S Chittemma vs Apsrtc Co.Ltd
2023 Latest Caselaw 221 AP

BVLNC,J                                         MACMA 623 of 2019 & 334 of 2021
Page 1 of 18                                        Dt: 19.01.2023




        HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

           M.A.C.M.A.No.623 OF 2019 & 334 OF 2021

COMMON JUDGMENT:


           The appeal in MACMA No.623/2019 is preferred by the

Appellant/APSRTC, challenging the award dated 28.03.2019 passed in

M.V.O.P.No.527/2015 on the file of Motor Accidents Claims Tribunal-

cum-I Addl.District Judge, Kurnool, wherein the Tribunal while partly

allowing the petition, awarded compensation of Rs.7,45,000/- with

interest @ 9% p.a. from the date of petition, till the date of realisation

to the petitioners/claimants, for the death of S.Anand, in a motor

vehicle accident.


2.      The    appeal   in   MACMA     334/2021     is   preferred    by   the

Appellants/claimants, challenging the award dated 28.03.2019 passed

in M.V.O.P.No.527/2015 on the file of Motor Accidents Claims

Tribunal-cum-I Addl.District Judge, Kurnool, wherein the Tribunal

while    partly   allowing   the   petition,   awarded    compensation       of

Rs.7,45,000/- with interest @ 9% p.a. from the date of petition, till the

date of realisation      to the petitioners/claimants, for the death of

S.Anand, in a motor vehicle accident.
 BVLNC,J                                       MACMA 623 of 2019 & 334 of 2021
Page 2 of 18                                      Dt: 19.01.2023




3.      For the sake of convenience, the parties are arrayed as parties in

the lower Court.


4.      As seen from the record, originally the petitioners filed an

application U/s.166 of Motor Vehicles Act, 1988 (for brevity "the Act")

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

S.Anand, who is son of the 1st petitioner, husband of the 2nd petitioner

and father of the petitioners No.3 and 4 in a motor vehicle accident

that occurred on 28.02.2014.


5.      The facts show that on 27.02.2014 night the deceased as TV

operator-cum-Attendant in APSRTC Bus No.AP 29 Z 2925 along with

second respondent and another driver left Kurnool for Chennai. The

2nd respondent drove the bus in a rash and negligent manner. On

28.02.2014 at about 06.00 a.m. when the bus was proceeding near

signal at Senghalam temple bypass within the limits of E5 Sholavaram

Police Station of Tamilnadu State, while taking turn at the diversion,

the 2nd respondent lost control over the vehicle and dashed against the

side wall of the bridge and the vehicle fell down, as a result of which,

the deceased crushed inside the bus and died on the spot. The

deceased was aged 36 years and working as T.V. operator-cum-

attendant in the bus on contract basis under contractor in APSRTC BVLNC,J MACMA 623 of 2019 & 334 of 2021 Page 3 of 18 Dt: 19.01.2023

and getting Rs.5,400/- per month. Due to sudden demise of

deceased, the petitioners lost their sole bread winner.

6. Before, the Tribunal, the 1st respondent/APSRTC filed counter

resisting, while traversing the material averments with regard to proof

of age, avocation, monthly earnings of the deceased, manner of

accident, rash and negligence on the part of the driver of the offending

vehicle, and liability to pay compensation, contended that there was no

negligence on the part of 2nd respondent, and the accident was

occurred, as the deceased was sleeping on back seat of driver, who fell

down on road while the bus was taking turn and died. The 2nd

respondent adopted the counter filed by the 1st respondent.

7. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

1. Whether the accident took place as stated in the petition?

2. Whether the petitioners are entitled for compensation? If so, to what amount and from which of the respondents?

3. To what relief?

8. To substantiate their claim, the petitioners examined P.W-1 and

got marked Exs.A-1 to A-7. No oral or documentary evidence was

adduced on behalf of the 1st respondent.

