Andhra Pradesh High Court - Amravati

The Vc Md, Apsrtc, Hyderabad Anr vs Muppasani Krishnaveni, Prakasam ... on 14 February, 2023

        HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO


                  M.A.C.M.A. No.776 OF 2015

                              AND

                 M.A.C.M.A. No.1138 OF 2015

COMMON JUDGMENT:

 1. Challenging the award and decree dated 10.01.2015 in

    M.V.O.P.No.326 of 2011 passed by the Chairman, Motor

    Accidents Claims Tribunal-cum-V Additional District Judge,

    Fast Track Court, East Godavari District, Rajahmundry, (for

    short "the tribunal"), the respondents have preferred the

appeal in M.A.C.M.No.776 of 2015 questioning the award

passed by the tribunal. On the other hand, the claimants

have preferred M.A.C.M.A. No.1138 of 2015 seeking

enhancement of compensation.

2. For convenience, the parties will hereinafter be referred to as

arrayed in the M.V.O.P.

3. The claimants have filed a petition under Section 166 (1) (c)

and 168 of the Motor Vehicles Act claiming compensation

Rs.20,00,000/- on account of the death of Muppasani

Aravinda Babu (hereinafter referred to as "the deceased") in a

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motor vehicle accident that occurred on 26.09.2010. The first

claimant is the wife, claimants 2 to 4 are the children,

claimant 5 is the mother, claimant 6 is the sister, and

claimant 7 is the brother of the deceased.

4. The case of the claimants is that on 26.09.2010 at about 8

am the deceased and his father, Srinivasulu, started from

Pamur in their car to go to Ongole to meet their auditor, when

they reached Anjaneya Swamy temple near Valetivaripalem on

Pamur-Kandukur road, one RTC bus bearing No.AP 11 Z

1351 (hereinafter referred to as the 'offending vehicle') came in

opposite direction and dashed against the car, as a result, the

deceased sustained multiple injuries and died on the spot and

his father died while undergoing treatment.

5. The first respondent appeared through his counsel and filed

its written statement denying the material allegations made in

the claim petition and contended that there was no negligence

on the part of the driver of the RTC bus, but there is

negligence on the part of the driver of the car the deceased

who drove the car and caused the accident, and as such, they

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are not responsible for the payment of compensation to the

claimants.

6. The second respondent remained exparte.

7. Based on the pleadings, the tribunal framed relevant issues.

To substantiate the claim, on behalf of the claimants, P.Ws.1

to 3 got examined and marked Exs.A.1 to A.10. On behalf of

the first respondent, the driver of the RTC bus, R.W.1 was

examined, but no documents were marked. After evaluating

the evidence on record, the tribunal held that the accident

occurred due to the rash and negligent driving of the RTC bus

driver; and awarded compensation Rs.18,50,000/- with

interest at 9% per annum.

8. Heard the learned counsel appearing for both parties.

9. In the grounds of appeal, and during the hearing, learned

counsel for the claimants has contended that the tribunal

erred in deducting 1/3rd of the personal expenses of the

deceased, erred in not awarding future prospects, and also

failed to grant reasonable compensation under the head loss

of estate, consortium and nourishment to the children of the

deceased.

MACMA_776_2015 & MACMA_1138_2015

10. Learned counsel for the respondents has contended that the

compensation awarded by the tribunal is highly excessive; the

claim petition is bad for the non-joinder of the necessary

party i.e. the insurer of the car.

11. As seen from the grounds of appeals and the material on

record and the submissions made on either side, there is no

dispute about the occurrence of the accident in question. It is

also not in dispute that the death of the deceased was due to

the injuries sustained in the accident. The said fact is also

established by Ex.A.2, inquest report, Ex.A.3, PME report,

and Ex.A.5, charge sheet.

