Andhra Pradesh High Court - Amravati

Andhra Pradesh State Road, Transport ... vs Kota Venkata Subba Reddy, on 6 August, 2024

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 APHC010826632016
                          IN THE HIGH COURT OF ANDHRA PRADESH
                                        AT AMARAVATI                           [3367]
                                 (Special Original Jurisdiction)

                         TUESDAY ,THE SIXTH DAY OF AUGUST
                          TWO THOUSAND AND TWENTY FOUR

                                       PRESENT

                     THE HONOURABLE SRI JUSTICE V SRINIVAS

     MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 801/2016

Between:

Andhra Pradesh State Road, Transport Corporation and                  ...APPELLANT(S)
Others

                                          AND

Kota Venkata Subba Reddy and Others                               ...RESPONDENT(S)

Counsel for the Appellant(S):

   K VISWANATHAM (SC FOR APSRTC)

Counsel for the Respondent(S):

   CHETLURU SREENIVAS

The Court made the following:

      JUDGMENT:

This appeal is directed against the order of the Chairman,

Motor Vehicle Accident Claims Tribunal-cum-I Additional District

Judge at Kadapa (hereinafter called as 'the Tribunal') in

M.V.O.P.No.156 of 2012 dated 06.04.2015.

2. The appellants are owner/A.P.S.R.T.C. and driver of the Bus

bearing No.AP 11 Z 4360 (hereinafter referred to as "crime bus").

The respondent Nos.1 and 2 herein are parents of one K.Devi

(hereinafter called as 'the deceased'). For the sake of convenience,

the parties hereinafter referred to as they arrayed before the

Tribunal. The case of the claimants, in the petition before the

Tribunal is that:

i). On 24.09.2006 at about 03.30 p.m., when the deceased

proceeding in a car near N.T.R. Nagar, the crime bus driven by the

1st respondent in a rash and negligent manner dashed into the

said car, resulted the deceased sustained severe bleeding injuries.

While undergoing treatment, on the same day, she succumbed to

injuries.

ii). The deceased was aged about 22 years and used to earn

Rs.500/- per day by selling milk and other milk products as she

was maintaining six she buffaloes. Being dependents, they

claiming compensation of Rs.7,00,000/- against the driver and

owner of the crime bus.

3. The respondent No.2 filed written statement denying the

averments in the petition and pleaded that the accident occurred

only due to the negligence on the part of the driver of the car, who

is not having driving license, but not the 1st respondent/driver.

4. The Tribunal settled the following issues for enquiry basing

on the material:

"1.Whether the accident occurred due to rash and negligent driving of the driver of A.P.S.R.T.C. bus bearing No.AP 11Z 4360 resulting the death of the deceased by name K.Devi on 24.09.2006?

2.Whether the petitioners are entitled for compensation, if so, to what amount and from whom? and

3.To what relief?"

5. During enquiry, on behalf of the claimants, PW.1 and PW.2

were examined and Exs.A.1 to A.5 were marked. On behalf of the

respondents, none were examined and no documentary evidence

was adduced.

6. On the material, the Tribunal, having come to the conclusion

that the accident occurred due to the negligent driving of the crime

bus by its driver, held that claimants are entitled for the

compensation of Rs.4,37,000/-, with interest at 7.5% per annum

from the date of petition till the date of realization against the

respondent Nos.1 and 2, for the death of the deceased in the

accident.

7. It is against the said award; the present appeal was preferred

by the appellants/driver and APSRTC. Heard Sri K.Viswanatham,

learned Standing Counsel for the appellants and Sri Ch.Sreenivas,

learned counsel for the respondent Nos.1 and 2/claimants.

8. Sri K.Viswanatham, learned Standing Counsel for the

appellants submits that there is a contributory negligence on the

part of the driver of the car in causing the incident; that the

Tribunal failed to see that the driver of the car is not having valid

driving license to drive the same; that the testimony of P.W.2

cannot be believed as he was not witnessed the accident; that the

Tribunal erroneously has taken the income of the deceased as

Rs.3,000/- per month; that the claimants are not the dependents

on the income of the deceased and thereby, prays to consider the

present appeal.

