Andhra Pradesh High Court - Amravati

Between vs Atul Dande on 17 October, 2024

APHC010018982017

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

     THURSDAY ,THE SEVENTEENTH DAY OF OCTOBER
          TWO THOUSAND AND TWENTY FOUR

                       PRESENT
          THE HONOURABLE SRI JUSTICE V SRINIVAS

     MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL
                    NO: 846/2017

Between:
Apsrtc                                            ...APPELLANT
                               AND

Golla Vijaya Ratnam and Others               ...RESPONDENT(S)

Counsel for the Appellant:
  VINOD KUMAR TARLADA (SC FOR APSRTC)

Counsel for the Respondent(S):
  N SIVA REDDY

The Court made the following:

JUDGMENT:

This appeal is directed against the order of the Chairman,

Motor Vehicle Accident Claims Tribunal-cum-X Additional

District Judge, East Godavari at Rajahmundry (hereinafter

called as 'the Tribunal') in M.V.O.P.No.488 of 2015 dated

22.11.2016.

2. The appellant is the owner/APSRTC of the Bus bearing

No.AP 11Z 5448 (hereinafter referred as "crime bus"). The

respondent Nos.1 to 7 herein are the husband and children of

one Golla Ratna Kumari (hereinafter called as 'the deceased').

The respondent No.8 is the driver of the said crime bus.

3. For the sake of convenience, the parties hereinafter

referred to as they arrayed before the tribunal.

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

Tribunal is that:

i). On 12.06.2015 at about 11.45 a.m., while the

deceased was coming in an auto bearing No.AP 5 TX 8-

17 from Razole to Sakinetipalli and when they reached

near Sivakodu Petrol Bunk at Muggu Venkatarao's

house, the crime bus driven by its driver in a rash and

negligent manner at high speed, lost control over the

same and dashed the said auto in opposite direction,

resulted the deceased died on the spot.

ii). The deceased was earning Rs.300/- per day by

doing coolie works and contributed the same for the

family. Being legal representatives, they claimed

compensation of Rs.10,00,000/- against the driver and

owner of the crime bus.

5. The respondent Nos.1 and 2/driver and owner of the

crime bus filed written statements 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 auto, but not 1st

respondent; that the compensation claimed by the claimants is

excessive and thereby, prayed to dismiss the petition.

6. The Tribunal settled the following issues for enquiry

based on the material:

"1.Whether the deceased Golla Ratna Kumari died in motor accident, due to rash or negligent driving and by use of the vehicle i.e., A.P.S.R.T.C. Bus bearing No.AP 11 Z 5448 by its driver/1st respondent?

2.Whether there was any rash and negligence on the part of the driver of Auto bearing Reg.No.AP 5 TX 8017?

3.Whether the petition is bad for non-joinder of proper and necessary parties i.e., driver, owner and insurer of the auto bearing No.AP 5 TX 8017?

4.Whether the petitioners are entitled for compensation, if so, to what extent and against whom? and

5.To what relief?"

7. During enquiry, on behalf of the claimants, PWs.1 and 2

were examined, Exs.A.1 to A.6 were marked and during cross

examination of R.W.1, Ex.X.1 was exhibited. On behalf of the

2nd respondent/appellant, the 1st respondent/driver was

examined as R.W.1 and no documents were marked.

8. On the material, the Tribunal, having concluded that the

accident occurred due to the negligent driving of the crime bus

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

compensation of Rs.5,93,700/-, with interest at 9% 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.

9. It is against the said order; this appeal was preferred by

the insurer of the crime lorry.

10. Heard Sri Vinod Kumar Tarlada, learned counsel for the

appellant/APSRTC and Sri K.Srinivasarao, learned counsel

representing Sri N.Siva Reddy, learned counsel for the

respondent Nos.1 to 7/claimants.

11. Sri Vinod Kumar Tarlada, learned counsel for the

appellant/APSRTC submits that the accident occurred due to

rash and negligent driving of the driver of the auto, but not 1st

respondent; that the Tribunal erred in awarding compensation

of Rs.5,97,700/- to the claimants; that the Tribunal failed to

appreciate the material placed on record in proper perspective

and erroneously awarded compensation to the claimants and

thereby, prays to consider the present appeal.

12. Sri K.Srinivasarao, learned counsel representing Sri

N.Siva Reddy, learned counsel for the respondent Nos.1 to

7/claimants submits that the accident occurred only due to the

rash and negligent driving of the 1st respondent driver of the

crime bus only; 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. In support of

the above contentions, he relied upon Division Bench

judgment of this Court in The National Insurance

Company Ltd., v. E.Suseelamma1.

13. Now, the following points arise for determination:

1. Whether there is any contributory negligence on the part of the driver of the auto in causing the incident?

2. Whether the compensation awarded to the claimants is just compensation? and

3. To what relief ?

14. POINT NO.1:

On this point, the Tribunal held that the accident

occurred only due to the rash and negligent driving of the crime

bus by its driver.

15. It is not in dispute about involvement of crime bus as well

auto bearing No.AP 5 TX 017, in which the deceased was

travelling by the time of incident, as well death of the deceased

in the incident. To prove the rash and negligence on the part of

the 1st respondent, the claimants got examined P.W.2, who is

said to be injured eyewitness to the incident. She categorically

1 2023 SCC Online AP 1725

testified that the incident occurred due to rash and negligent

driving of the driver of the crime bus only. Nothing was elicited

during cross examination to disbelieve her testimony.

