* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A Nos.135 and 1678 of 2009
%03.06.2014
MACMA No.135 of 2009:
Between:
Andhra Pradesh State Road Transport Corporation, Rep. by its Managing Director, Hyd.
and another. ….
Appellants AND Salma Begum and others. ….
Respondents ! Counsel for Appellants : Sri K. Madhava Reddy ^ Counsel for Respondents : Sri P. Ramakrishna Reddy MACMA No.1678 of 2009:
Between:
Salma Begum and others. ….
Appellants AND Andhra Pradesh State Road Transport Corporation, Rep. by its Managing Director, Hyd.
and another. ….
Respondents ! Counsel for Appellants : Sri P. Ramakrishna Reddy ^ Counsel for Respondents : Sri K. Madhava Reddy < Gist:
> Head Note:
? Cases referred:
1) (2009) 6 SCC 121
2) 2013 ACJ 1441
3) 2011 ACJ 1441
4) (2013) 9 SCC 54
5) 2003 ACJ 12 = AIR 2003 SC 674 THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. Nos.135 and 1678 of 2009
COMMON JUDGMENT:
Aggrieved by the Award dated 12-03-2008 in MVOP No.2173 of 2006 passed by Chairman, MACT-cum-Chief Judge, City Civil Court, Hyderabad (for short ‘the Tribunal’) both the APSRTC and claimants preferred MACMA Nos.135 and 1678 of 2009 respectively.
2) The factual matrix, which led to file the present appeals, can be stated thus:
a) The claimants are legal representatives of the deceased—Shaik Abdul Raheem who died in a road accident on 8.8.2006. Their case is that on 08-08-2006 when the deceased was proceeding from South Lallaguda Railway Workshop to his residence at Mirzalguda, Secunderabad on his scooter bearing No.AP 28F 3817 and when the scooter reached near New Railway Bridge, North Lallaguda, Secunderabad, an APSRTC bus bearing No.AP 9Z 5838 being driven by its driver at high speed and in a rash and negligent manner and dashed the scooter. Due to which the deceased and pillion rider—Venkata Swamy fell down on the road and front right wheel of the bus ran over both of them resulting in their instantaneous death. The scooter of the deceased was completely damaged. Hence, the claimants filed MVOP No.2173 of 2006 against the respondents and claimed Rs.10 lakhs as compensation under different heads mentioned in the OP.
Respondents contested the matter and trial was conducted.
b) During trial PWs.1 and 2 were examined and Exs.A1 to A8 and Ex.X1 were marked on behalf of claimants. No evidence was adduced on behalf of the respondents.
c) After completion of trial, the Tribunal basing on the evidence placed on record came to the conclusion that the accident was occurred due to the fault of driver of APSRTC bus. So far as quantum of compensation is concerned, the Tribunal awarded Rs.7,37,920/- as compensation under different heads as below:
Loss of income and future expectancy Rs. 7,09,920-00 Loss of estate Rs. 15,000-00 Transportation charges Rs. 1,000-00 Funeral expenses Rs. 2,000-00 Loss of consortium Rs. 10,000-00 Total Rs. 7,37,920-00 Hence, the appeals by APSRTC challenging the quantum of compensation and claimants questioning the inadequacy of the compensation.
3) The parties in the appeals are referred as they stood before the Tribunal.
4) Heard arguments of Sri K.Madhava Reddy, learned counsel for APSRTC in MACMA No.135 of 2009 and Sri P.Ramakrishna Reddy, learned counsel for claimants in MACMA No.1678 of 2009.
5) Learned counsel for the APSRTC while criticizing the award, firstly argued that the Tribunal erred in holding that APSRTC bus driver was responsible for the accident. Having regard to the facts and evidence it ought to have held that the deceased himself was responsible for the accident as he drove the scooter at high speed and in a careless manner and dashed the bus.
Secondly, while criticizing the award as highly excessive and exorbitant learned counsel argued that the Tribunal grossly erred in accepting the net monthly salary of the deceased as Rs.5,220/-. As per Ex.A8-pay slips, the net monthly salary after deductions would not be more than Rs.3,500/-. By this, the compensation for loss of income has drastically increased which needs to be reassessed.
Thirdly, learned counsel argued that the Tribunal erred in accepting 17 as multiplier. He submitted that as per the decision of Apex Court in SARLA VERMA AND OTHERS v.
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DELHI TRANSPORT CORPORATION AND OTHER , 16 would be the appropriate multiplier since the deceased was aged 33 years.
Finally, learned counsel argued that the compensation awarded under other heads is also excessive and so the compensation awarded as a whole needs to be reduced. He thus prayed to allow his appeal MACMA No.135 of 2009 and dismiss the claimants’ appeal MACMA No.1678 of 2009.
