Telangana High Court
The Andhra Pradesh State Road Transport ... vs Shyam Prasad Nagalla And 4 Others on 7 June, 2024
Author: N. Tukaramji
Bench: P.Sam Koshy, N.Tukaramji
HONOURABLE SRI JUSTICE P. SAM KOSHY
AND
HONOURABLE SRI JUSTICE N. TUKARAMJI
M.A.C.M.A.No.1248 OF 2015
JUDGMENT:
(per Hon'ble Sri Justice N. Tukaramji)
This appeal has been preferred by the respondent/APSRTC
questioning the liability and the quantum of compensation granted in
the decree and award dated 27-12-2014, in MVOP No. 416 of 2012
passed by the XXVII Additional chief judge-cum- Chairman, Motor
Vehicle Accident Claims Tribunal, City Civil Courts, Secunderabad.
2. Heard Mr. Sudarshan Reddy, learned senior counsel appearing
for the standing counsel for the appellant/APSRTC and Mr. A Sudhakar
Rao learned counsel appearing for the respondents/Claim petitioners.
3. For the sake of facility, the parties herein after referred to with
their rank before theTribunal.
4. The relevant facts in brief are that, on 13.06.2009, while
Mrs.Lakhmi Nagalla/deceased along with her daughter was travelling in
a Honda city car bearing registration number AP 37 AL 7227 (for short
'the car') near the circle, leading to Prattipadu, a bus of the
respondent/APSRTC bearing registration number AP 11 Z 860 (for
short the bus) came in rash and negligent manner and at high speed
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abruptly turned the bus without any signal or indicator. In the meantime,
the car, which was proceeding straight on highway rammed into the
bus, which resulted into her instantaneous death and grievous injuries
to her daughter. The police registered a crime and charge sheeted the
driver of the bus. Thereupon, the petitioners i.e. husband, daughter and
son filed claim pleading that the deceased was aged 43 years,
permanent resident of USA and as software engineer and through real
estate was earning $ 11,600 per annum and used to spend all her
earnings on family. Thus for loss of dependency sought compensation
of Rs.9 Crores. The Tribunal considering the materials placed on record
awarded Rs.8,05,72,476/- with interest at 7.5% per annum from the
date of petition till realization against the respondent/APSRTC.
5(a) In appeal, learned senior counsel appearing on behalf of the
appellant/respondent/APSRTC (hereinafter, 'the respondent') would
submit that the Tribunal gravely erred in concluding the rash and
negligent driving of the driver of the bus without proper appreciation of
facts and circumstances on record. It is evident that the car struck the
bus at left rear foot board, while taking turn at Prattipadu Junction. By
common knowledge, it can be construed that a vehicle of the size of a
bus cannot move at high speed while taking turn. Indeed, the car
striking the bus at the rear board is indicating that the bus had almost
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crossed the road, but the car came in uncontrollable speed and struck
the bus and this situation is explicating the negligent driving of the car,
rather the bus.
5(b) Further contended that the presence of eye witness/PW4 is not
reflected in the Police record, indicating the chance of planting his
presence. Nonetheless, in criminal the case the driver of the bus was
acquitted and the judgment in categorical terms recorded that there was
no negligence of the driver of the bus in the accident. In addition the
driver and conductor of the bus as RWs.1 and 2 deposed that, while the
bus negotiating turn, they have taken all possible precautions. The
tribunal by considering this material should have held that there was no
negligent driving of the bus and exonerated the respondent.
5(c) In addition, submitted that, all things considered, at the best, the
Tribunal should have considered contributory negligence at minimum
extent on the part of the bus and assessed the compensation by
reducing the multiplier as per the settled propositions in the cases of
foreign employed Indians. Thus, prayed for interference and to
exonerate the liability of the respondent.
6. In support to the pleadings, learned senior counsel, cited the
authorities (a) United India insurance company Ltd and others v.
Patricia Jean Mahajan 2002 6 SCC 281 and pleaded that Honourable
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Supreme Court has clarified in the authority that the exchange rate of
dollar against rupee is relevant only for compensation of the amount of
loss of dependency and has to scale down the multiplier by considering
the economic situation of both the nations. (b) Oriental insurance
company Limited v. Deo Patodi and others, 2009 13 SCC 123 to point
out that, the deceased though got employment in USA, held that
considering the cost/standard of living of the western countries cannot
be followed in assessment of income and in case, the victim was
earning salary in US dollars, a lower multiplier has to be applied. (c) In
Chenderi Devi and another v. Jaspal Singh and others 2015 11 SCC
703 pleaded that, the Hon'ble Supreme Court, while considering a case
of deceased Indian cook who was working in a restaurant in Germany,
instead of salary in Euros, by estimating how much a cook of similar
nature would have earned in India in the relevant year, fixed monthly
income of the deceased. Hence, prayed for, notionally fixing the income
in Indian terms to assess the compensation.
