Telangana High Court
The Apsrtc, Hyd vs Shaik Afsar Begum, Nalgonda Dist And 4 ... on 25 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.Nos.543 of 2017 and 1907 of 2019
COMMON JUDGMENT:
1. These Motor Accident Civil Miscellaneous Appeals are directed against order and decree dated 09.07.2015 on the file of the Chairman, Motor Accident Claims Tribunal, Special Judge for Trial of cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act cases-cum-Additional District and Sessions Judge at Nalgonda and FAC Judge, Family Court-cum- Additional District Judge, Nalgonda (hereinafter referred to as 'Tribunal'). The said claim petition was filed by the petitioners therein seeking compensation for death of one Shaik Ilias (hereinafter referred to as 'deceased') and the same was allowed granting compensation of Rs.6,58,000/-. Aggrieved by the said order, respondent No.1 before the Tribunal has filed M.A.C.M.A.No.543 of 2017 seeking to set aside the impugned order and dismiss the claim petition and respondent No.2 before the Tribunal filed M.A.C.M.A.No.1907 of 2019 seeking enhancement of compensation granted by the Tribunal. Since both the appeals are arising out of same order and decree, they are being dealt with by way of this common judgment. 2
MGP,J MACMA_543_2017 & MACMA_1907_2019
2. The petitioners before the Tribunal are respondent Nos.1 to 4 in M.A.C.M.A.No.543 of 2017 and respondent Nos.2 to 5 in M.A.C.M.A.No.1907 of 2019. Respondent No.1 before the Tribunal is appellant in M.A.C.M.A.No.543 of 2017 and respondent No.1 in M.A.C.M.A.No.1907 of 2019. Respondent No.2 before the Tribunal is respondent No.5 in M.A.C.M.A.No.543 of 2017 and appellant in M.A.C.M.A.No.1907 of 2019. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Commissioner.
3. It is the case of the petitioners that petitioner No.1 is mother, petitioner No.2 is brother, petitioner Nos.3 and 4 are sisters and respondent No.2 is wife of the deceased. The deceased was auto driver and on 27.07.2006, he was proceeding in his auto bearing No.AP 24 W 565 from Mallepally to Nalgonda. On the said day, at about 07:30 PM, when he reached Parvathgiri village of Kangal Mandal, APSRTC bus bearing No.AP 10 Z 6794 came in opposite direction in rash and negligent manner at high speed and dashed the auto of the deceased. The auto of the deceased was dragged to some distance, as a result of which the deceased 3 MGP,J MACMA_543_2017 & MACMA_1907_2019 sustained grievous injuries and died on the spot. In this regard, a cases was registered against the driver of APSRTC bus bearing No.AP 10 Z 6794 in Crime No.92 of 2006 for the offence under Section 304-A of the Indian Penal Code, 1860 on the file of Police Station Kanagal.
4. It is further case of the petitioners that the deceased was aged about 25 years as on the date of the accident and he was earning an amount of Rs.5,000/- per month on an average as owner-cum-driver of the auto bearing No.AP 24 W 565. The deceased used to contribute the entire amount to the petitioners, who are his dependents. Further, respondent No.2, who is wife of the deceased, left the house of the petitioners immediately after the death of the deceased and she is residing with her parents. Hence, the petitioners filed the present claim petition seeking compensation of Rs.3,00,000/- from respondent No.1.
5. Respondent No.1 filed its counter denying the averments of the claim petition such as age, manner of the accident, income of the deceased and ownership of the auto involved in the accident. It is contended by respondent No.1 that there was no negligence 4 MGP,J MACMA_543_2017 & MACMA_1907_2019 on the part of the driver of RTC bus and the accident occurred due to rash and negligent driving of the deceased. It is also denied that the petitioners are only legal heirs of the deceased. It is also contended that the compensation claimed is excess and exorbitant and prayed to dismiss the claim petition.
6. Respondent No.2 filed counter admitting her relationship with the deceased as well as the petitioners. She also admitted the age, occupation, income of the deceased and death of the deceased in an accident that occurred on 27.07.2006. However, she contended that the deceased with his income used to maintain petitioner Nos.1 and 4 and respondent No.2 only. Petitioner Nos.2 and 3 were also earning for their maintenance and pursuing their studies independently. She denied that she left the petitioners after the death of the deceased and started to reside with her parents. In fact, the petitioners never informed her about filing of the present claim petition with mala fide intention. It is her case that she being the wife of the deceased is entitled for major amount of compensation as she has no other source of income.
