* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.81 of 2009
%06.11.2014
Between:
Andhra Pradesh State Road Transport Corporation, Rep. by its Managing Manager, Hyderabad Appellant AND Pilli @ Ekula Laxmi and others. …. Respondents ! Counsel for Appellant : Smt. Danda Radhika ^ Counsel for Respondents : — < Gist:
> Head Note:
? Cases referred:
1. AIR 1998 SC 3191 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. No.81 of 2009
JUDGMENT:
Aggrieved by the Award dated 08.07.2008 in O.P.No.282 of 2006 passed by the Chairman, MACT-cum-District Judge, Karimnagar (for short “the Tribunal), the 2nd respondent in the OP/APSRTC preferred the instant MACMA.
2 a) On factual side, on 01.01.2006 at about 1.00 PM, when the deceased—Pilli @ Ekula Sambaiah @ Narsaiah along with one Janga Raji Reddy was going on a motorcycle bearing No.AP 15L 3293 towards Centenary Colony and when they reached near 10 Incline mine cross road, one RTC bus bearing No.AP 10Z 7345 came in opposite direction being driven by its driver in a rash and negligent manner and dashed the motorcycle. Due to which they fell on the ground and the motorcycle was pushed to some distance and deceased died on the spot. On these pleas the claimants who are wife, children and mother of deceased filed O.P.No.282 of 2006 against respondents 1 and 2, who are the driver and owner of the offending bus and claimed Rs.25,00,000/- as compensation.
b) Respondent No.1/owner remained ex-parte.
c) Respondent No.2—APSRTC filed counter and opposed the claim denying all the material averments. R2 contended that when R1 was proceeding from Odded to Godavarikhani and he reached near 10 Incline turn, he observed four motorcyclists coming with high speed and therefore, he slowed down the bus and meanwhile, the deceased came at high speed and in a rash and negligent manner and dashed against the right side bumper of the bus and fell down and there was no negligence on the part of R1. R2 also contended that the motorcyclist and pillion rider were in a drunken condition and the accident was occurred due to the fault of motorcyclist himself. R2 further contended that claim is highly excessive and exorbitant and thus prayed to dismiss the OP.
d) During trial PWs.1 to 3 were examined and Exs.A1 to A9 were marked. RW1 was examined and Ex.B1—copy of order passed in O.P.No.735 of 2006 was marked on behalf of respondents.
e ) A perusal of the award would show that the Tribunal on considering the oral and documentary evidence held that both the RTC bus driver and motorcyclist were responsible for the accident and fastened the liability in the ratio of 90:10 respectively and assessed the total compensation at Rs.11,80,776/-, and as the deceased himself contributed to the accident to the extent of 10%, awarded Rs.10,62,699/- (to the extent of 90%) with proportionate costs and simple interest at 7.5% p.a.
Hence, the appeal by APSRTC.
3 ) The parties in this appeal are referred as they stood before the Tribunal.
4) Heard arguments of Smt.Danda Radhika, learned counsel for appellant/APSRTC. Though notice to respondents 1 to 5/claimants was served but there is no representation on their behalf. Respondent No.6/driver is not necessary in this appeal as per cause title.
5 a) Fulminating the award, learned counsel for appellant/APSRTC firstly contended that the evidence would show that the bumper and headlights on the right side of the bus were broken in the resultant accident which would imply that the motorcycle rider drove his vehicle in a rash and negligent manner and contributed for the accident and therefore, the liability between the bus driver and motorcycle rider should have been apportioned in the ratio of 50:50 by the Tribunal but however, the Tribunal fixed the liability of the motorcycle only as 10% which is far too low and unjust. She thus prayed that the contributory negligence on the part of the motorcyclist may be fixed at 50% and compensation may be reduced accordingly.
b ) Secondly, learned counsel argued that the net salary of the deceased ought to have been taken for computation of compensation but the Tribunal erroneously took his gross salary and thereby compensation was unduly escalated. Learned counsel thus prayed to allow the appeal.
6) In the light of above arguments, now the point for determination in this appeal is:
“Whether the award passed by the Tribunal is factually and legally sustainable?”
