Andhra Pradesh High Court - Amravati
Ap State Road Transport ... vs Thota Padmaja Shalini Rajitha ... on 25 June, 2021
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
AND
HON'BLE MS. JUSTICE J. UMADEVI
M.A.C.M.A. No.302 of 2010
JUDGMENT: (Per Hon'ble Sri Justice U. Durga Prasad Rao)
Challenging the order dated 16.12.2009 in M.V.O.P.No.676 of
2005 passed by learned Chairman, Principal Motor Accident Claims
Tribunal-cum-Principal District Judge, Nellore granting compensation of
Rs.48,58,400/- against the claim of Rs.70,00,000/- for the death of one Sri
Thota Ramesh Babu in APSRTC Bus accident, the respondent-APSRTC
filed the instant appeal.
2. The matrix of the case is thus:
(a) The deceased was a Software Engineer working in Satyam
Computer Services at Hyderabad. On 15.07.2005 at about 07:30 P.M.
when the deceased was proceeding as a pillion rider on a two wheeler
driven by his colleague Racharla Siva Prasad on Venkatagiri Cross Road
No.5, Jubilee Hills, Hyderabad, the offending APSRTC Bus bearing
No.AP10Z-1581 being driven by its driver at high speed and in a rash and
negligent manner went and dashed behind the two wheeler, due to which,
the deceased who was the pillion rider fell down and the bus ran over him
causing his instantaneous death. The two wheeler struck in between bus
and its front car and thereby the rider sustained injuries. It is contended
that the accident was occurred due to fault of bus driver and due to the
sudden demise of the deceased, his family members lost fender. On these
pleas the petitioners who are the wife, minor children and father of the
UDPR,J & JUD,J
2 MACMA No.302/2010
deceased filed O.P.No.676/2005 and claimed Rs.70,00,000/- as
compensation against the Managing Director, APSRTC. Respondent filed
counter and opposed the claim petition mainly contending that there was
no fault of the bus driver. It is contended when the offending bus reached
the accident spot, there was heavy rain and at that time, the rider of the
Kinetic Honda came in front of the bus from an adjacent road in a rash
and negligent manner and on seeing the same, the driver of the bus
applied sudden brakes and the rider of the motor cycle lost control over
his vehicle and dashed the bus thereby the accident was occurred. It is
contended that there was no fault of the driver and hence the respondent is
not liable for the claim of the petitioners. It is further contended that the
claim is excessive and exorbitant.
(b) During trial, PW1 to PW3 were examined on behalf of the
petitioners and exhibits A1 to A7 were marked and on behalf of
respondent, RW1 was examined.
(c) The Tribunal having regard to the eye witness account of PW2,
coupled with documentary evidence such as Ex.A1-FIR, Ex.A2-Inquest
report, Ex.A3-post-mortem certificate, Ex.A4-Motor Vehicles Inspector's
report and Ex.A5-Charge Sheet came to conclusion that the bus driver
was responsible for the accident. In the process, the Tribunal did not
agree with the evidence of RW1 who was the conductor of the bus. It also
observed that admittedly RW1 was issuing tickets at the time of accident
and hence, there was no possibility for him to observe the manner of
occurrence of the accident. Then, considering the evidence of PW3 who
is the officer in Satyam Computers and Ex.A6- salary certificate and
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3 MACMA No.302/2010
Ex.A7-ID card issued by the employer, the Tribunal awarded
compensation of Rs.48,58,400/- with proportionate costs and interest @
7.5% p.a against the respondent as follows:
Loss of dependency - 48,38,400-00
Loss of consortium - 10,000-00
Funeral expenses - 10,000-00
------------------
TOTAL - 48,58,400-00
-------------------
Hence, the appeal by the APSRTC.
3. Claimants also filed cross objections along with delay condonation
petition which was allowed vide separate order and cross objections were
admitted. In the cross objections, the claimants challenged the award on
the ground that compensation was awarded for a paltry sum without
having regard to the facts such as age, income and dependency of the
claimants and also without reference to the guidelines issued by the
Hon'ble Apex Court in the case of National Insurance Company
Limited v. Pranay Sethi1. It is contended that the Tribunal has not
included any amount to the salary of the deceased towards future
prospects. It is also contended that the multiplier selected by the Tribunal
was not correct and thereby compensation for loss of dependency was
drastically reduced. It is further contended that compensation granted
under other heads such as loss of consortium, funeral expenses was also a
pittance which is required to be enhanced suitably.