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MGP,J MACMA_543_2017 & MACMA_1907_2019
7. In support of their case, the petitioners got examined P.W.1 and got marked Exs.A-1 to A-6. No evidence was adduced by both the respondents.
8. On the basis of the above pleadings, the following issues were framed by the Commissioner:
"1. Whether Shaik Iliyas died in the road accident?
2. Whether the petitioners are entitled to claim compensation, if so, to what amount and from whom?
3. To what relief?"
9. After considering the pleadings and evidence on record, the Tribunal held that the petitioners have successfully proved their case. Hence, the claim petition was allowed holding that respondent No.1 is liable to pay compensation and granted an amount of Rs.6,58,000/- towards compensation payable to the petitioners as well as respondent No.2.
10. Heard both sides.
11. Learned counsel for the respondent No.1/appellant in M.A.C.M.A.No.543 of 2017 contended that the Tribunal failed to consider that there was no negligence on the part of the driver of 6 MGP,J MACMA_543_2017 & MACMA_1907_2019 the RTC bus driver and it is the deceased, who drove his auto in rash and negligent manner and caused the accident. It is also contended that the Tribunal erred in considering the age of the deceased and income of the deceased and granted compensation amount and interest on higher side. It is also contended that the claim petition is liable to be dismissed for non-joinder of the insurance company under which the auto of the deceased was insured with. Hence, prayed to allow the appeal and set aside the impugned order and decree.
12. On the other hand, the learned counsel for respondent No.2/appellant in M.A.C.M.A.No.1907 of 2019 contended that the Tribunal has determined the income of the deceased on lower side and further, future prospects have also not been awarded. It is also contended that the Tribunal did not consider granting amount towards loss of consortium and also granted funeral expenses on lower side. It is mainly contended that the Tribunal has apportioned less amount of compensation towards the share of respondent No.2, who is wife of the deceased. Hence, prayed to allow the appeal and enhance the compensation granted by the Tribunal and also apportion more amounts towards her share. 7
MGP,J MACMA_543_2017 & MACMA_1907_2019
13. Per contra, the learned counsel for petitioners/respondent Nos.1 to 4 in M.A.C.M.A.No.543 of 2017 and respondent Nos.2 to 5 in M.A.C.M.A.No.1907 of 2019 contended that the Tribunal after considering all the aspects has granted just and reasonable compensation and also apportioned right amounts to the petitioners as well as respondent No.2. Hence, interference of this Court is unwarranted, as such prayed to dismiss both the appeals.
14. Now the point for determination is as follows:
"1. Whether the Tribunal has granted compensation on higher side as contended by the respondent No.1?
2. Whether respondent No.2 is entitled for enhancement of compensation granted by the Tribunal as prayed for?"
Point Nos.1 and 2:
15. This Court has perused the entire evidence and material placed on record. Petitioner No.1 was examined as P.W.1 and she got marked Exs.A-1 to A-6, in support of the case of the petitioners. P.W.1 is mother of the deceased and she filed her evidence affidavit reiterating the contents of the claim petition. 8
MGP,J MACMA_543_2017 & MACMA_1907_2019 Though, she was cross-examined, nothing contrary was elicited in the same.
16. It is pertinent to state that Ex.A-1 copy of First Information Report, Ex.A-2 copy of inquest report, Ex.A-3 post mortem examination report and Ex.A-4 copy of charge sheet clearly discloses that the deceased was proceeding in his auto bearing No.AP 24 W 565 from Mallepally to Nalgonda, on 27.07.2006 and at about 07:30 PM, when he reached at Parvathgiri village of Kangal Mandal, one APSRTC bus bearing No.AP 10 Z 6794 came in opposite direction in rash and negligent manner in high speed and dashed the auto of the deceased. Due to the said accident, the deceased sustained injuries and died on the spot. The said documents clearly establish the occurrence of the accident, involvement of APSRTC bus bearing No.AP 10 Z 6794 driven by its driver and also death of the deceased in the said accident.
