* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.2578 of 2009
%02.06.2014
Between:
APSRTC and another. ....
Appellants AND Ch. Surekha and others …. Respondents ! Counsel for Appellants : Sri K. Madhava Reddy ^ Counsel for Respondents : Sri P. Ramakrishna Reddy < Gist:
> Head Note:
? Cases referred:
1) (2009) 6 SCC 121
2) (2013) 9 SCC 54
3) 2011 ACJ 1999 Madras
4) 2011 ACJ 2073 Madras
5) 2013 AAC 2791 (P & H)
6) AIR 2003 SC 674
7) AIR 2008 SC 1221
8) 2011 ACJ 2418 SC
9) 2013 ACJ 2733 SC
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A. No.2578 of 2009
Judgment:
Challenging the Award in MVOP No.354 of 2007 passed by Chairman, MACT-cum-Chief Jude, City Civil Court, Hyderabad (for short “the Tribunal”) APSRTC preferred the instant MACMA.
2) The factual matrix of the case is thus:
a) The first claimant is the wife and claimant Nos.2 and 3 are the sons and 4th claimant is the father of the deceased— Ch.Raju. Their case is that on 22-12-2006 when the deceased was proceeding on the motorcycle bearing No.AP 28AD 9013 from Nagaram towards ECIL and when he reached Nagaram village, an APSRTC bus bearing No.AP 9Z 5831 of Ranigunj-II deport came in the opposite direction being driven by its driver at high speed and in a rash and negligent manner and dashed the motorcycle, and the deceased fell down and received fracture of head and other injuries and his motor cycle was completely damaged. Immediately he was admitted in Vijaya Multi Specialty Hospital, Nagaram, R.R.District and thereafter, he was shifted to Poulomi Hospital, A.S.Rao Nagar, Secunderabad for better treatment where he succumbed to injuries. It is averred that accident was occurred due to the fault of APSRTC Bus driver. On these averments the petitioner filed MVOP No.354 of 2007 against respondents/APSRTC and claimed Rs.6 lakhs as compensation under different heads mentioned in the OP.
b) Respondents/APSRTC filed counter opposing claim. It denied the manner of accident, age and avocation of the deceased. It denied petitioners’ plea that the accident occurred due to the fault of bus driver and urged to put the petitioners to strict proof of the same. It contended that the accident was occurred due to the fault of the deceased himself and that the claim is excessive and exorbitant.
c) During trial PWs1 and 2 were examined and Exs.A1 to A14 were marked on behalf of the claimants. No evidence was adduced on behalf of the respondents.
d) A perusal of the award would show that issue No.1 is concerned, the Tribunal having regard to the evidence of PWs1 and 2 coupled with Ex.A1—FIR, A2—charge sheet, A3—inquest report and A5—MVI’ report held that accident was occurred due to the fault of bus driver.
e) Issue No.2 which relates to quantum of compensation is concerned, the Tribunal granted Rs.5,95,767/- as comepnsation under different heads with costs and interest @ 7.5% p.a. as follows:
Loss of income and future expectancy of life Rs. 5,30,400-00 Loss of estate Rs. 15,000-00 Loss of consortium Rs. 15,000-00 Funeral expenses and Transportation charges Rs. 4,000-00 Medical expenses Rs. 25,000-00 Repairing charges and for replacement of parts of the motor cycle Rs. 6,367-00 Total Rs. 5,95,767-00 Hence the appeal.
3) Heard Sri Kambham Madhava Reddy, learned counsel for appellants/APSRTC and Sri P.Ramakrishna Reddy, learned counsel for respondents/claimants.
4 a) Criticizing the award learned counsel for appellant firstly argued that the Tribunal erred in holding that the bus driver was responsible for the accident. In fact the deceased drove his motorcycle at high speed and while negotiating a culvert, he went and dashed the right side of bumper of the bus. Hence the deceased himself was at fault.
b) Secondly, learned counsel argued that the Tribunal erred in taking notional income of the deceased as Rs.3,900/- per month instead of Rs.15,000/- per annum though there is no proper evidence in this regard.
c) Thirdly, learned counsel argued that the Tribunal erred in accepting ‘17’ as multiplier, it ought to have taken a lesser multiplier having regard to the age of the deceased.
He thus prayed to allow the appeal.
