Telangana High Court
The Andhra Pradesh State Road Transport ... vs Shyam Prasad Nagalla And 4 Others on 7 June, 2024
Author: N. Tukaramji
Bench: P.Sam Koshy, N.Tukaramji
HONOURABLE SRI JUSTICE P. SAM KOSHY
AND
HONOURABLE SRI JUSTICE N. TUKARAMJI
M.A.C.M.A.No.1248 OF 2015
JUDGMENT:
(per Hon'ble Sri Justice N. Tukaramji) This appeal has been preferred by the respondent/APSRTC questioning the liability and the quantum of compensation granted in the decree and award dated 27-12-2014, in MVOP No. 416 of 2012 passed by the XXVII Additional chief judge-cum- Chairman, Motor Vehicle Accident Claims Tribunal, City Civil Courts, Secunderabad.
2. Heard Mr. Sudarshan Reddy, learned senior counsel appearing for the standing counsel for the appellant/APSRTC and Mr. A Sudhakar Rao learned counsel appearing for the respondents/Claim petitioners.
3. For the sake of facility, the parties herein after referred to with their rank before theTribunal.
4. The relevant facts in brief are that, on 13.06.2009, while Mrs.Lakhmi Nagalla/deceased along with her daughter was travelling in a Honda city car bearing registration number AP 37 AL 7227 (for short 'the car') near the circle, leading to Prattipadu, a bus of the respondent/APSRTC bearing registration number AP 11 Z 860 (for short the bus) came in rash and negligent manner and at high speed 2 PSKJ&NTRJ Macma_1248_2015 abruptly turned the bus without any signal or indicator. In the meantime, the car, which was proceeding straight on highway rammed into the bus, which resulted into her instantaneous death and grievous injuries to her daughter. The police registered a crime and charge sheeted the driver of the bus. Thereupon, the petitioners i.e. husband, daughter and son filed claim pleading that the deceased was aged 43 years, permanent resident of USA and as software engineer and through real estate was earning $ 11,600 per annum and used to spend all her earnings on family. Thus for loss of dependency sought compensation of Rs.9 Crores. The Tribunal considering the materials placed on record awarded Rs.8,05,72,476/- with interest at 7.5% per annum from the date of petition till realization against the respondent/APSRTC. 5(a) In appeal, learned senior counsel appearing on behalf of the appellant/respondent/APSRTC (hereinafter, 'the respondent') would submit that the Tribunal gravely erred in concluding the rash and negligent driving of the driver of the bus without proper appreciation of facts and circumstances on record. It is evident that the car struck the bus at left rear foot board, while taking turn at Prattipadu Junction. By common knowledge, it can be construed that a vehicle of the size of a bus cannot move at high speed while taking turn. Indeed, the car striking the bus at the rear board is indicating that the bus had almost 3 PSKJ&NTRJ Macma_1248_2015 crossed the road, but the car came in uncontrollable speed and struck the bus and this situation is explicating the negligent driving of the car, rather the bus.
5(b) Further contended that the presence of eye witness/PW4 is not reflected in the Police record, indicating the chance of planting his presence. Nonetheless, in criminal the case the driver of the bus was acquitted and the judgment in categorical terms recorded that there was no negligence of the driver of the bus in the accident. In addition the driver and conductor of the bus as RWs.1 and 2 deposed that, while the bus negotiating turn, they have taken all possible precautions. The tribunal by considering this material should have held that there was no negligent driving of the bus and exonerated the respondent. 5(c) In addition, submitted that, all things considered, at the best, the Tribunal should have considered contributory negligence at minimum extent on the part of the bus and assessed the compensation by reducing the multiplier as per the settled propositions in the cases of foreign employed Indians. Thus, prayed for interference and to exonerate the liability of the respondent.
6. In support to the pleadings, learned senior counsel, cited the authorities (a) United India insurance company Ltd and others v. Patricia Jean Mahajan 2002 6 SCC 281 and pleaded that Honourable 4 PSKJ&NTRJ Macma_1248_2015 Supreme Court has clarified in the authority that the exchange rate of dollar against rupee is relevant only for compensation of the amount of loss of dependency and has to scale down the multiplier by considering the economic situation of both the nations. (b) Oriental insurance company Limited v. Deo Patodi and others, 2009 13 SCC 123 to point out that, the deceased though got employment in USA, held that considering the cost/standard of living of the western countries cannot be followed in assessment of income and in case, the victim was earning salary in US dollars, a lower multiplier has to be applied. (c) In Chenderi Devi and another v. Jaspal Singh and others 2015 11 SCC 703 pleaded that, the Hon'ble Supreme Court, while considering a case of deceased Indian cook who was working in a restaurant in Germany, instead of salary in Euros, by estimating how much a cook of similar nature would have earned in India in the relevant year, fixed monthly income of the deceased. Hence, prayed for, notionally fixing the income in Indian terms to assess the compensation.