17. It is also pertinent to state that the Police Kanagal have registered FIR under Ex.A-1 and after thorough investigation filed charge sheet under Ex.A-4. The said documents disclose that police filed charge sheet only against the driver of RTC bus and 9 MGP,J MACMA_543_2017 & MACMA_1907_2019 not against any other persons. This clearly shows that there was no negligence on the part of the deceased in the occurrence of the accident and the negligence was only attributed to the RTC bus driver. If, there was any rash and negligent driving by the deceased, the police would not have registered the crime and laid charge sheet only against the driver of RTC bus. Furthermore, respondent No.1 has not adduced any evidence and failed to examine any eyewitness before the Tribunal to prove that the deceased was driving his auto in rash and negligent manner and that he contributed for occurrence of the accident. In the said circumstances, this Court is of the considered opinion that the Tribunal after considering all the aspects and attributed negligence to the RTC bus driver alone and interference of this Court into the said findings is unwarranted. Hence, the contention of the learned counsel for respondent No.1/appellant in M.A.C.M.A.No.543 of 2017 that the Tribunal failed to consider that there was no negligence on the part of the driver of the RTC bus and it is the deceased, who drove his auto in rash and negligent manner and caused the accident is unsustainable and the same is rejected.
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MGP,J MACMA_543_2017 & MACMA_1907_2019
18. Learned counsel for respondent No.1/appellant in M.A.C.M.A.No.543 of 2017 also contended that the claim petition is liable to be dismissed for non-joinder of the insurance company under which the auto of the deceased was insured. It is evident from the material on record that the accident was caused due to the negligence of the RTC bus driver and it is not the case of contributory negligence. In the said circumstances, the petitioner need not make the insurance company under which the auto of the deceased was insured, as party and they are entitled to claim compensation only from respondent No.1 for the negligence of its RTC bus driver. Hence, the said contention is also unsustainable.
19. It is further contended by the learned counsel for respondent No.1/appellant in M.A.C.M.A.No.543 of 2017 that the Tribunal erred in considering the age and income of the deceased. On contrary, the learned counsel for respondent No.2/appellant in M.A.C.M.A.No.1907 of 2019 contended that the Tribunal has determined the income of the deceased on lower side. A perusal of the evidence on record shows that the petitioners contended that the deceased was earning an amount of Rs.5,000/- per month by 11 MGP,J MACMA_543_2017 & MACMA_1907_2019 working as driver-cum-owner of the auto involved in the accident. The Tribunal as the petitioners have not placed any evidence on record to prove that the deceased was earning an amount of Rs.5,000/- per month has considered the notional income of the deceased i.e., Rs.4,000/- per month, while calculating the compensation. This Court is of the considered opinion that the same is just and reasonable and interference of this Court is unwarranted. The evidence placed by the petitioners on record shows that the deceased was aged about 25 years as on the date of accident. Further, as there is no contrary evidence placed on record by respondent No.1, the Tribunal has considered the same while determining compensation. This Court finds no reason to interfere into the same.
20. Learned counsel for respondent No.2/appellant in M.A.C.M.A.No.1907 of 2019 contended that the Tribunal has not considered future prospects of the deceased while calculating the compensation and further, no amount was granted toward loss of consortium and also granted meager amount towards funeral expenses. On the contrary, learned counsel for respondent No.1/appellant in M.A.C.M.A.No.543 of 2017 contended that the 12 MGP,J MACMA_543_2017 & MACMA_1907_2019 Tribunal has granted compensation on higher side. While so, the learned counsel for petitioners contended that the Tribunal has awarded right amount of compensation in correct apportionments and interference of this Court is unwarranted.