5 a) Per contra, while supporting the award, learned counsel for respondents firstly argued that the Tribunal rightly fixed the liability on the bus driver having regard to the eye witness account of PW.2 and also due to the fact that there was no contra evidence of bus driver.
b) Secondly, while supporting the quantum of compensation, learned counsel argued that in fact the claimants are entitled to more compensation than awarded by the Tribunal. Expatiating it, learned counsel argued that the deceased was a young man of 28 years age and he was a skilled worker experienced in screen printing and he was earning Rs.6,000/- p.m as can be seen from Ex.A.10—certificate still the Tribunal fixed his income as Rs.3,900/- p.m only. Added to it, the Tribunal failed to consider the future prospects in the earnings of the deceased. Thereby, the compensation was drastically reduced.
c ) Learned counsel further submitted that following the
[1]
decision in Sarla Verma vs. Delhi Transport Corporation , the Tribunal ought to have deducted 1/4th instead of 1/3rd from the gross income of the deceased since the number of dependents is four.
d ) Learned counsel further argued that in granting compensation for loss of consortium and funeral expenses, the Tribunal has not followed the dictum laid down in Rajesh and
[2]
others vs. Rajbir Singh . If the above precedential law governing the field were to be followed, the claimants will be entitled to more compensation than they claimed and awarded by the Tribunal. Learned counsel submitted that though the instant appeal is preferred by APSRTC and no appeal or cross objections are filed by the claimants seeking enhancement of the compensation, still if this Appellate Court comes to conclusion that they are entitled to a just compensation which is more than the one claimed by them and awarded by the Tribunal, the appellate Court has power to grant the said compensation. On this point, he relied upon the following decisions:
1) Managing Director, Tamil Nadu State Trans. Corpn. Ltd.
[3]
vs. Lakshmanan and others
[4]
2) C.K. Balaji and another vs. P. Chandrasekaran
3) Oriental Insurance Company Ltd. v. Gurdev Singh and
[5]
others Thus while praying to dismiss the appeal, he sought for enhancement of the compensation.
6 ) As already stated supra, the Tribunal granted total compensation of Rs.5,95,767/- and interest at 7.5% p.a. While the appellant/APSRTC challenging its liability as well as quantum, the respondents/claimants contend that award is too low and needs enhancement. Admittedly, the claimants have not preferred any independent appeal or cross objections seeking enhancement of compensation.
In the light of the above rival arguments, the points for determination in this appeal are:
1) Whether the finding of the Tribunal in fixing liability on the APSRTC bus driver is correct?
2) If compensation awarded by the Tribunal is held to be inadequate, whether it can be enhanced in the instant appeal?
7) POINT No.1: The accident, involvement of the APSRTC bus bearing No. AP 9 Z 5831 and motorcycle bearing No. AP 28 AD 9013 and death of deceased are all admitted facts. The claimants in order to prove the fault of the bus driver examined PW.2—Kandadi Venkat Reddy who is said to be the eye witness
to the accident. He is referred as eye witness and shown as LW.2 in the charge-sheet, so his evidence assumes importance. He deposed that on 22.12.2006 at about 5:00pm, when he was going on his motorcycle bearing No. AP 28 G 5986 from Kushaiguda towards Rampally Dayara Village and when he reached near Toddy shop at Nagaram village, he saw the deceased—Raju coming in his opposite direction on his motorcycle bearing No. AP 28 AD 9013 slowly on the extreme left side of the road and when he reached a Church, at that time the offending bus bearing No. AP 9 Z 5831 of Ranigunj-II depot came behind PW.2 being driven by its driver in a rash and negligent manner and after overtaking his motorcycle, went and dashed the motorcycle of the deceased by going on a wrong side. PW.2 claimed that he witnessed the accident from close distance since the bus dashed the deceased immediately after overtaking him. Due to the impact of hit, the deceased fell down and sustained fracture to his head and other fatal injuries. His motorcycle was also damaged. PW.2 further deposed that he with the help of public gathered at the spot shifted the deceased to Vijaya Multi Speciality Hospital, Nagaram and after first-aid, he was shifted to Poulomi Hospital, A.S. Rao Nagar, where he died. PW.2 asserted that the accident was occurred due to the fault of APSRTC bus driver. In the cross-examination he stated that the width of the road at the place of accident is 40 feet and the bus passed a culvert before accident and the said culvert is low level on one side and high level on the other side and the bus passed the culvert from the low level side. He denied the suggestion that the vehicles passing through the culvert will be slowed down and the bus was also slowed and that the motorcyclist himself came at high speed and dashed the right side bumper of the bus. He stated that since he was engaged in taking the deceased to the hospital, he did not sign on the scene of offence panchanama conducted by the police. He denied the suggestion that he was speaking falsehood to help the claimants. This is the evidence of PW.2 regarding the manner of occurrence of accident. As per his version, after crossing him, the bus went at high speed on a wrong side and dashed the deceased. Since PW.2 is an eye witness and nothing specific could be extracted in the cross- examination to impeach the veracity of his testimony, the same can be believed. Apart from his oral evidence, police too after investigation found fault with the bus driver and charge-sheeted him under Ex.A.2. To rebut the above oral and documentary evidence, the APSRTC has not examined its bus driver to explain his version of the accident and prove his innocence. So the Tribunal rightly held that the bus driver was responsible for the accident. Hence this point is answered accordingly.