12. Now the points for consideration are,

I. Whether the tribunal is justified in holding that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle.

II. Whether the quantum of compensation awarded by the tribunal is just and reasonable and requires modification.

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POINT No.I:

a. To prove the manner of the accident, the claimant mainly

relied on the evidence of P.W.2, P. Venkata Subbaiah, who is

said to be an eyewitness to the accident. Though P.W.1, the

wife of the deceased, testified about the manner of the

accident, admittedly, she is not an eyewitness to the accident

in question.

b. According to the evidence of P.W.2, on the date of the

accident, he was going to Pamur in the RTC bus sitting in the

front seat, when the bus reached Anjaneya Swamy temple

near Valetivaripalem, some passengers cried loudly and

requested to stop the bus and the conductor also gave a

signal, thereby the driver of the bus turned his head to

backside and the bus went to the wrong side and dashed the

car, which was coming in opposite direction, as a result, the

driver of the car, the deceased herein, died on the spot and

the other person in the car, father of the deceased, received

multiple injuries. After the accident, he alighted the bus and

identified the persons injured in the accident.

c. On behalf of the respondents, the driver was examined as

R.W.1. He stated that the accident occurred due to the

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negligence of the car driver. According to his evidence, the

culvert was under repair on the left side of the road, and due

to that, he turned the bus towards the right side at a low

speed, but the driver of the car (deceased) did not observe and

dashed the RTC bus. In cross-examination, he admitted that

after the investigation, the police filed a charge sheet against

him, which is pending. The documents that were placed

before the tribunal clearly shows that the accident occurred

due to the rash and negligent driving of the driver of the

APSRTC bus. The respondents have not placed any material

before the court to show how they got the source of

information about the accident.

d. This court views that either negligence or contributory

negligence must be proved like any other fact, there is no

different standard for proving negligence or contributory

negligence. But they cannot be decided on suspicion or

surprise. The pleas taken in the counter will remain as pleas

as they are not substantiated by acceptable, relevant and

legal evidence. To prove the contributory negligence there

must be cogent evidence. In the instant case, there is no

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specific evidence to prove that the accident has taken place

due to the rash and negligent driving of the motorcyclist. In

the absence of any cogent evidence to prove the plea of

contributory negligence, the doctrine of common law cannot

be applied in the present case. Although no details of

contributory negligence are provided in the counter, and no

evidence is provided other than an allegation of a stray

sentence in the counter, the manner in which the accident

occurred, leaves no doubt that the driver of the offending bus

was solely negligent in causing the said accident. While

granting relief under the Act, the courts are not to be bound

by mere technicalities but should adopt a liberal approach by

giving the law a wider construction and meaning that would

favour the victims.

e. According to the evidence of R.W.1, the road was under repair

on the left side of the road and due to that, he turned the bus

towards the right side at a low speed. It is not the evidence of

R.W.1 that he has taken all the precautions while taking turn

towards the right side. In the absence of such evidence on

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record, it is difficult to conclude that R.W.1 had taken all

precautions by applying signal lights etc.

f. The contention of the respondent-Corporation regarding the

non-joinder of necessary parties is concerned, this Court

views that since the accident occurred due to the negligence

of the R.T.C. bus driver, the claimants did not implead the

insurer of the car as a party to the proceedings. Taking into

consideration the facts, the tribunal has come to a conclusion

that the R.T.C. bus driver is responsible for the accident,

which cannot be found fault with. Accordingly, point No.1 is

answered.

POINT No. II

a. The compensation under the head loss of dependency is

concerned; there is no dispute regarding the death of

Muppasani Aravind Babu (deceased herein) due to the

injuries sustained in the accident. The 1st claimant is the wife,

claimants 2 to 4 are the children, claimant 5 is the mother,

claimant 6 is the sister and claimant 7 is the brother of the

deceased. The relationship of the claimants with the deceased

is not in dispute.