MANU/SC/1366/2017 = AIR 2017 SC 5157 = 2017 (6) ALD 170 SC
UDPR,J & JUD,J
4. Heard the arguments of Sri Aravala Rama Rao, counsel for the
appellants, and Sri Koppula Gopal, counsel for claimants/cross-
objections.
5. Severely criticising the order of the Tribunal resting responsibility
entirely on the bus driver, learned counsel for the appellant Sri A.Rama
Rao argued that the fault in fact lay with the rider of the Kinetic Honda as
he suddenly came from a side lane on to the main road i.e., accident spot
without giving any caution and though the driver of the bus tried his best
to stop the bus, the two wheeler went and dashed the bus and thereby the
accident was occurred. Learned counsel strenuously argued that the place
of accident was admittedly a busy locality and it was raining at the time of
accident. As such it was not possible for the driver of any vehicle to drive
the vehicle at high speed at the place of accident. Therefore, the
allegation of the claimants that the bus driver drove the bus at high speed
and went behind the Kinetic Honda and hit the same twice or thrice and
caused the accident is a concoction and beyond the pale of truth. The
Tribunal woefully failed to consider the factual background relating to the
accident and went by the documentary evidence relating to the criminal
case and also the interested evidence of PW2, who is the colleague of the
deceased and erroneously held as if the bus driver was at fault. Learned
counsel thus at the first instance argued to set aside the award of the lower
Tribunal holding that the bus driver was innocent. He alternatively
argued that this Court may hold that the rider of the Kinetic Honda is also
guilty of contributory negligence.
UDPR,J & JUD,J
Nextly he argued that the Tribunal erred in applying a high
multiplier of '14.4' without any plausible evidence showing the age of the
deceased. He further argued that the Tribunal committed serious error in
taking the monthly income of the deceased as Rs.39,916/-. He thus
prayed to allow the appeal.
6. Per contra, learned counsel for the cross-objectors/claimants Sri
Koppula Gopal argued that Ex.A1-FIR, Ex.A5-charge sheet coupled with
the evidence of PW2, who is an eye witness, clearly depict that the bus
went behind the Kinetic Honda at high speed and dashed it causing the
accident. That being the fact relating to the accident, the fault cannot be
attributed to the rider of the Kinetic Honda. He further argued that the
lower Tribunal rightly rejected the evidence of bus conductor as he is an
interested witness and he was issuing tickets at the relevant time and
therefore, he had no occasion to watch the accident. Nextly, learned
counsel argued that the Tribunal has not added any amount to the salary
of the deceased towards future prospects and thereby the compensation
was drastically reduced. Further, the multiplier selected by the Tribunal
was also not in accordance with the rulings of the Hon'ble Apex Court.
He thus prayed to dismiss the appeal and allow the cross objections.
7. The point for consideration is whether the award passed by the
lower Tribunal is factually and legally sustainable or needs
reconsideration?
8. Point: So far as the cause of accident is concerned, according to the
claimants, the bus driver went behind the Kinetic Honda and dashed and
UDPR,J & JUD,J
thereby the deceased who was the pillion rider, fell down and bus ran over
him and the rider also fell down and suffered injuries. However, the
contention of the appellant/APSRTC is that when the bus reached the
accident spot i.e., Venkatagiri Cross roads, it was raining heavily and at
that time the Kinetic Honda suddenly came in front of the bus from
adjacent road being driven by its rider in a rash and negligent manner and
at a high speed and on seeing the same the bus driver applied sudden
brakes, but the rider of the two wheeler lost control and dashed the bus
and thereby the accident was occurred. The claimants in order to
establish their version examined PW2, whereas the APSRTC examined its
conductor as RW1. The Tribunal accepted the version of the claimants
placing reliance on the oral evidence of PW2 and other documentary
evidence and discarded the evidence of RW1 as he admitted that the time
of accident he was issuing tickets to the passengers of the bus.
9. We gave our anxious consideration to know whether the finding of
the lower Tribunal was correct. Admittedly the accident was occurred
near Venkatagiri Cross roads in the night time at about 17.30 hours.