6. Per contra, learned counsel for the claimants supporting the finding of the Tribunal holding the bus driver guilty argued that the oral evidence coupled with the documentary evidence clinchingly establish that the APSRTC bus driver went on wrong side and hit the scooter of the deceased and therefore, the Tribunal rightly held the bus driver guilty and the APSRTC has not adduced any contra evidence to establish the innocence of its bus driver and therefore now it cannot agitate as if the bus driver was innocent.
Secondly, criticizing the compensation awarded as grossly inadequate, he argued that the Tribunal erred in taking the monthly salary of the deceased on lower side by applying certain deductions to the gross salary. Learned counsel would argue that except the item ‘professional tax’ shown in the deductions side of Ex.A8-pay slips, none other items shall, as per law, be taken as deductions. Expatiating it, he submitted that the provident fund subscriptions, LIC subscriptions, Railway group insurance etc., being the contributions made by the deceased in the form of savings, they cannot be applied as deductions from the gross salary. Similarly, festival advance, CCS loan etc., are not the statutory deductions as they were the loans taken by him for the benefit of family and repaid instalment-wise, so they also cannot be taken as deductions. Thus, he contended that except professional tax which is a statutory deduction, none other items shall be applied as deductions from the gross salary for computation of compensation. On this aspect, he relied upon the following decisions:
(i) VIMAL KANWAR AND OTHERS v. KISHORE
[2]
DAN AND OTHERS
(ii) SUNIL SHARMA AND OTHERS v. BACHITAR [3] SINGH AND OTHERS He argued that if the professional tax of Rs.80 is deducted from his gross salary, the net salary will be around Rs.7,120/- and to this amount at least 50% has to be added towards future prospects of the deceased because as per the evidence of PW3, the deceased was a young employee who died in harness leaving long service and bright future. If 50% towards future prospects is added to net monthly salary of the deceased and loss of dependency is computed, learned counsel submitted, the compensation under the loss of dependency will come around 15,00,000/-. He further argued that the Tribunal granted low amount for loss of consortium, loss of estate and funeral expenses. If the compensation for those heads is suitably increased in tune with the principle laid down by the Apex Court in RAJESH AND OTHERS v. RAJBIR SINGH AND OTHERS
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, the total compensation will be reaching around Rs.17,00,000/-. To this amount, he argued, compensation for love and affection to mother is also to be added and if done, the total compensation would ultimately come to Rs.18,00,000/- and odd. Learned counsel argued that in the process of granting just compensation, the Court can award more compensation than sought by the claimants and Court’s power is not fettered in this regard, particularly, when the claimants preferred appeal for enhancement of compensation.
As a reply, learned counsel for APSRTC argued that the Tribunal in fact has taken only less deductions and it ought to have taken only net salary of Rs.3,500/- into consideration. He further argued that just compensation cannot exceed the claim made by the claimants.
7. In the light of the above rival arguments, the point for determination in these two appeals is:
Whether the award passed by the Tribunal is factually and legally sustainable?
8. POINT:
The accident, involvement of APSRTC bus bearing No. AP 9Z 5838 and scooter bearing No. AP 28F 3817 and death of deceased are admitted facts.
The first point raised by APSRTC is that the bus driver was not guilty of the accident and the finding of the Tribunal is erroneous in this regard. It may be noted that before the Tribunal, APSRTC took the counter plea as if no accident as pleaded took place and APSRTC bus was not involved in the accident. However, basing on the eye witness evidence of PW2 coupled with the documentary evidence such as Ex.A1 FIR, Ex.A2 charge sheet, Ex.A3 inquest report, the Tribunal held that APSRTC bus bearing No. AP 9Z 5838 was involved in the accident and its driver was guilty of the offence. I perused the aforesaid evidence and endorse the same view. It may be noted that the evidence of PW2 who is an eye witness clearly demonstrates that just before the accident, when the deceased and one Venkataswamy were proceeding on the scooter slowly on the extreme left side of the road near new railway bridge, North Lalaguda, Secunderabad, the APSRTC bus driven by its driver at high speed and in a rash and negligent manner came in opposite direction on wrong side and dashed the scooter. PW2 is cited as an eye witness in the charge sheet also. Nothing specific was extracted in the cross examination to impeach his credibility. So, the oral evidence of PW2, coupled with other documentary evidence, clearly establish the guilt of the bus driver. As observed by the Tribunal, no contra evidence is adduced by APSRTC to prove that no accident as pleaded occurred and its driver was not responsible for the accident. Therefore, the contention of APSRTC in this regard cannot be countenanced.
9. The next aspect in these appeals is whether the compensation awarded by the Tribunal is just and reasonable or needs re-assessment. As already stated supra, the Tribunal granted Rs.7,37,920/- under different heads. Both sides criticized the compensation awarded for loss of dependency – APSRTC on the plea that the Tribunal took high salary without applying all the deductions and the claimants on the plea that the Tribunal deducted some non-statutory items and thereby reduced the salary amount.