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b. The tribunal considered the age of the deceased as 32 years

and applied the multiplier '17' as per the second schedule of

the Motor Vehicles Act. In a claim petition filed under Section

166 of the Motor Vehicles Act, the tribunal ought to have

adopted the multiplier as provided by the Apex Court in

Sarala Verma v. Delhi Transport Corporation1.

c. It is the contention of the claimants that the deceased was

having fertilizers shop and a share in Vijayalakshmi

Chitralaya and Ravi Kalamandi cinema theatre and a rice mill

in Pamur and used to earn Rs.5,00,000/- per annum. To

prove the same, the claimants also adduced the evidence of

P.W.3, an income tax auditor. According to his evidence, the

deceased was having fertilizer shop in the name of Muppasani

Sujatha, wife of Srinivasulu and mother of the deceased and

they are paying income tax. He has not filed any document

that he is a chartered accountant and he had not filed any

record to show that he was filing income tax returns for the

deceased. In the absence of the said evidence, the tribunal

has not considered the evidence of P.W.3.

2009 ACJ 1298

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d. The material on record shows that the father of the deceased

also died in the said accident. They relied on Ex.A.10, an

insurance policy, which goes to show that both the deceased

are paying amounts under the said policy. Though the

claimants have not placed any record to show the business of

the deceased and his father, they relied on Ex.A.6-B

pharmacy certificate, Ex.A.7-Diploma in pharmacy certificate

and Ex.A.8-Pharmacist registration card of the deceased. The

said documents show that the deceased was a graduate of

pharmacy.

e. In the absence of proof of income, it is appropriate to refer to

the judgment of the Division Bench of the erstwhile High

Court of Andhra Pradesh in B. Ramulamma v. Venkatesh

Bus Union, Lingarajapuram, Bangalore and another 2,

wherein it was held that in the absence of proof of income, the

notional income for an Engineering Student was considered

between Rs. 12,000/- p.m. and Rs. 15,000/- p.m. In Ashwani

Kumar Bhandari v. Darshana3 a Single Judge bench of the

Punjab and Haryana High Court took the income of B.

2011 ACJ 1702

2011 ACJ 2082

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Pharmacy Student in a case of death as Rs. 10,000/- p.m.

Relying on the aforesaid judgments, this Court views that

there is every possibility of getting Rs.9,000/- per month for a

graduate of B-pharmacy.

f. Regarding the award in respect of the future prospectus is

concerned, the tribunal did not award any amount towards

the future prospectus. In National Insurance Company Ltd.

vs Pranay Sethi4 the Apex Court, at paragraph 61, held that,

(iii) When determining the income, an addition of 50% of the actual salary to the income of the deceased towards prospects, where the deceased had a permanent job and was below the age of 40, should be made. The addition should be 30% if the age of the deceased is between 40 to 50 years. If the deceased was between 50 to 60 years, the addition should be 15%. Actual salary should be read as basic salary less tax.

(iv) If the deceased was self-employed or on a fixed salary, an additional 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary computation method. The established income means the income minus the tax component.

(2017) ACJ 2700

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g. Here, in this case, the deceased was 32 years old. This Court,

relying on Ex.A.6-B.Pharmacy certificate of the deceased and

Ex.A.7-Diploma in Pharmacy certificate of the deceased,

considered that the deceased was a graduate in B-pharmacy

and also considered self-employed, and as such, this Court

views that an addition of 40% of the established income

should be the warrant towards future prospectus. The

monthly income, including a future prospectus, arrives at

Rs.12,600/- (9,000+ 3,600).

h. The tribunal deducted 1/3rd of the earnings of the deceased

towards the personal and living expenses of the deceased and

erred in applying the multiplier '17' following the second

schedule of the M.V. Act. The same is questioned by the

claimants by contending that the dependants are 7 in

number, and the tribunal is required to be deducted 1/7th of

the income towards the personal and living expenses of the

deceased. I have gone through the claim petition, wherein it

is mentioned that the first claimant is the wife, claimants 2 to

4 are the children aged 10 years, 8 years and 5 years old

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respectively, claimant 5 is the mother and claimants 6 and 7

are the sister and brother of the deceased.