7) POINT: The accident, involvement of the APSRTC bus bearing No. AP 10 Z 7345 and motorcycle bearing No.AP 15 L 3293 and death of deceased are not in dispute. Regarding the driving fault, the contention of APSRTC since inception was that the rider of motorcycle and some of his friends who were following in other motorcycles were in a drunken state as they were returning from a party and when they reached 10 Incline mine cross road, the motorcyclist drove his vehicle in a rash and negligent manner and dashed the opposite coming RTC bus and caused the accident and thus entire fault lies with him. It must be noted that in order to prove that the rider of the motorcycle was in a drunken state, the APSRTC has not produced any evidence from the hospitals where the rider and pillion rider of the motorcycle were treated. The RTC has also not examined the bus driver to prove the alleged drunken state of the rider of the motorcycle. Therefore, the Tribunal held that the APSRTC failed to prove the drunken state of the rider or the pillion rider of the motorcycle. Sofaras rash and negligent driving by the rider of the motorcycle is concerned, the Tribunal having regard to the mentioning in Ex.A.6—Motor Vehicles Inspector’s Report to the effect that the front bumper and front headlight on the right side of the bus
were damaged, opined that there was negligence on the part of the rider of the motorcycle besides the bus driver. Accordingly, it apportioned the liability between the bus driver and motorcycle rider in the ratio of 90:10. On a careful perusal of the oral and documentary evidence, I find no fault in the above finding of the Tribunal. It must be noted that it is not a case of head on collision between the two vehicles on the middle of the road. On the other hand, the motorcycle hit on the extreme right side of the bus while crossing it. The APSRTC has not examined its driver or passengers to prove that the entire fault in the accident was with the motorcycle rider. Therefore, having regard to the evidence available on record, the Tribunal rightly apportioned the liability between the two drivers as 90:10. Therefore, I find no force in the argument of the appellant that the liability should be apportioned equally. Hence, this argument is rejected.
8) The next argument of the appellant is that the Tribunal ought to have taken the net salary of the deceased for computation of compensation. As per the evidence of PW.3, who is a Clerk in 10-A Incline mine, Godavarikhani, the deceased worked as multi job/ multi skilled group workmen in 10-A mines. PW.3 produced Ex.A.7—salary certificate of the deceased issued by SCCL, according to which his gross salary for the month of December, 2005 i.e, previous month of his death was Rs.13,326/-. Some deductions towards CMPF, FPS, LIC, FBIS and FA totaling Rs.4,426/- were also shown in Ex.A.7. PW.3 deposed that except the deduction of Rs.250/- towards Festival Advance (F.A), the other deductions were towards contributions made by the deceased. PW.3 also deposed about the bonus and perquisites which the deceased was entitled. Be that it may, the Tribunal after deducting the festival advance of Rs.250/- accepted the balance amount of Rs.13,076/- for computation of compensation which is now being impugned by learned counsel for appellant. Her contention is that the Tribunal ought to have taken net salary alone. I am afraid, this argument is not correct. As per PW.3, the other deductions like LIC, Family Pension Scheme (FPS), CMPF and FBIS are the contributions made by the deceased. As such, the Tribunal rightly exempted them from deduction.
9) It may be noted that in the case of Helen C.Rebello and others vs. Maharashtra State Road Transport Corporation and another, the Apex Court held that the LIC amount received by deceased’s family is not liable for deduction from the compensation, because LIC amount is not a pecuniary advantage received directly on account of death in the accident. That being so, the contribution made by the deceased in the instant case for LIC benefit to be obtained at a future date is also not liable for deduction from the gross salary. Similar is the case with contributions like CMPF, FPS, FBIS etc, which are not the pecuniary advantages arising out of accidental death of the deceased but they are only contributions. Therefore, this argument of the appellant cannot be accepted.
1 0 ) In the result, I find no merits in the appeal and the same is accordingly dismissed by confirming the award passed by the Tribunal in O.P.No.282 of 2006. No costs in the appeal.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U.DURGA PRASAD RAO, J Date: 06.11.2014
Note: L.R Copy to be marked: Yes / No scs