In the above context, Ex.A8-pay slips would show that the deceased was getting average gross monthly salary of Rs.7,200/- (as it was varying month-wise). The Tribunal also took his gross salary as Rs.7,208/- and to this extent it was right. Then Ex.A8-pay slips would show that various deductions were made from his salary every month. After applying those deductions, his average net monthly salary comes to Rs.3,650/- and the Tribunal also considered the same amount rightly. Then the deductions are concerned, the Tribunal did not consider three items i.e., Rs.500/- towards provident fund advance, Rs.150/- towards festival advance and Rs.920/- as CCS loan as statutory deductions and added them to the net salary and thus arrived the net salary as Rs.5,220/-. Now, the contention of the claimants is that other deductions viz., LIC contribution, CCS contribution, provident fund subscription, railway group insurance subscription etc ought not to have been taken as deductions. Per contra, APSRTC contends that all the deductions must be applied in which case the net salary would come around Rs.3,500/-. In the cited decision SUNIL SHARMA (3 supra), it was held that EPF and GIS shall not be deducted for calculating the income of the deceased. Similarly in VIMAL KANWAR (2 supra), it was held that PF, pension and insurance shall not be taken as pecuniary advantage for applying as deduction.
10. In the light of above decisions, certain items like PF subscription of Rs.370, LIC contributions (average) Rs.400, Railway group insurance of Rs.15/-, CCS contribution of Rs.667/- shall also be added to the salary. No clarification was provided so far as CMTD is concerned, hence the same can be omitted. If above items are added to salary, the net salary comes to Rs.6,672/-. To this amount, a sum of Rs.1,328/- can be added towards future prospects of the deceased taking the present status of the deceased and future vagaries in the process of promotion into account. Thus, the total earnings of the deceased comes to Rs.8,000/- (Rs.6,672/- + Rs.1,328/-). The annual income of the deceased which will serve the purpose as multiplicand comes to Rs.96,000/- (Rs.8,000/- x 12). Since the number of dependants are five, 1/4th can be deducted towards personal expenditure of the deceased following the dictum in SARLA VERMA’s case (1 supra). So, the net annual contribution of the deceased comes to Rs.72,000/- (Rs.96,000 x 3/4). Then a suitable multiplier has to be selected. Ex.X1 shows his date of birth as 16.06.1973. Hence the deceased was 33 years old by the time of his death. In SARLA VERMA (1 supra), 16 is provided as multiplier for persons in the age group of 31 to 35 years. Thus, by multiplying the net annual contribution of the deceased with 16, we will arrive at Rs.11,52,000/- (Rs.72,000/- x 16). So, the claimants are entitled to Rs.11,52,000/- towards loss of earnings of the deceased/dependency.
The other items are concerned, compensation for funeral expenses and loss of consortium appear to be low. Hence, the amount for funeral expenses is increased to Rs.10,000/- and loss of consortium to Rs.25,000/-. A sum of Rs.10,000/- is awarded towards loss of love and affection to mother and children of the deceased. Thus, the total compensation payable to the claimants under different heads can be stated thus:
vi) Loss of love and affection - Rs. 10,000/-
Total Rs.12,13,000/-
11. It may be noted that the claim before the Tribunal is for Rs.10,00,000/- and hence the point is whether more compensation than prayed for can be awarded or not. In
[5]
NAGAPPA v. GURUDAYAL SINGH AND ORS , the Hon’ble Apex Court held thus:
“Accordingly, under the Act, there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award ‘just’ compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim, there would be change of cause of action. It is also to be stated that as provided under sub- section (4) to Section 166, even report submitted to the claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, Court may permit amendment to the claim petition.”
12. Following the above principle, just compensation can be awarded by the Court even if it exceeds the amount prayed for. Added to it, in the instant case, the claimants preferred appeal for enhancement of compensation. Considering all these, the above compensation is awarded.
13. In the result, both the MACMAs are disposed of as follows:
(i) MACMA No.135 of 2009 is dismissed.
(ii) MACMA No.1678 of 2009 is allowed and compensation is enhanced by Rs.4,75,080/- with proportionate costs. The enhanced compensation shall carry simple interest at 6% per annum from the date of O.P., till the date of realization.
(iii) The respondents shall deposit the compensation amount within two months from the date of this judgment, failing which, execution can be taken out against them.
(iv) The claimants are directed to deposit the additional Court fee within one month from the date of this judgment.
(v) No costs in the appeals.
JUSTICE U. DURGA PRASAD RAO 3rd June, 2014
Note: L.R. copy to be marked: Yes/No
KSM
[1] (2009) 6 SCC 121
[2] 2013 ACJ 1441
[3] 2011 ACJ 1441
[4] (2013) 9 SCC 54
[5] 2003 ACJ 12 = AIR 2003 SC 674