16. The testimony of P.W.2 coupled with Exs.A.1 and A.5

F.I.R. and charge sheet respectively, categorically shows that

the accident occurred due to rash and negligent driving of the

1st respondent only. Except the bare testimony of R.W.1, who is

driver of the crime bus, nothing on record to disbelieve the

testimony of P.W.2 as well Exs.A.1 and A.5. Furthermore, there

is an admission made by R.W.1 during cross examination that

he does not know the contents of his chief examination and that

at the time of taking his signature in the chief affidavit, he was

told that if he does not sign in it, the matter will be reported to

Regional Manager of APSRTC.

17. Having regard to the above discussion, it is in vivid terms

that the accident occurred only due to the rash and negligent

driving of the crime bus by the 1st respondent and the Tribunal

after appreciating the material rightly come to such conclusion.

This point is answered accordingly.

18. POINT NO.2:

It is the contention of the learned counsel for the

appellant that the Tribunal erred in calculating the

compensation entitled by the claimants.

19. 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 if there is no appeal

preferred by the claimants, this Court can enhance the

compensation.

20. 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".

21. 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.

22. It is not in dispute that by the time of incident the

deceased was aged about 60 years. It is the contention of the

claimants that the deceased was attending coolie works and

earned Rs.300/- per day. In the absence of any proof

regarding the income of the deceased, the Tribunal rightly

taken the same @ Rs.3,000/- per month. Thereby, the actual

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

annum.

23. 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 discernible 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:-

"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 Chandra4, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this (2003) 3 SLR (R) 601 Court, 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."

24. As per the Pranay Sethi case (referred supra), in case

the deceased was self-employed, an addition of 10% should

2 2017 (6) ALT 60 (SC)

be made, if the age of the deceased was between 50 to 60.....

(emphasis supplied)

25. In the present case, as per the above-mentioned

decision, 10% of actual income has to be added to the income

of the deceased towards future prospects as the deceased is

aged about 60 years by the date of incident, which is not in

dispute. After adding 10% to the income of the deceased

towards future prospects her income is determined at

Rs.39,600/-(Rs.36,000/- + Rs.3,600/-).

26. In the case on hand, there are seven claimants

depending on the deceased, thereby, the deduction towards

personal and living expenses of the deceased should be 1/5th

from the income of the deceased. Then the quantum is

determined as Rs.31,680/-.

27. 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 :

3 2017 (3) SCC 315

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 capitalizing 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 just compensation and is expected to bring uniformity and certainty of the awards made all over the country."....... (emphasis supplied)

28. The appropriate multiplier applicable to the age of the

deceased i.e., 60 years is 9. The total loss of dependency is

determined at Rs.2,85,120/- (Rs.31,680/- x 9).

29. CONVENTIONAL HEADS:-

On the point of the conventional heads, as per the

judgment in Pranay Sethi (supra), Magma National

Insurance Company Limited v. Nanu Ram @ Chuhru Ram

and Ors.4, Smt. Anjali and Others v. Lokendra Rathod

and Others5, United India Insurance Co. Ltd v. Satinder

Kaur @ Satwinder Kaur and ors.6 and Rojalini Nayak

4 (2018) 18 SCC 130 5(2022) SCC OnLine SC 1683 6 (2022) SCC OnLine SC 1683

17 (2021) 11 SCC 780

and others v. Ajit Sahoo and others7, this Court can award

the enhanced amounts under the conventional heads of loss

of estate, loss of consortium and funeral expenses. The

claimants are also entitled for an amount of Rs.48,400/- to

each of the claimants, being Rs.3,38,800/- for loss of

consortium, towards funeral expenses Rs.18,150/- and

towards loss of estate Rs.18,150/-, respectively as was

awarded in Rojalini Nayak case (referred to supra).

30. 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 Rs.36,000/- per annum
       the deceased.

2      10% of above(1) to be (Rs.36,000/- + Rs.3,600/-)
       added     as    future
       prospects              Rs.39,600/-


3      1/5th to be deducted as Rs.31,680/-.
       personal expenses of





       deceased.



4      Compensation   arrived (Rs.31,680/-               x    9)
       at on application of
       multiplier 9.          Rs.2,85,120/-

5      Spousal and        Parental Rs.3,38,800/-
       consortium
                                     (Rs.48,400/- X 7)
       (husband         and    six
       children)

6      Loss of estate                Rs.18,150/-

7      Funeral expenses              Rs.18,150/-

       Total   compensation Rs.6,60,220/-
       awarded(Rows
       4+5+6+7)

31. 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.5,93,700/- to Rs.6,60,220/-. It is

needless to say that the compensation claimed as well

awarded by the Tribunal on the remaining heads are not

entitled by the claimants. Thus, this appoint is answered

accordingly.

32. POINT No.3:

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

passed by the Tribunal warrants interference regarding

quantum of compensation only. As such, the appeal preferred

by the appellant/insurer is liable for dismissal.

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

of the above observations, enhancing the compensation from

Rs.5,93,700/- to Rs.6,60,220/- with interest at 9% per

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

the date of realization against driver and owner/APSRTC of

the crime bus. The appellant/respondent No.2/APSRTC shall

deposit the entire compensation amount within two months

from the date of this judgment before the Tribunal. On such

deposit, the claimant Nos.1/husband is entitled to receive the

enhanced compensation, permitted him to withdraw the same

with interest accrued thereon and the apportionment made

by the Tribunal towards entitlement of the claimants for