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9. The Tribunal, taking into consideration the evidence of P.W-1,

coupled with Exs.A-1 to A-7, held that the accident took place due to

the rash and negligent driving of the lorry driver, and further, taking

into consideration the evidence of P.W-1, corroborated by Exs.A-1 to

A-7, awarded a compensation of Rs.7,45,000/- with interest @ 9% p.a.

from the date of petition, till the date of deposit against the

respondents 1 and 2.

10. The contention of the appellant/APSRTC in MACMA 623/2019 is

that the Tribunal erred in holding that the accident was occurred due

to rash and negligence on the part of driver of APSRTC bus, though the

accident was occurred due to the negligence of the deceased. The

APSRTC further contended that the Tribunal erred in fixing the income

of the deceased at Rs.5,000/- per month, and also erred in deducting

¼ amount only towards personal expenses of the deceased, instead of

1/3, and that the Tribunal erred in awarding interest at 9% p.a.,

instead of 7.5% p.a.

11. The contention of the appellants/claimants in MACMA

334/2021 is that the Tribunal erred in fixing the monthly income of

the deceased at Rs.5,000/- per month, instead of Rs.6,000/- per

month, and the Tribunal ought to have awarded future prospects

basing on his established income, and the Tribunal also erred in not BVLNC,J MACMA 623 of 2019 & 334 of 2021 Page 5 of 18 Dt: 19.01.2023

awarding consortium as per principles of law, and therefore, the

Tribunal did not award just compensation, as claimed by the

appellants/claimants.

12. In the light of above rival contentions, the points that would

arise for consideration in these appeals are as under:

1. Whether the accident was not occurred due to rash and negligence of the driver of APSRTC Bus bearing No.AP 29 Z 2925?

2. Whether the amount awarded by the Tribunal below is not just compensation?

3. To what relief?

13. POINT No.1:

The case of the claimants is that on 27.02.2014 the deceased,

who was working as T.V. Operator-cum-Attendant in APSRTC Bus

bearing No.AP 29Z 2925, and the 2nd respondent, who is the driver

along with another driver, attended duty to go to Chennai, and while

so, on 28.02.2014 at about 06.00 a.m., when the bus was proceeding

near signal at Senghalam temple bypass within the limits of E5

Sholavaram Police Station of Tamilnadu State, while taking turn at the

diversion point, the driver drove the bus in a rash and negligent BVLNC,J MACMA 623 of 2019 & 334 of 2021 Page 6 of 18 Dt: 19.01.2023

manner, and as a result, he lost control over the vehicle, and the bus

dashed the side wall of a bridge, and turtle down, as a result of which,

the deceased, who is inside the bus was crushed to death, and

therefore, the deceased died due to rash and negligent driver of the

APSRTC bus i.e., 2nd respondent in the claim petition.

14. The contention of the APSRTC is that there was no negligence on

the part of driver of the bus, and the deceased, who was sleeping on

the back seat of the driver, fell down on to the road, while the bus was

taking turn, and as a result, he died.

15. The claimants to prove their case, have examined the second

claimant as P.W-1. The claimants also filed Ex.A-1 copy of FIR

registered by the police and Ex.A-2 is translated version of Ex.A-1.

The claimants also filed Ex.A-3 copy of inquest report along with

Ex.A-4 translated version. The claimants also filed copy of post

mortem report under Ex.A-5 along with Ex.A-6 translated version, and

Ex.A-7 is copy of rough sketch. P.W-1 in her chief-examination

reiterated the case of the claimants about the way in which the

accident was occurred. The claimants filed the above documents

corroborating their version about the accident. The APSRTC did not

elicit anything to prove that the accident was not occurred due to rash

or negligence of the driver of the APSRTC bus.

