes to Rs.7,350/- (50% of Rs.14,700/-) per month and Rs.88,200/- per annum (Rs.7,350/- ×
12), and after applying the relevant multiplier '18' as per Sarla 3 (2017) 16 SCC 680 4 (2009) 6 SCC 121 LNA,J MACMA No.588 of 2023 13 Verma's case (supra), the loss of source of income comes to Rs.15,87,600/- (Rs.88,200/- × 18).
25. As per the decision of Pranay Sethi (supra), petitioners are entitled to Rs.40,000/- each towards consortium, and Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. Conclusion:
26. In view of the above, the compensation amount is recalculated as under:
Sl.No. Head Compensation awarded
1 Loss of source of income Rs.15,87,600/-
2 Consortium Rs. 80,000/-
(Rs.40,000/- x 2)
3 Funeral expenses Rs. 15,000/-
4 Loss of estate Rs. 15,000/-
Total compensation to be paid: Rs.16,97,600/-
27. In the result, the Appeal is partly allowed reducing the compensation amount from Rs.26,30,000/- to Rs.16,97,600/- with interest at the rate of 7.5.% per annum from the date of the claim LNA,J MACMA No.588 of 2023 14 petition till the date of realization. The appellants/TSRTC herein are directed to pay the said compensation amount within a period of six weeks from the date of receipt of copy of this order. The respondents 1 and 2 herein/claimants are entitled to the apportionment and withdrawal of the amount as directed by the Tribunal. There shall be no order as to costs.
28. Pending miscellaneous applications if any shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 18.04.2024 kkm