THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY MACMA Nos. 746 AND 1451 OF 2012 DATED: 24-01-2014 Between:
Smt. Bharathi Dave and another And … Appellant The A.P.S.R.T.C., represented by its Managing Director, Musheerabad, R.T.C "X" Roads, Hyderbad and another … Respondents THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY MACMA Nos. 746 AND 1451 OF 2012 COMMON JUDGMENT: (per the Hon’ble Sri Justice Ashutosh Mohunta) Since both the appeals arise out of the common order, they were heard together and are being disposed of by this common judgment.
MACMA No. 1451 of 2012 is preferred by the appellants - claimants against the Award dated 21-12-2011 passed in O.P No.2490 of 2006 by the learned Chairman, Motor Accident Claims Tribunal- cum-I Additional Metropolitan Sessions Judge-cum-XV Additional Chief Judge, Hyderabad being not satisfied with the amount of compensation awarded to them on account of the death of one Rajeev M. Dave; whereas MACMA No. 746 of 2012 is filed by the Andhra Pradesh State Road Transport Corporation (APSRTC) against the very same Award being aggrieved by the quantum of compensation.
The parties herein are referred to as they were arrayed before the Tribunal.
The aforesaid claim petition was filed by the claimants under Section 166 of the Motor Vehicles Act, 1988 against the APSRTC claiming a compensation of Rs.30,00,000/- on account of the death of the deceased Rajeev M. Dave, who is their son. It was averred in the claim petition that Rajeev M. Dave was working as a Compliance Executive i.e., Software Engineer in M/s. S.P.G. Media Private Limited and getting a salary Rs.40,000/- per month. It was also averred that on 24-10-2004 Rajeev M. Dave and two others were coming in a car bearing No. AP 07K 2444 from Kurnool towards Hyderabad and one Harish was driving the car slowly on the extreme side of the road. While so, when they reached near Peddapally gate, National High Way No.7, under the jurisdiction of Balanagar Police Station, one APSRTC bus bearing No. AP 11Z 2746 of Kurnool - I Depot came in opposite direction in high speed, rashly and negligently and dashed against the car, as a result of which, Rajeev M. Dave and two others sustained severe injuries. Rajeev M. Dave was admitted in Government Hospital, Shad Nagar and from there he was shifted to Nizam's Institute of Medical Sciences (NIMS) Hospital and from there he was again shifted to Mediciti Hospitals where he succumbed to the injuries while undergoing treatment on 23-12-2004. During his treatment, the deceased underwent operations. According to the claimants, they spent an amount of more than Rs.8,00,000/- towards treatment and medical expenses of the deceased from the date of accident.
Before the Tribunal, the respondent - APSRTC filed counter contending that no such accident as contended by the claimants has taken place with its bus bearing No. AP 11Z 2746 on 24-10-2004. The F.I.R in Crime No. 172 of 2004 of Balanagar Police Station might have been registered under the influence of the claimants against the driver of the bus. It was also contended that the claim made by the claimants was excessive and exorbitant.
On the strength of the above pleadings of the parties, the Tribunal framed the following issues:
1. Whether the accident resulting in death of Rajeev M.
Dave occurred owing to the rash and negligent driving of the driver of APSRTC bus bearing No. AP 11Z 2746?
2. Whether the petitioners are entitled to any compensation and, if so, to what amount and from whom?
3. To what relief?
During the course of enquiry, PWs 1 and 2 were examined and Exs.A-1 to A-23 were got marked on behalf of the claimants. On behalf of the respondent - APSRTC, neither oral nor documentary evidence was adduced.
On a consideration of the evidence available on record, the Tribunal on issue No.1 held that the accident occurred due to the rash and negligent driving of the driver of the bus. The Tribunal also held that the claimants are entitled to a total compensation of Rs.11,42,307/- and accordingly, an award was passed for the said amount with interest at 7.5% per annum.