7. The counsel for the claim petitioners refuted the contentions raised by the respondent/APSRTC and pleaded that the evidence of the injured witness/PW1 and the eyewitness/PW-2, coupled with the facts elicited in the cross examination of the driver and conductor of the bus/RWs. 1 and 2 are suitably proving the negligent driving of the bus 5 PSKJ&NTRJ Macma_1248_2015 in the accident. Further the judgment of criminal Court is not binding on the tribunal and the fact of negligence and the compensation are to be independently discerned by the materials brought on to record. By these requirements, the tribunal had properly reasoned the evidence in determining the rash and negligent driving of the bus and awarded the compensation. Thus, no merit in the appeal.
8. We have considered the submissions made by the learned counsel and perused the materials on record.
9. The accident, involvement of the vehicles and death of the deceased are not in dispute. Likewise, the manner of occurrence, the fact that while the bus was taking turn towards Prattipadu from the Highway, the car crashed into the bus near its rear footboard are in agreement.
10. At the outset, as rightly pointed out by the respondents/petitioners that the finding of the criminal Court is not binding on the tribunal, essentially for the reason that the prosecution would be for the negligent act of the driver in causing death or injuries, beyond reasonable doubt. Whereas, the tribunal has to consider negligent driving of the vehicle in causing accident by reason of preponderance of probabilities. Thus the plea of the appellant to accept 6 PSKJ&NTRJ Macma_1248_2015 and conclude the rash and negligent driving, resting on the observations of the criminal Court is unacceptable.
11. By the record, it is evident that the accident occurred on the National highway while the bus from its assigned lane on highway, while crossing the roadway of opposite vehicles on the highway to reach the road of Prattipadu, on which the car was proceeding the accident occurred.
12. In this position, the car, which was running on its way on national Highway i.e., the roadway of the opposite lane to the bus, shall have right of way. Therefore, the driver of the bus is endowed with responsibility to take every care and caution while crossing the specified road way of the opposite vehicles, in taking turn, more particularly on the national Highway. It is common knowledge that the national highways are designed for conveyance of vehicles at certain speed. As such, only on confirmation that there are no vehicles on the road way of the opposite lane of the Highways, the driver of the bus should have crossed the road obliging the vehicles right of way on that road.
13. However, the RWs.1 and 2 had categorically stated that, while taking turn the conductor of the bus stood on the front foot board and 7 PSKJ&NTRJ Macma_1248_2015 instructed the driver. Nonetheless, in the cross examination admitted that, they did not even observe the car. It is also admitted that the place of occurrence is with heavy traffic.
14. In this admitted position, when the bus has to horizontally cross the road blocking the roadway of the national Highway against the right of way of the vehicles plying on that lane, the level of care, caution and responsibility multiplies on the driver of the bus. But the statement that they did not even observe the car, itself is explaining the Care taken by the driver of the bus, while crossing the National Highway.
15. These facts are amply establishing that the driver of the bus failed to take the peremptory care expected from a dutiful driver under the similar circumstances. As the conduct of the driver of the bus lacked reasonable care inexercising the legal duty owed on him to foresee and avert the harm, and in spite of the burden of necessary precautions to eliminate or reduce the risk of harm, as he had acted in breach of his duty of care towards the vehicles plying on their assigned roadway, particularly against the car, it shall be held that, only for the negligent driving of the bus, the accident occurred. As such, the liability of the respondent/APSRTC to make good loss to the petitioners stands established.
8 PSKJ&NTRJ Macma_1248_2015
16. Viewed from another angle, the appellant has not proposed any act of rashness or negligence on the part of the deceased. Indisputably the deceased was only the occupant of the car. Even if a fraction of rashness or negligence of the driver of the car is taken into account, at the best the accident has to be held as one resulted out of composite negligence of the drivers of bus and the car. Thus, from the point of petitioners/claimants' view, in the case of composite negligence they are legally entitled to claim compensation from either of the vehicles involved in the accident. Therefore the petitioners' claim against the bus for compensation and its liability to pay the compensation are perfectly justified and the respondents cannot claim exception to absolve its liability.
17. For the aforesaid, rash and negligent driving of the bus in causing accident, and consequent fastening of the liability against the respondent/APSRTC determined by the tribunal deserves to be and is accordingly affirmed.
18. It is settled proposition that the compensation should meet the pecuniary loss to the dependants and in evaluation of compensation annual dependency has to be determined in terms of losses due to sudden loss of life. In determination of age and the earnings of the deceased at the relevant time are the determinative factors in arriving at 9 PSKJ&NTRJ Macma_1248_2015 the multiplicand whereupon relevant multiplier has to be applied to arrive at compensation for loss of dependency.
19. In regard to compensation in the authority cited by the respondent i.e. Patricia Jean Mahajan (supra) the Hon'ble Supreme Court has categorically held that the exchange of rate of dollar against the rupee is relevant for assessment of compensation of loss of dependency.