 BVLNC,J                                      MACMA 623 of 2019 & 334 of 2021
Page 7 of 18                                     Dt: 19.01.2023

16. The police registered a case against the driver of the APSRTC

bus bearing No.AP 29Z 2925 for the offence punishable U/s.279,

304-A of Indian Penal Code, which is not denied by the APSRTC. The

driver of the APSRTC bus was not examined as a witness by the

APSRTC to speak about the way in which the accident was occurred to

establish that the accident was not occurred due to rash or negligence

of the driver of the APSRTC bus. It is not the case of the APSRTC that

the accident was not occurred or that the deceased was not died in the

accident. In that view of the matter, as the contents of the above

documents filed by the claimants are not challenged by the APSRTC

and failed to examine the driver to depose about the way, in which the

accident was occurred, challenging the contents of the above

documents, the contention of the APSRTC that the accident was not

occurred due to rash or negligence of the driver of the APSRTC bus

does not hold any merit. Accordingly, this point is answered against

the appellant/APSRTC in MACMA 623/2019.

17. POINT No.2:

The contention of the claimants is that the deceased was

working as T.V.Operator-cum-Attendant, and he was travelling in the

bus at the time of accident, and that he was aged 36 years, and he was

receiving an amount of Rs.5,400/- per month towards salary. The BVLNC,J MACMA 623 of 2019 & 334 of 2021 Page 8 of 18 Dt: 19.01.2023

APSRTC denied the age and income of the deceased. In Ex.A-2 the age

of the deceased is mentioned as 36 years, and in Ex.A-3 inquest

report, it was mentioned as 40 years, as rightly pointed out by the

Tribunal. The claimants did not produce any other document to prove

the age of the deceased. The claimants did not produce any document

to show that the deceased was receiving a sum of Rs.5,400/- per

month towards salary. The APSRTC did not deny the fact that the

deceased was working as a T.V.Operator-cum-Attendant in APSRTC

bus. Therefore, it can be held that the deceased was working as a

T.V.Operator-cum-Attendant in APSRTC at the time of accident. It is

the case of the APSRTC that the contractor was paying salary to the

deceased, but not APSRTC.

18. The APSRTC did not adduce any contra evidence to show that

the contractor was not paying Rs.5,400/- per month to the deceased.

The Tribunal considered his income as Rs.5,000/- per month on the

ground that he was working as a T.V.Operator-cum-Attendant in the

bus of APSRTC at the time of accident. It did not accept the

contention of the claimants on the ground that they did not produce

any document to show that deceased was getting Rs.5,400/- per

month as salary at the time of accident. In the light of above facts and

circumstances, this Court is of the opinion that the amount of BVLNC,J MACMA 623 of 2019 & 334 of 2021 Page 9 of 18 Dt: 19.01.2023

Rs.5,000/- fixed by the Tribunal as an established income of the

deceased, towards his monthly salary as a T.V.Operator-cum-

Attendant working in APSRTC bus at the time of accident in the year

2014, requires no modification.

19. The Tribunal considered the age of the deceased in the age group

of 36 to 40 years basing on Ex.A-2 FIR and Ex.A-3 inquest report, as

no documentary evidence was produced by the claimants. Therefore,

there are no grounds to interfere with the finding of the Tribunal

regarding age of the deceased.

20. The Tribunal fixed the monthly income of the deceased at

Rs.5,000/- per month. His annual income would be Rs.5,000 x 12 =

Rs.60,000/-. The Tribunal rightly deducted ¼ of income of the

deceased towards his personal expenses, as there are four dependants

at the time of accident, which would be Rs.60,000 - 15,000 =

Rs.45,000/-. The Tribunal has applied multiplier '15' as per judgment

of the Hon'ble Apex Court in the case of Sarla Verma and another Vs.

Delhi Road Transport Corporation and others1, considering the age

of the deceased in the age group of 36 to 40 years. Therefore, the

2009 ACJ 1298 BVLNC,J MACMA 623 of 2019 & 334 of 2021 Page 10 of 18 Dt: 19.01.2023

Tribunal arrived the loss of dependency as Rs.45,000 x 15 =

Rs.6,75,000/-.