Questioning the inadequacy of compensation and being aggrieved by the award of excess compensation, the claimants and the APSRTC filed the appeals as stated supra.
The learned counsel for the claimants contended that even though the deceased was earning Rs.48,400/- per month, the Tribunal erred in taking the income of the deceased at Rs.12,000/- per month. He also contended that the Tribunal had taken wrong multiplier into consideration and has not granted any amount towards pain and suffering. It was further contended that the Tribunal has granted less compensation towards the medical expenses of the deceased.
The learned Standing Counsel for the APSRTC contended that the accident in this case occurred due to contributory negligence on the part of the driver of the car since the vehicles collided in opposite direction and this was not taken into consideration by the Tribunal. It was also contended that the rate of interest awarded by the Tribunal is on higher side.
In order to see whether the accident occurred due to contributory negligence or otherwise, it is apposite to have a look at the evidence on record in regard thereto. PW 2 who is an alleged eye witness to accident deposed that on 24-10-2004 at about 6.00 PM, the deceased Rajeev M. Dave along with others was going in his car bearing No. AP 07 2444 from Kurnool towards Hyderabad side and the car was being driven slowly on the extreme left side of the road. At that time, one APSRTC bus bearing No. AP 11Z 2746 of Kurnool - I Depot which was coming from Hyderabad side towards Kurnool on the wrong side came in opposite direction at high speed, in rash and negligent manner and dashed the car in which the deceased was travelling and due to the sudden impact, the inmates of the car sustained severe injuries. Though he was cross examined, nothing adverse was elicited to discredit his testimony. The claimants also filed Exs.A-1 and A-2, certified copies of F.I.R and the Charge Sheet which clearly show that the accident occurred due to the rash and negligent driving of the driver of the bus. The police registered the F.I.R and after investigation filed charge sheet against the driver of the bus. Therefore, the Tribunal was right in holding that the oral evidence of PW 2 coupled with Exs.A-1 and A-2 the documentary evidence clearly goes to show that the accident occurred due to the rash and negligent driving of the driver of the bus.
This Court having due regard to the evidence brought on record does not find any valid and legitimate reason to interfere with the same. Further, it seems from the Award that except making an averment that there was no rash and negligence on the part of the driver of the bus, no legitimate attempt was made to prove the same. The APSRTC did not choose to examine any of the witnesses to prove that there was negligence on the part of the driver of the car. Except pleading that there was head on collusion, no effort was made by the APSRTC to establish the same.
Insofar as the quantum of compensation is concerned, in order to prove their case that the deceased was working as Software Engineer in M/s. S.P.G Media Private Limited and earning Rs.48,400/- per month, the claimants except filing Ex.A-14 appointment order of the deceased which contains that his salary was Rs.48,400/- per month, have not examined any employee concerned to prove the same. In the circumstances, the Tribunal rightly relying on the decision of this Court in
[1]
B. Ramulamma v. Venkatesh Bus Union and another , took the
earnings of the deceased at Rs.12,000/- per month. However, the Tribunal has not awarded any compensation towards future prospects. Following the recent judgment of the Supreme Court in
Rajesh v. Rajbir Singh
[2]
, if 50% of the income is added towards future perspectives, it comes to Rs.12,000 + 6000 = Rs.18,000/- per month. Since the deceased is unmarried, if 50% is deducted towards his personal and living expenses, the contribution to the family would come to Rs.9,000/- per month or Rs.1,08,000/- per annum. Even though the deceased is unmarried his age can be taken into consideration for determining the loss of dependency following the judgment of the Supreme Court in P.S. Somanathan and others v
[3]
District Insurance Officer and another . As the deceased was 30
years as on the date of the accident, the appropriate multiplier as per the decision of the Supreme Court in Sarla Verma Vs. Delhi Transport Corporation[4] is ‘17’ and if the same is applied, the loss of dependency would come to Rs.18,36,000/-. The claimants are entitled to receive a sum of Rs.50,000/- towards loss of love and affection and a further sum of Rs.25,000 towards funeral expenses as per the latest decision of the Supreme Court stated supra. The claimants are also entitled to an amount of Rs.1,00,000/- towards the pain and suffering.