7. The counsel for the claim petitioners refuted the contentions
raised by the respondent/APSRTC and pleaded that the evidence of the
injured witness/PW1 and the eyewitness/PW-2, coupled with the facts
elicited in the cross examination of the driver and conductor of the
bus/RWs. 1 and 2 are suitably proving the negligent driving of the bus
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in the accident. Further the judgment of criminal Court is not binding on
the tribunal and the fact of negligence and the compensation are to be
independently discerned by the materials brought on to record. By
these requirements, the tribunal had properly reasoned the evidence in
determining the rash and negligent driving of the bus and awarded the
compensation. Thus, no merit in the appeal.
8. We have considered the submissions made by the learned
counsel and perused the materials on record.
9. The accident, involvement of the vehicles and death of the
deceased are not in dispute. Likewise, the manner of occurrence, the
fact that while the bus was taking turn towards Prattipadu from the
Highway, the car crashed into the bus near its rear footboard are in
agreement.
10. At the outset, as rightly pointed out by the
respondents/petitioners that the finding of the criminal Court is not
binding on the tribunal, essentially for the reason that the prosecution
would be for the negligent act of the driver in causing death or injuries,
beyond reasonable doubt. Whereas, the tribunal has to consider
negligent driving of the vehicle in causing accident by reason of
preponderance of probabilities. Thus the plea of the appellant to accept
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and conclude the rash and negligent driving, resting on the
observations of the criminal Court is unacceptable.
11. By the record, it is evident that the accident occurred on the
National highway while the bus from its assigned lane on highway,
while crossing the roadway of opposite vehicles on the highway to
reach the road of Prattipadu, on which the car was proceeding the
accident occurred.
12. In this position, the car, which was running on its way on national
Highway i.e., the roadway of the opposite lane to the bus, shall have
right of way. Therefore, the driver of the bus is endowed with
responsibility to take every care and caution while crossing the
specified road way of the opposite vehicles, in taking turn, more
particularly on the national Highway. It is common knowledge that the
national highways are designed for conveyance of vehicles at certain
speed. As such, only on confirmation that there are no vehicles on the
road way of the opposite lane of the Highways, the driver of the bus
should have crossed the road obliging the vehicles right of way on that
road.
13. However, the RWs.1 and 2 had categorically stated that, while
taking turn the conductor of the bus stood on the front foot board and
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instructed the driver. Nonetheless, in the cross examination admitted
that, they did not even observe the car. It is also admitted that the place
of occurrence is with heavy traffic.
14. In this admitted position, when the bus has to horizontally cross
the road blocking the roadway of the national Highway against the right
of way of the vehicles plying on that lane, the level of care, caution and
responsibility multiplies on the driver of the bus. But the statement that
they did not even observe the car, itself is explaining the Care taken by
the driver of the bus, while crossing the National Highway.
15. These facts are amply establishing that the driver of the bus
failed to take the peremptory care expected from a dutiful driver under
the similar circumstances. As the conduct of the driver of the bus lacked
reasonable care inexercising the legal duty owed on him to foresee and
avert the harm, and in spite of the burden of necessary precautions to
eliminate or reduce the risk of harm, as he had acted in breach of his
duty of care towards the vehicles plying on their assigned roadway,
particularly against the car, it shall be held that, only for the negligent
driving of the bus, the accident occurred. As such, the liability of the
respondent/APSRTC to make good loss to the petitioners stands
established.
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16. Viewed from another angle, the appellant has not proposed any
act of rashness or negligence on the part of the deceased. Indisputably
the deceased was only the occupant of the car. Even if a fraction of
rashness or negligence of the driver of the car is taken into account, at
the best the accident has to be held as one resulted out of composite
negligence of the drivers of bus and the car. Thus, from the point of
petitioners/claimants' view, in the case of composite negligence they
are legally entitled to claim compensation from either of the vehicles
involved in the accident. Therefore the petitioners' claim against the
bus for compensation and its liability to pay the compensation are
perfectly justified and the respondents cannot claim exception to
absolve its liability.
17. For the aforesaid, rash and negligent driving of the bus in causing
accident, and consequent fastening of the liability against the
respondent/APSRTC determined by the tribunal deserves to be and is
accordingly affirmed.
18. It is settled proposition that the compensation should meet the
pecuniary loss to the dependants and in evaluation of compensation
annual dependency has to be determined in terms of losses due to
sudden loss of life. In determination of age and the earnings of the
deceased at the relevant time are the determinative factors in arriving at
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the multiplicand whereupon relevant multiplier has to be applied to
arrive at compensation for loss of dependency.
19. In regard to compensation in the authority cited by the
respondent i.e. Patricia Jean Mahajan (supra) the Hon'ble Supreme
Court has categorically held that the exchange of rate of dollar against
the rupee is relevant for assessment of compensation of loss of
dependency.