i. In Sarala Verma v. Delhi Transport Corporation 5 the Apex

Court has provided the standard deduction of one-third

(1/3rd) where the number of dependent family members is 2 to

3 and one-fourth (1/4th) where the number of dependant

family members is 4 to 6. In the facts of the case, this Court

views that the tribunal is erred in deducting the personal and

living expenses. Claimants 6 and 7 are majors and they are

not dependent on the earnings of the deceased. And hence,

the deceased's contribution of earnings to the family comes to

Rs.9,450/- (Rs.12,600 (minus) 1/4th of the personal and living

expenses Rs.3,150/-) and applying the multiplier '16' for the

persons aged 31 to 35 years, which is provided by the Apex

Court in Sarala Verma's case and thereby computed the loss

of dependency at Rs.18,14,400/-.

j. Coming to the consideration of funeral expenses, loss of

estate and loss of consortium, in Pranay Sethi's case referred

to supra, the Apex Court held, in paragraph 61, that:

2009 ACJ 1908

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"(viii) Reasonable figures under conventional heads, namely, loss of estate, loss of consortium and funeral expenses, should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at 10% every three years."

k. In Magma General Ins. Co. Ltd., v. Nanu Ram, at paragraph

8, the Apex Court held that:

"(8.6)...the Motor Vehicles Act is beneficial and welfare legislation. The Court is duty-bound and entitled to award 'just compensation, irrespective of whether any plea on that behalf was raised by the claimant.

....

(8.7) A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (S.C.), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is the loss of consortium.

In legal parlance, 'consortium' is a compendious term which encompasses 'spousal consortium', parental consortium', and filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. Concerning a spouse, it would include sexual relations with the deceased spouse (Rajesh v. Rajbir Singh 2013 ACJ 1403 (S.C.). The parental consortium is granted to the child upon the premature death of a parent, for loss of 'parental aid, protection, affection, society, discipline, guidance and training. The filial consortium is the right of parents to compensate in the case of the accidental death of a child. An accident leading to the end of a child causes great shock and agony to the parents and family of the deceased. The most incredible

MACMA_776_2015 & MACMA_1138_2015

suffering for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and role in the family unit."

l. By following the principles laid down by the Apex Court in

Pranay Sethi's case and Magma General Insurance Co. Ltd's

cases referred to supra, this Court inclined to award the

compensation as detailed hereunder:-

Towards loss of dependency Rs.18,14,400/- Towards funeral expenses Rs. 16,500/-

                  Towards Loss of Estate             Rs. 16,500/-
                  Spousal consortium                 Rs. 44,000/-
                  Parental consortium                Rs. 1,32,000/-
                  Filial consortium                  Rs. 20,000/-
                                                     -------------------------
                        Total:                       Rs. 20,43,400/-

m. In Laxman @              Laxman Mourya       v.   Divisional      Manager,

Oriental Insurance Company Limited and another 6 the Apex

Court while referring to Nagappa v. Gurudayal Singh (2003

A.C.J. 12 (SC) 274) held as under:

"It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa v. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the Tribunal and for that any competent Court is entitled to award higher compensation to the victim of an accident."

(2011) 10 SCC 756

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n. In Ramla vs National Insurance Co. Ltd.7, the Apex Court held

no restriction to award compensation exceeding the amount

claimed. As such, given the principle laid down by the Apex

Court, the claimants are entitled to an amount of

Rs.20,67,400/- exceeding the claimed amount. However, the

claimants shall pay the requisite court fee over and above the

compensation awarded.

o. Following the principles laid down by the Apex Court in a catena

of judgments, this Court can safely be concluded that the

claimants are entitled to get more than what has been claimed.

Further, the Motor Vehicles Act is a beneficial piece of legislation

where the interest of the claimants is a paramount

consideration. The courts should always endeavour to extend

the benefit to the claimants to a just and reasonable extent.

Accordingly, point No.II is answered.

13. In view of the aforesaid discussion, the appeal preferred by the

respondents in M.A.C.M.No.776 of 2015 is dismissed, whereas

M.A.C.M.A. No.1138 of 2015, is allowed, by enhancing the

CIVIL APPEAL No.11495 OF 2018