9. Sri Ch.Sreenivas, learned counsel for the respondent Nos.1

and 2/claimants submits that the Tribunal after considering the

material placed on record, rightly came to the conclusion that the

accident occurred only due to the negligence of the driver of the

crime bus; that the claimants are entitled for enhancement of

compensation even without any cross objections; that under Order

41 Rule 33 of Code of Civil Procedure, this Court can enhance the

compensation as claimed by the claimants without any appeal or

cross objections and thereby prays to enhance the compensation as

claimed by the claimants before the Tribunal.

10. In support of his contentions, learned counsel for the

claimants relied upon Division Bench judgment of this Court in The

National Insurance Company Ltd., v. E.Suseelamma1.

11. Now, the following points that arise for determination in this

appeal:

1.Whether there is any contributory negligence on the part of the driver of the car, in which deceased was travelling, in causing the incident?

2.Whether this Court can grant just compensation without any appeal or cross-objections by the claimants? and

3.To what relief ?

12. POINT No.1:

It is not in dispute about the death of the deceased in the

incident as well the claimants did not prefer any appeal or cross-

objections against the findings recorded by the Tribunal.

13. As per the testimony of P.W.2, who said to be eye witness to

the incident, while he was standing at Chandragiri bypass road i.e.,

near Nellore - Chittor road, the accident occurred, the driver of the

crime bus is negligent as he driven the vehicle at high speed

2023 SCC Online AP 1725

without following the traffic rules and dashed the ambassador car,

thereby, the car was totally crashed, the deceased, who was

travelling in the said car sustained bleeding injuries and the driver

of the car died on the spot. During cross examination, he

categorically admitted that he witnessed the accident from a

distance of one kilometer. Thereby, the testimony of P.W.2 is not

very helpful to the case of the claimants as he is direct witness to

the accident. Besides, on perusal of Ex.A.1 charge sheet, which was

filed after completion of investigation by police, shows that the

incident occurred only due to the negligence of the 1st respondent

driver and held responsible for the same.

14. No contra material was produced by the Appellants to support

their contention that the driver of the car was responsible for the

incident. In fact, the 1st respondent(driver 0f the bus), who is best

witness to speak what was really happened and on whose fault the

accident had occurred, but he did not enter into witness box before

the Tribunal to say that he is not responsible for the incident.

15. Viewing from any angle, it is clear and in vivid terms that 1st

respondent driver of the crime bus is responsible for the incident

and due to his negligence only the incident had occurred. Thereby,

no contributory negligence can be attributed against the driver of

the car. Thus, this point is answered against the appellants.

16. POINT NO.2:

Coming to the just compensation entitled by the claimants is

concerned, as stated supra, no appeal or cross objection is

preferred by the claimants. However, it is the contention of the

claimants that even no appeal preferred by the claimants, this

Court can enhance the compensation.

17. on such plea, as per the observations made by the Division

Bench of this Court in E.Suseelamma case (referred to supra), by

referring plethora of pronouncements of Hon'ble Supreme Court,

this Court can enhance the compensation, if so they are entitled,

without any appeal or cross objections. In the said judgment, it was

categorically held that "We are therefore of the considered view that

for doing justice and to award just compensation, the provisions of

Order 41 rule 33 are to be invoked which are being invoked

accordingly, and we find that there is no legal interdict or a

prohibition under law, rather the mandate of law is to award just

compensation".

18. Thereby, this Court can decide the just compensation entitled

by the claimants even in the absence of any appeal or cross-

objections preferred by the claimants.

19. By taking into consideration of facts and circumstances, even

the appellants claimed income of the deceased as Rs.500/- per day,

in view of the absence of material to fortify the same, the Tribunal

fixed notional monthly income of deceased @ Rs.3,000/- per month.

This Court did not find any fault with the conclusion arrived at by

the Tribunal, while deciding the income of the deceased. Thereby,

the actual income of the deceased is determined at Rs.36,000/- per

annum.

20. As per the decision of the Constitution Bench of the Apex

Court in National Insurance Company Limited v. Pranay Sethi2,

the deductions towards personal and living expenses of the

deceased, held at Paragraph No.39 as follows:

39. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible from Sarla Verma, Reshma Kumari, Rajesh, and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, Sarla Verma lays down: -

(2017) 16 SCC 680

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court (2003) 3 SLR (R) 601, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.