21. Admittedly, the Tribunal has not granted any amount towards future prospects of the deceased. The monthly salary of the deceased is considered at Rs.4,000/- per month. He was 25 years as on the date of the accident, in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others 1, 40% towards future prospects can duly be added to the established income of the deceased. Thus, the future monthly income of the deceased comes to Rs.5,600/- [Rs.4,000/- + Rs.1,600/-(40% of Rs.4,000/-)]. Since the petitioners are four in number and respondent No.2 is also wife of the deceased. There are total five dependents of the deceased, as per the decision of the Apex Court in the case of Sarla Varma v. Delhi Transport Corporation and another 2, 1/4th has to be deducted towards personal and living expenses of the deceased. After deducting, 1 2017 ACJ 2700 2 2009 (6) SCC 121 13 MGP,J MACMA_543_2017 & MACMA_1907_2019 1/4th of the monthly income of Rs.5,600/-, the monthly income comes to Rs.4,200/- [Rs.5,600/- - Rs.1,400/- (1/4th of Rs.5,600/- )]. Further, as per Sarla Varma (cited 2nd supra), the appropriate multiplier is '18' as the deceased was 25 years old at the time of the accident. Thus, applying the multiplier '18', the total loss of dependency comes to Rs.9,07,200/- (Rs.4,200/- X 12 months X
18). In addition to that, respondent No.2 being the wife of the deceased is entitled to Rs.77,000/- under the conventional heads (Rs.70,000/- + 10% enhancement thereon). Hence, in all the total quantum of compensation comes to Rs.9,84,200/-. The Tribunal has granted an amount of Rs.6,58,000/- towards compensation including Rs.10,000/- towards funeral expenses. Hence, the same is enhanced to Rs.9,84,200/-.
22. Coming to the apportionment of the compensation among the petitioners and respondent No.2, the learned counsel for respondent No.2/appellant in M.A.C.M.A.No.1907 of 2019 contended that the Tribunal has apportioned less amount of compensation towards the share of respondent No.2, who is wife of the deceased and has apportioned higher amount towards the petitioners.
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MGP,J MACMA_543_2017 & MACMA_1907_2019
23. Admittedly, from the compensation amount of Rs.6,58,000/- granted by the Tribunal, the Tribunal has apportioned Rs.1,58,000/- to petitioner No.1, who is mother of the deceased, Rs.2,00,000/- to respondent No.2 and Rs.1,00,000/- each to petitioner Nos.2 to 4. This Court is of the considered that respondent No.2 being the wife of the deceased, who has not married again after the death of the deceased is entitled for more amount towards compensation, but the Tribunal has awarded nearly 2/3rd share to the petitioners, who are mother and siblings of the deceased and granted less than 1/3rd share to respondent No.2, who is wife of the deceased. Therefore, this Court is inclined to reapportion the shares of compensation. The total compensation which the petitioners and respondent No.2 together are entitled comes to Rs.9,84,200/- after enhancement granted by this Court. This Court is of the considered opinion that the petitioners have not filed any appeal and have not challenged the impugned order passed by the Tribunal. Therefore, the shares of the petitioners shall be restricted to the amounts as granted by the Tribunal and rest of the amount shall be apportioned to respondent No.2, who is wife of the deceased. In the said 15 MGP,J MACMA_543_2017 & MACMA_1907_2019 circumstances, petitioner No.1 is entitled for Rs.1,58,000/- and petitioner Nos.2 to 4 are entitled for Rs.1,00,000/- each as granted by the Tribunal. Hence, in all the petitioners are entitled for Rs.4,58,000/- out of Rs.9,84,200/- compensation amount granted by this Court and respondent No.2 is apportioned the remaining amount of Rs.5,26,200/- towards her share.
24. Coming to the interest on compensation amount, the Tribunal has awarded interest at 8% per annum on the amount of compensation. This Court does not find any reason to interfere into the same as the same is reasonable.
25. In the result, M.A.C.M.A.No.543 of 2017 is dismissed and M.A.C.M.A.No.1907 of 2019 is allowed by enhancing compensation granted by the Tribunal from Rs.6,58,000/- to Rs.9,84,200/- along with interest as granted by the Tribunal payable by respondent No.1 to the petitioners and respondent No.2 as apportioned by this Court hereinabove. Respondent No.1 is directed to deposit the enhanced amount to the credit of O.P. along with accrued interest within a period of two months from the date of receipt of copy of this judgment. On such deposit, the 16 MGP,J MACMA_543_2017 & MACMA_1907_2019 petitioners and respondent No.2 before the Tribunal are permitted to withdraw the entire amounts as apportioned to them by this Court. The enhanced amount shall be paid to the petitioners and respondent No.2 subject to payment of deficit Court fee, if any, by them respectively. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 25.01.2024 GVR