21. The Tribunal has awarded Rs.15,000/- towards loss of estate,

Rs.15,000/- towards funeral expenses, and Rs.40,000/- towards loss

of consortium to the 1st petitioner. Here, it is pertinent to note down

that the 1st petitioner is the mother of the deceased, 2nd petitioner is

the wife of the deceased, and petitioners No.3 and 4 are the minor

children of the deceased. It appears that the Tribunal has awarded

compensation towards loss of consortium to the 1st petitioner, who is

mother of the deceased mistakenly, instead of 2nd petitioner, who is

wife of the deceased, by applying the principles laid down by the

Hon'ble Apex Court in the case of National Insurance Company

Limited Vs. Pranay Sethi2.

22. The Hon'ble Apex Court in the case of Magma General

Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram and

others3, held in para 8.7 as follows:

(2017) 16 SCC 680

2018 ACJ 2782 BVLNC,J MACMA 623 of 2019 & 334 of 2021 Page 11 of 18 Dt: 19.01.2023

"A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is 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. With respect to a spouse, it would include sexual relation with the deceased spouse.

3 Spousal consortium is generally defined as rights pertaining to the relationship of a husband−wife which allows compensation to the surviving spouse for loss of company, society, co− operation, affection, and aid of the other in every conjugal relation. 4 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. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and 3 Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54 4 BLACK'S LAW DICTIONARY (5 the d. 1979) family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

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Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world−over have recognized that the value of a childs consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.

The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.

Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.

A few High Courts have awarded compensation on this count5. However, there was no clarity with 5 Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors 2017 (4) RLW 3368 (Raj);

Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & 6 Ors. respect to the principles on which compensation could be awarded on loss of Filial Consortium.

 BVLNC,J                                          MACMA 623 of 2019 & 334 of 2021
Page 13 of 18                                         Dt: 19.01.2023

The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under Loss of Consortium as laid down in Pranay Sethi (supra). In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs.40,000 each for loss of Filial Consortium."

23. As per the above judgment of the Hon'ble Apex Court, the

petitioners No.3 and 4 are also entitled to parental consortium @

Rs.40,000/- each, as they are minors at the time of accident. The

1st petitioner, who is mother of the deceased, is not entitled to filial

consortium, since the deceased was a major, and married person at

the time of accident. Therefore, the petitioners No.3 and 4 are entitled

to an amount of Rs.40,000/- each towards parental consortium. The

2nd petitioner being wife of the deceased is entitled to Rs.40,000/-

towards consortium, instead of 1st petitioner, who is mother of the

deceased, and the amount entitled by the claimants under the heads

of funeral expenses, loss of estate, and loss of consortium would be

Rs.15,000 + 15,000 + 40,000 + 40,000 + 40,000 = Rs.1,50,000/-.

24. The Tribunal did not award any amount to the claimants

towards loss of future prospects, though the Tribunal fixed a sum of

Rs.5,000/- per month towards established income of the deceased as

T.V.Operator-cum-Attendant working in APSRTC bus. The Hon'ble BVLNC,J MACMA 623 of 2019 & 334 of 2021 Page 14 of 18 Dt: 19.01.2023

Apex Court in the case of National Insurance Company Limited Vs.

Pranay Sethi held in para 59 as follows:

"Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years, an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable."

25. In that view of the matter, the claimants are entitled to amount

towards loss of future prospects @ 40%, since the deceased is below

the age of 40 years at the time of accident. The amount of loss of

dependency arrived by the Tribunal is Rs.6,75,000/-. The loss of

future prospects @ 40% on Rs.6,75,000/- would be arrived at

Rs.6,75,000 x 40/100 = Rs.2,70,000/-.

26. Thus, the difference amount of compensation entitled by the

claimants would be (Rs.80,000 + 2,70,000) = Rs.3,50,000/-, in

addition to Rs.7,45,000/-, compensation awarded by the Tribunal.