31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

32. Thus, even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."

21. As per the Pranay Sethi case (referred supra), at para 59.4. it

is held " In case the deceased was self-employed or on a fixed

salary, an addition of 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 method of

computation. The established income means the income minus the

tax component". (emphasis supplied)

22. In the present case as per the above said decision, 40% of

actual income has to be added to the income of the deceased

towards future prospects as the deceased is in the age group of 22

years. After adding 40% to the income of the deceased towards

future prospects his income is determined at Rs.50,400/-

(Rs.36,000/- + Rs.14,400/-).

23. In the case on hand, even the deceased was married, she was

residing with her parents as her husband was already married

another lady and having children, thereby the deduction towards

personal and living expenses of the deceased, should be 50% from

the income of the deceased on par with the unmarried woman.

Then the quantum is determined as Rs.25,200/-.

24. Regarding just compensation, in a decision of Hon'ble

Supreme Court between Sandeep Khanuja vs Atul Dande &

Anr3, at Paragraph Nos.11 and 12 held as follows :

"11.........it is now a settled principle, repeatedly stated and restated time and again by this Court, that in awarding compensation the multiplier method is logically sound and legally well established. This method, known as 'principle of multiplier', has been evolved to quantify the loss of income as a result of death or permanent disability suffered in an accident.........

12......... While applying the multiplier method, future prospects on advancement in life and career are taken into consideration. In a proceeding under Section 166 of the Act relating to death of the victim, multiplier method is applied after taking into consideration the loss of income to the family of the deceased that resulted due to the said demise. Thus, the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimant, as the case may be.............. there should be no departure from the multiplier method on the ground that Section 110-B, Motor Vehicles Act, 1939 (corresponding to the present provision of Section 168, Motor Vehicles Act, 1988) envisaged payment of 'just' compensation since the multiplier method is the accepted method for determining and ensuring payment of

(2017) 3 SCC 315

just compensation and is expected to bring uniformity and certainty of the awards made all over the country.".......

25. Coming to the present case is concerned, the appropriate

multiplier applicable to the age of the deceased i.e., 22 years is '18'.

The total loss of dependency is determined at Rs.4,53,600/-

(Rs.50,400/2 = Rs.25,200/- x 18). Apart from that, as per the

Pranay Sethi case (referred to supra) an amount Rs.15,000/-

towards funeral expenses and Rs.15,000/- towards love and

affection are to be awarded. In-total the claimants are entitled

compensation of Rs.4,83,600/-.

26. A brief exposition of the calculation made to arrive at the

compensation is set out infra:

  S.No. Heads                         Calculation

  1       The annual income of the Rs.36,000/- per annum
          deceased.

  2       40% of above(1) to be (Rs.36,000/- + Rs.14,400/-)
          added     as    future
          prospects              Rs.50,400/-


  3       50% to be deducted as Rs.25,200/-.
          personal  expenses of
          deceased.

  4       Compensation arrived at (Rs.25,200/-            x      18)
          on    application    of





           multiplier 18.               Rs.4,53,600/-


  5        Loss of estate               Rs.15,000/-

  6        Funeral expenses             Rs.15,000/-

           Total    compensation Rs.4,83,600/-
           awarded(Rows 4+5+6)

27. Therefore, in view of the forgoing discussion, this Court is of

the considered opinion that the award passed by the Tribunal

warrants interference by enhancing the compensation from

Rs.4,37,000/- to Rs.4,83,600/-. Thus, this point is answered in

favour of claimants.

28. POINT No.3:

In view of the findings on point Nos.1 and 2, the award passed

by the Tribunal warrants interference regarding quantum of

compensation only and with regard to the remaining aspects there

is no need to disturb the order passed by the Tribunal. As such, the

appeal preferred by the appellants is liable for dismissal.

29. In the result, M.A.C.M.A. is dismissed. However, in view of the

above observations, enhancing the compensation from

Rs.4,37,000/- to Rs.4,83,600/- with interest at 7.5% per annum,

with proportionate costs, from the date of petition till the date of

realization against driver and owner of the crime bus. On such

deposit, the 1st petitioner is awarded an amount of Rs.2,00,000/- as

well 2nd petitioner is awarded an amount of Rs.2,83,600/- and they

are entitled to withdraw the same with interest accrued thereon.

The Tribunal shall proceed to pay the amount, in the aforesaid

terms, adjusting the amount, if any, already paid.

30. Interim orders granted earlier if any, stand vacated.

31. Miscellaneous petitions pending if any, stand closed.