20. In the present case, the tribunal having regard to the oral evidence of the accounts manager of the deceased employer company/PW-2 and the appointment letter/Ex.A-6, the statement of the chartered accountant/PW-3/Ex.A-8, income tax record, letters from Internal Revenue Service (USA Department of Treasury)/Exs:A-9 and A-10 approval of return filed, the avocation of the deceased as technical architect and software consultant and real estate income at US $ 11,600 per month, has been believed by the tribunal, in absence of any impropriety and rebuttal. As this conclusion is substantiated by the evidence placed on record, the conclusion of monthly income at $ 11,600 and annual income of 1,39,200 of the deceased, justifies confirmation.
10 PSKJ&NTRJ Macma_1248_2015
21. The aspect of future prospects has been considered by the Hon'ble Supreme Court in the authorities of Sarla Verma and others vs. Delhi Transport Corporation and another 1 and National Insurance Company Ltd. vs. Pranay Sethi and others 2. Though the deceased is non-resident Indian (NRI)/permanent resident of USA of Indian origin, the income is bound to increase had the deceased lived her eligible employment period. The principle of awarding future prospects does not give any discrimination as to application to the Indian and the persons living abroad. Therefore, while computing compensation accounting loss of future prospects would be proper. As such in terms of the dictum in Sarla Verma (supra) and Pranay Sethi (supra) the tribunal has added 30% of income towards loss of future prospects. Thus, no reason is found to interfere on this aspect.
22. While computing the compensation the tribunal has deducted 1/3rd of income of the deceased towards personal living expenses. The Hon'ble Supreme Court in Sarla Verma (supra) and Pranay Sethi (supra) also considered this aspect and depending on the marital status, number of dependants, the percentage of deduction towards personal living expenses have been determined. In Patricia Jean Mahahan (supra) the Hon'ble Supreme Court has approved the 1 2009 ACJ 1298 2 (2017) 16 SCC 860 11 PSKJ&NTRJ Macma_1248_2015 deduction of 1/3rd of the income towards personal expenses under this head. This view is also affirmed and followed in Deo Patodi (supra) wherein it was held that deduction of 1/3rd towards personal living expenses is the ordinary rule in India. Thus it shall be held that the tribunal was proper in deducting personal living expenses of the deceased, at 1/3rd of her income.
23. In regard to multiplier the tribunal took '14' as per the prescription, in the authority of Sarla Verma (supra). The Hon'ble Supreme Court in Patricia Jean Mahahan (supra) while assessing compensation observed that multiplier method is the best method. However, while counting the facts therein that the deceased who was aged about 42 years, an American Doctor of Indian origin died in road accident in India, the multiplier adopted by the tribunal at '7' and on appeal by the High Court at '13' was reduced to '10' by observing that there is disparity in wage earnings in both the countries an the conversion of income of the deceased to Indian rupee would result in huge amount.
24. Similarly the deceased in this petition was aged 43 years and calculation of actual income after deductions would give rise to huge amount as the earnings in USA has to be converted in Indian rupee. Having regard to the directions of the Hon'ble Apex Court in Patricia 12 PSKJ&NTRJ Macma_1248_2015 Jean Mahahan (supra)that considering the economic situations of both the countries directed for adoption of appropriate multiplier, and the age and other factors of the present matter are similar and as the deceased's earnings in foreign currency being converted into Indian rupee, we are of the considered opinion that adopting the multiplier as in the case in Patricia Jean Mahahan (supra) would be just and proper. Accordingly, the multiplier is modified to '10' instead of '14'.
25. Thus to arrive at compensation the multiplicand has to be multiplied with the multiplier i.e. '10' would give the total of $12,06,400. If this sum is multiplied with relevant conversion value applied, the total amount would come to Rs.5,73,87,482/-. This amount shall be the compensation for loss of dependency.
26. That apart, as per the directives in the authority Pranay Sethi (supra) and United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and others 3 the petitioners are entitled for spousal and parental consortium at Rs.48,400/- each (i.e. x 3) and also Rs.36,300/- towards loss of estate and funeral expenses.
27. For the aforesaid, in all the petitioners are entitled for compensation of Rs.5,75,68,982/- (Rupees Five Crores Seventy five 3 2021(11) SCC 780 13 PSKJ&NTRJ Macma_1248_2015 lakhs sixty eight thousand nine hundred and eighty two only). The rate of interest and the ratio of apportionment among the petitioners shall remain as per the impugned order. The respondent/APSRTC is directed to deposit the remaining compensation amount within four weeks from the date of receipt of a copy of this order. Accordingly, the impugned order stands modified.
28. In the result, the appeal is allowed in part. No costs.
As a sequel, pending miscellaneous petitions if any, stands closed.
_______________
P. SAM KOSHY, J
_______________
N.TUKARAMJI, J
Date: 07.06.2024
skj