8) POINT No.2: As already stated supra, the appellant contends compensation is excessive, whereas the claimants argue that compensation is low and inadequate. In a case of this nature, in an unreported judgment of this Court in MACMA No.2047 of 2010 dated 02.06.2014, this Court happened to discuss several decisions of Hon’ble Apex Court reported in i)Nagappa vs.
[6]
Gurudayal Singh , ii) The APSRTC, rep.by its General Manager and another vs. M. Ramadevi and others
[7]
, iii) Ranjana Prakash and others v. Divisional Manager and
[8]
another and iv) Sanobanu Nazirbhai Mirza and others vs.
[9]
Ahmedabad Municipal Transport Service and ultimately followed the principles laid down in the Ranjana Prakash’s case (8 supra) on the rights of the respective parties, the role of the High Court (Appellate Court) which are as follows:
“Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.”
While giving the above principles, the Apex Court had also happened to consider the powers of the Appellate Court under Order 41 Rule 33 CPC. It observed thus:
“This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the Respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief.”
9) The principles laid down above can be summed up thus:
(i) The High Court shall by taking facts and applying relevant principles determine just compensation.
(ii) If compensation so determined is more than the compensation awarded by the Tribunal, it shall allow the appeal if it is filed by the claimants and dismiss the appeal if it is filed by the owner/insurer.
(iii) If the compensation determined by the High Court less than the compensation awarded by the Tribunal, it shall dismiss the appeal if filed by the claimants for enhancement and allow the appeal if filed by the owner/insurer for reduction.
(iv) The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation. (Emphasis supplied)
10) In the light of above principles laid down in Hon’ble Apex Court’s decision governing the issue on hand, the decisions cited by the respondents could not be followed. Hence following the principles in Ranjana Prakash’s case (8 supra), the instant appeal is decided thus.
11) As already stated, the total compensation is Rs.5,95,767/-. Loss of dependency is concerned, the Tribunal though happened to verify Ex.A.10—certificate issued by the Sarpanch of the village to the effect that the deceased was doing screen printing work and earning about Rs.6,000/- p.m, however observed that the deceased may not be having screen printing work regularly and his income fluctuates. On this observation, the Tribunal fixed his income as Rs.3,900/- p.m. I find the said observation perfectly right. Then the Tribunal deducted 1/3rd from this amount towards personal expenses of the deceased. As submitted by learned counsel for respondents, as per Sarla Verma’s case (1 supra), 1/4th has to be deducted when number of dependents is 4 to 6. In the instant case, the number of dependents are 4. Following Sarla Verma’s case (1 supra), the net contribution of the deceased to his family comes to Rs.2,925/-
. The Tribunal selected ‘17’ as multiplier and even according to Sarla Verma’s case (1 supra), multiplier for the persons in the age group of 26 to 30 years is ‘17’. So multiplying the net annual contribution of the deceased with ‘17’ we will arrive at Rs.5,96,700/- (Rs.2,925/- x 12 x 17). So the claimants are entitled to Rs.5,96,700/- towards loss of dependency. Further, since the deceased died in the prime of his youth, the compensation for loss of consortium can be enhanced from Rs.15,000/- to Rs.30,000/-. Similarly following Rajesh’s case (2 supra), funeral expenses and transportation charges can also be increased from Rs.4,000/- to Rs.25,000/-. The remaining items of compensation can be maintained as awarded by the Tribunal.
12) Thus the total compensation payable to the claimants can be stated as follows:
Total Rs. 6,98,067-00
13) Now, in the light of the principles laid down in Ranjana Prakash’s case (8 supra), since the compensation assessed by this Court is higher than the compensation awarded by the Tribunal and as the appeal is filed by the APSRTC and not by the claimants, the only course open for this Court is to dismiss the appeal. This point is answered accordingly
14) In the result, this appeal is dismissed by confirming the award passed by the Tribunal. No costs in the appeal.
As a sequel, miscellaneous petitions if any pending, shall stand closed.
U.DURGA PRASAD RAO, J Date: 02.06.2014
Note: L.R. Copy to be marked: Yes/No
scs/Murthy
[1] (2009) 6 SCC 121
[2] (2013) 9 SCC 54
[3] 2011 ACJ 1999 Madras
[4] 2011 ACJ 2073 Madras
[5] 2013 AAC 2791 (P & H)
[6] AIR 2003 SC 674
[7] AIR 2008 SC 1221
[8] 2011 ACJ 2418 SC
[9] 2013 ACJ 2733 SC