PW2, who is said to be an eye witness, admitted in the cross-examination
that the accident spot is a busy locality. Of course he denied the
suggestion that for that reason, there was no chance to drive the bus
speedily. However, his denial is not be all and end all of the issue as it is
a common sense that in a busy locality it will be difficult for any driver to
drive a vehicle at high speed. Besides, as per the version of RW1, at the
time of accident it was raining heavily, which fact is not controverted. So,
UDPR,J & JUD,J
in this backdrop, we cannot accept the plea of the claimants that the bus
driver drove the bus at high speed and in a rash and negligent manner.
Then the inevitable question that would arise is, if the bus driver was not
driving the vehicle at high speed, what made him to hit behind the Kinetic
Honda. This must be obviously for the reason that the two wheeler must
have suddenly appeared in front of the bus by coming from a side lane as
stated by RW1 in his evidence. As otherwise, there was no occasion for
the bus driver to hit the Kinetic Honda on its backside. This is the only
logical conclusion that can be deduced from the admitted facts and
acceptable evidence of either side.
(a) So, on a conspectus of the facts and evidence, we hold that the
rider of Kinetic Honda too contributed for the accident. Accordingly, we
fix the liability between bus driver and the rider of the Kinetic Honda in
the ratio 75:25.
(b) Then we examined compensation awarded under different
heads. So far as compensation for loss of dependency is concerned,
though lower Tribunal has correctly arrived at the net monthly income of
the deceased after deduction of tax at Rs.41,490/-, however it committed
error in adding suitable amount to his net salary towards future prospects.
The lower Tribunal added minuscule towards future prospects to his net
monthly salary of Rs.41,490/- and rounded it off to Rs.42,000/-. Thus, the
addition towards future prospects is almost a negligible sum which is
against the guidelines issued by the Hon'ble Apex Court in Sarla Verma
UDPR,J & JUD,J
and Ors. Vs. Delhi Transport Corporation and Ors2 case and National
Insurance Company Limited v. Pranay Sethi (1 supra) case. In Pranay
Sethi's (1 supra) case, the Hon'ble Apex Court observed that an addition
of 50% of actual salary to the income of the deceased should be made
towards future prospects if the deceased had a permanent job and was
below the age of 40 years. In the instant case, admittedly the deceased
was aged about 36 years, so 50% of the net salary should be added
towards future prospects. In such an event, the salary plus future
prospects would come to Rs.62,235/- [Rs.41,490+Rs.20,745]. As the
number of dependants of deceased are 4, 1/4th has to be deducted towards
personal expenditure. So, the net monthly contribution of the deceased to
his family comes to Rs.46,676/- (62,235 X 3/4). The annual contribution
of the deceased which serves the purpose as multiplicand comes to
Rs.5,60,112/- (46,676 X 12).
(c) Then the selection of multiplier is concerned, having regard to
the age of deceased as 36 years, the suitable multiplier will be 15 as
mentioned in the table provided in Sarla Verma's (2 supra) case. Thus
the compensation for loss of dependency comes to Rs.84,01,680/-
(Rs.5,60,112 X 15).
(d) In our view, the compensation awarded under other heads was
reasonable and needs no interference. Thus, the total compensation
payable to the claimants is as follows:
2009 ACJ 1298 = MANU/SC/0606/2009
UDPR,J & JUD,J
Loss of dependency -84,01,680-00
Loss of consortium - 10,000-00
Funeral expenses - 10,000-00
------------------
TOTAL - 84,21,680-00
-------------------
Since the liability of the driver of APSRTC was held to be 75%, the
appellant/APSRTC is liable to pay only Rs.63,16,260/-
(Rs.84,21,680X75/100).
10. In the result, the M.A.C.M.A No.302 of 2010 filed by the
appellant/APSRTC and the cross objections filed by the claimants are
disposed of with the following directions:
Compensation awarded by the lower Tribunal is enhanced from
Rs.48,58,400/- to Rs.63,16,260/- with proportionate costs and interest @
7.5% p.a from the date of O.P till the date of realization on the original
compensation amount of Rs.48,58,400/- only. The claimants are not
entitled to any interest on the enhanced compensation. The
appellant/APSRTC shall deposit the compensation amount, costs and
interest within two (2) months from the date of this judgment, failing
which execution can be taken out against it by claimants.
Pa As a sequel, interlocutory applications, if any pending, shall stand
closed.
_________________________
U. DURGA PRASAD RAO, J
________________
J. UMADEVI, J
25.06.2021
krk
UDPR,J & JUD,J
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
AND
HON'BLE MS. JUSTICE J. UMADEVI
M.A.C.M.A.No.302 of 2010
25th June, 2021
krk