It is the case of the claimants that they spent an amount of Rs.8,00,000/- for the treatment and medical expenses of the deceased. In support of their claim, they examined PWs 4, 5 and 6 and marked Exs.A-9, A-10 and A-11. PW 4 who is the Billing Manager of Mediciti Hospital deposed that the deceased was treated in the hospital from 04-12-2004 to 23-12-2004 and Ex.A-10 inpatient bill for a sum of Rs.1,81,939/- was issued by the hospital with seal and signature. PW 5, the Proprietor of Sri Shiva Medical and General Stores deposed that the relatives of the deceased have purchased medicines from their medical shop and he had given the medicines based on the prescription issued by the NIMS Hospital. The bills were given on different dates and the relatives of the deceased have paid an amount of Rs. 2, 26,716/- for the respective bills vide Ex.A-11. Since no medical prescription was filed by the claimants, the bills under Ex.A-11 cannot be taken into consideration. The claimants have also examined PW 6 who is the Assistant Registrar (Billing)/Deputy Financial Controller, NIMS who deposed that the deceased was admitted in their hospital on 24-10-2004 as an inpatient and was discharged on 03-12-2004 and during his stay in the hospital, his relatives paid Rs.81,368/- towards the treatment expenditure and Ex.A-9 is the detailed bill.
Taking into consideration the evidence of PWs 4 and 6 and Exs.A-10 and A-9, we think it appropriate to award a sum of Rs.2,63,307/- (Rs.1,81,939 + Rs. 81,368) towards the medical expenses of the deceased. Thus in all, the claimants are entitled to a total compensation of Rs.22,74,307/-.
Insofar as the rate of interest is concerned, it is to be seen that the Apex Court in ABATI BEZBARUAH v. DEPUTY DIRECTOR
[5]
GENERAL, GEOLOGICAL SURVEY OF INDIA observed that the
question as to what should be the rate of interest, in the opinion of the Court, would depend upon the facts and circumstances of each case. Award of interest would normally depend upon the Bank rate prevailing at the relevant time.
No ratio has been laid down in any of the decisions in regard to the rate of interest to be awarded and the rate of interest is normally awarded on the amount of compensation as a matter of judicial discretion. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc., into consideration. No rate of interest is stipulated under Section 171 of the Act.
For the foregoing reasons, we are of the firm opinion that there cannot be any hard any fast principle in awarding the rate of interest on the compensation so granted and the same is solely on the discretion of the Tribunal or the Court, as the case may be. In the light thereof and having due regard to the facts and circumstances of the case, we are of the opinion that the claimants are entitled to the interest at 7% per annum.
It is represented by the learned counsel for the appellants - claimants that the second claimant who is the father of the deceased died during the pendency of these appeals and that a memo is filed to that effect. In view of the fact that the second appellant - claimant died, the amount of compensation to be awarded by us will go to the first claimant who is the mother of the deceased.
In the result, M.A.C.M.A No. 1451 of 2012 filed by the claimants is allowed in part awarding a sum of Rs.22,74,307/- together with proportionate costs and interest at 7% per annum from the date of petition till the date of realization, whereas M.A.C.M.A No. 746 of 2012 filed by the APSTRC is also allowed in part to the extent of reducing the rate of interest from 7.5% to 7% per annum.
Miscellaneous petitions, if any, pending consideration shall stand closed. No order as to costs.
ASHUTOSH MOHUNTA, J M. SATYANARAYANA MURTHY, J 24th January, 2014 ks
[1] 2009 (6) ALD 684 (DB)
[2] 2013 ACJ 1403
[3] 2011 ACJ 737
[4] (2009) 6 SCC 121
[5] (2003) 3 SCC 148