20. In the present case, the tribunal having regard to the oral
evidence of the accounts manager of the deceased employer
company/PW-2 and the appointment letter/Ex.A-6, the statement of the
chartered accountant/PW-3/Ex.A-8, income tax record, letters from
Internal Revenue Service (USA Department of Treasury)/Exs:A-9 and
A-10 approval of return filed, the avocation of the deceased as technical
architect and software consultant and real estate income at US $
11,600 per month, has been believed by the tribunal, in absence of any
impropriety and rebuttal. As this conclusion is substantiated by the
evidence placed on record, the conclusion of monthly income at $
11,600 and annual income of 1,39,200 of the deceased, justifies
confirmation.
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21. The aspect of future prospects has been considered by the
Hon'ble Supreme Court in the authorities of Sarla Verma and others vs.
Delhi Transport Corporation and another 1 and National Insurance
Company Ltd. vs. Pranay Sethi and others 2. Though the deceased is
non-resident Indian (NRI)/permanent resident of USA of Indian origin,
the income is bound to increase had the deceased lived her eligible
employment period. The principle of awarding future prospects does
not give any discrimination as to application to the Indian and the
persons living abroad. Therefore, while computing compensation
accounting loss of future prospects would be proper. As such in terms
of the dictum in Sarla Verma (supra) and Pranay Sethi (supra) the
tribunal has added 30% of income towards loss of future prospects.
Thus, no reason is found to interfere on this aspect.
22. While computing the compensation the tribunal has deducted
1/3rd of income of the deceased towards personal living expenses. The
Hon'ble Supreme Court in Sarla Verma (supra) and Pranay Sethi
(supra) also considered this aspect and depending on the marital
status, number of dependants, the percentage of deduction towards
personal living expenses have been determined. In Patricia Jean
Mahahan (supra) the Hon'ble Supreme Court has approved the
2009 ACJ 1298
(2017) 16 SCC 860
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deduction of 1/3rd of the income towards personal expenses under this
head. This view is also affirmed and followed in Deo Patodi (supra)
wherein it was held that deduction of 1/3rd towards personal living
expenses is the ordinary rule in India. Thus it shall be held that the
tribunal was proper in deducting personal living expenses of the
deceased, at 1/3rd of her income.
23. In regard to multiplier the tribunal took '14' as per the
prescription, in the authority of Sarla Verma (supra). The Hon'ble
Supreme Court in Patricia Jean Mahahan (supra) while assessing
compensation observed that multiplier method is the best method.
However, while counting the facts therein that the deceased who was
aged about 42 years, an American Doctor of Indian origin died in road
accident in India, the multiplier adopted by the tribunal at '7' and on
appeal by the High Court at '13' was reduced to '10' by observing that
there is disparity in wage earnings in both the countries an the
conversion of income of the deceased to Indian rupee would result in
huge amount.
24. Similarly the deceased in this petition was aged 43 years and
calculation of actual income after deductions would give rise to huge
amount as the earnings in USA has to be converted in Indian rupee.
Having regard to the directions of the Hon'ble Apex Court in Patricia
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Jean Mahahan (supra)that considering the economic situations of both
the countries directed for adoption of appropriate multiplier, and the age
and other factors of the present matter are similar and as the
deceased's earnings in foreign currency being converted into Indian
rupee, we are of the considered opinion that adopting the multiplier as
in the case in Patricia Jean Mahahan (supra) would be just and proper.
Accordingly, the multiplier is modified to '10' instead of '14'.
25. Thus to arrive at compensation the multiplicand has to be
multiplied with the multiplier i.e. '10' would give the total of $12,06,400.
If this sum is multiplied with relevant conversion value applied, the total
amount would come to Rs.5,73,87,482/-. This amount shall be the
compensation for loss of dependency.
26. That apart, as per the directives in the authority Pranay Sethi
(supra) and United India Insurance Company Ltd. v. Satinder Kaur @
Satwinder Kaur and others 3 the petitioners are entitled for spousal and
parental consortium at Rs.48,400/- each (i.e. x 3) and also Rs.36,300/-
towards loss of estate and funeral expenses.
27. For the aforesaid, in all the petitioners are entitled for
compensation of Rs.5,75,68,982/- (Rupees Five Crores Seventy five
2021(11) SCC 780
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lakhs sixty eight thousand nine hundred and eighty two only). The rate
of interest and the ratio of apportionment among the petitioners shall
remain as per the impugned order. The respondent/APSRTC is directed
to deposit the remaining compensation amount within four weeks from
the date of receipt of a copy of this order. Accordingly, the impugned
order stands modified.
28. In the result, the appeal is allowed in part. No costs.
As a sequel, pending miscellaneous petitions if any, stands
closed.
_______________
P. SAM KOSHY, J
_______________
N.TUKARAMJI, J
Date: 07.06.2024
skj