Therefore, the total amount entitled by the claimants is Rs.3,50,000 +

7,45,000 = Rs.10,95,000/- (Rupees Ten Lakhs and Ninety Five

Thousand only) towards just compensation, for the death of S.Anand.

 BVLNC,J                                               MACMA 623 of 2019 & 334 of 2021
Page 15 of 18                                              Dt: 19.01.2023

27. The other contention of the appellant/APSRTC is that the

Tribunal granted interest at 9% p.a., and therefore, it is excessive. The

Tribunal awarded interest at 9% p.a. from the date of petition, till the

date of deposit. The accident occurred in the year 2014, and the

claimants filed the petition in the year 2015, and the

Appellant/APSRTC opposing the claim made by the claimants without

any valid and justifiable grounds and also filed appeal, without

admitting for just, fair and reasonable compensation, has been

dragging the matter for the last 7 years. Hon'ble Apex Court in the

case of Jakir Hussein Vs. Sabir4 which referred another judgment of

the Hon'ble Apex Court in Municipal Corporation of Delhi Vs.

Association of Victims of Uphaar Tragedy5 granted interest

@ 9% p.a.

28. In that view of the matter, and also in view of the above

judgments of the Hon'ble Apex Court, this Court do not find any

ground to interfere with the rate of interest awarded by the Tribunal at

9% p.a. from the date of petition, till the date of deposit of

compensation amount. Accordingly, this point is answered.

    (2015) 7 SCC 2154

    (2011) 14 SC 481
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29.    POINT No.3: To what relief?

In the light of the findings on points No.1 and 2, this Court is of

the considered opinion that it is a fit case to modify the order passed

by the Tribunal, by allowing partly the appeal filed by the claimants.

30. In the result, the appeal in MACMA 334/2021 is partly allowed,

holding that the appellants/claimants are entitled to a compensation

of Rs.10,95,000/- (Rupees Ten Lakhs and Ninety Five Thousand only)

with interest @ 9% p.a. from the date petition till the date of deposit,

instead of Rs.7,45,000/- (Rupees Seven Lakhs and Forty Five

Thousand only). The respondents 1 and 2 are jointly and severally

liable to pay the compensation amount along with accrued interest

thereon. Consequently, the appeal in MACMA 623/2019 is dismissed.

There shall be no order as to costs.

31. The 1st respondent/APSRTC is directed to the deposit the

compensation amount of Rs.10,95,000/- (Rupees Ten Lakhs and

Ninety Five Thousand only) with accrued interest thereon, within one

month from the date of judgment. In the event of

1st respondent/APSRTC already deposited some amount, the said

amount has to be excluded, and the balance amount shall be

deposited within one month from the date of judgment.

 BVLNC,J                                          MACMA 623 of 2019 & 334 of 2021
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32. On such deposit, the compensation amount is apportioned

among the claimants as follows:

a) The 1st petitioner being the mother of deceased is entitled to Rs.2,00,000/-, and she is permitted to withdraw the said Rs.2,00,000/- along with accrued interest thereon.

b) The 2nd petitioner being the wife of the deceased is entitled to Rs.4,00,000/-, and she is permitted to withdraw the said Rs.4,00,000/- along with accrued interest thereon.

c) The 3rd petitioner, being son of the deceased is entitled to Rs.2,47,500/-, and he is permitted to withdraw the said Rs.2,47,500/- along with accrued interest thereon.

d) The 4th petitioner, being the minor son of deceased is entitled to Rs.2,47,500/-, and the same shall be deposited in a Nationalised Bank, till he attains majority, and after attaining majority, the 4th petitioner is permitted to withdraw Rs.2,47,500/- along with accrued interest thereon.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

                                        _________________________________
                                        B.V.L.N.CHAKRAVARTHI, J
19.01.2023

psk
 BVLNC,J                             MACMA 623 of 2019 & 334 of 2021
Page 18 of 18                            Dt: 19.01.2023




       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




           M.A.C.M.A.No.623 OF 2019 & 334 OF 2021




                     19th January, 2023

psk