* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A Nos.2953 of 2009 and 1846 of 2010
%22.04.2014
MACMA No.2953 of 2009:
Between:
Smt. K. Jayasree & others. …. Appellants AND K. Shankara Reddy and others. …. Respondents ! Counsel for Appellants : Sri P. Ramakrishna Reddy ^ Counsel for Respondent No.2 : Sri P. Harinatha Gupta ^ Counsel for Respondents 3 and 4 : Sri K. Madhava Reddy
MACMA No.1846 of 2010:
Between:
Andhra Pradesh State Road Transport Corporation, Rep. by its Managing Director, Hyd. …. Appellants AND Smt. K. Jayasree and others. …. Respondents ! Counsel for Appellants : Sri K. Madhava Reddy ^ Counsel for Respondents 1 to 4 : Sri P. Ramakrishna Reddy ^ Counsel for Respondent No.6 : Sri P. Harinatha Gupta < Gist:
> Head Note:
? Cases referred:
1) 2009 (2) ALT 512 (AP)
2) 2013 ACJ 1441 (SC)
3) 2009 ACJ 1580 (SC)
4) 2011 ACJ 1441
5) 2008 ACJ 614(SC)
6) 2009 (6) SCC 121
7) 2013 (9) SCC 54
8) 2011 ACJ 1360
9) 2013 ACJ 1593 (AP)
10) 2014 (1) Decisions Today (SC) 122
11) 2011 ACJ 2145 (SC)
12) 1997 ACJ 1148 (SC)
13) 2003 ACJ 534 (SC)
14) 1985 ACJ 75 (SC) THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. Nos.2953 of 2009 and 1846 of 2010
COMMON JUDGMENT:
Aggrieved by the Award in OP No.2492 of 2006 passed by the M.A.C.T-cum-IV Additional Metropolitan Sessions Judge, Hyderabad (for short “the Tribunal”) both claimants as well as APSRTC preferred MACMA Nos.2953 of 2009 and 1846 of 2010 respectively.
2) The factual matrix of the case is thus:
a) Claimants 1 to 4 are the wife and children of the deceased—Basavaraj. On 25.08.2006 at about 7:30am when the deceased was boarding the APSRTC hired bus bearing No.AP 28 V 3557 which was stopped on the road, the driver of the said bus moved suddenly at high speed and in a rash and negligent manner. As a result, the deceased fell down and the front left wheel of the said bus ran over the left leg of the deceased. Immediately, the deceased was admitted in Remedy Hospitals, Kukatpally, Hyderabad and he succumbed to injuries on 24.09.2006 while undergoing treatment. It is averred that the accident was occurred due to rash and negligent driving by the driver of the offending RTC bus. It is pleaded that the deceased was working as Machine Operator in Nuclear Fuel Complex, ECIL and used to get a salary of Rs.15,000/- p.m and due to sudden demise of the deceased, the claimants lost their breadwinner. On these pleas, the claimants filed OP No.2492 of 2006 against respondents 1 and 2, who are the owner and insurer of the offending bus and respondents 3 and 4, who are the authorities of APSRTC and claimed Rs.16,00,000/- as compensation under different heads.
b) First respondent remained ex parte.
c) Second respondent/Insurance Company filed counter and opposed the claim denying all the material averments in the petition and urged to put the claimants in strict proof of the same.
R.2 contended that without any valid permission to hire the vehicle much less to the APSRTC, R.1 hired the bus and so R.2 is not liable to pay the compensation. When the vehicle hired, the driver will be under the control of APSRTC and the insured or the owner will have no control over the driver and the vehicle and so liability should be fastened on R.3 and R.4 alone. R.2 contended that the deceased himself was responsible for the accident either fully or partly. R2 further contended that petitioners should be put to strict proof that the deceased died only due to injuries sustained in accident. Finally, R2 contended that claim is highly excessive and exorbitant.
d) Respondents 3 and 4 filed counter and contended that R.2, who is the insurer of the crime vehicle is liable to pay the compensation. Thus R.3 and R.4 prayed for dismissal of the O.P.
e) During trial, PWs.1 to 4 were examined and Exs.A1 to A10 and X1 and X2 were marked on behalf of claimants. RW.1 was examined and Ex.B.1 was marked on behalf of respondents.
f) A perusal of the award would show that issue No.1 is concerned, the Tribunal relying upon the evidence of PW2—eye witness coupled with Ex.A1—F.I.R, Ex.A.2—alteration memo and Ex.A4—charge sheet, held that the driver of the offending bus was responsible for the accident. Issue No.2 which relates to quantum of compensation is concerned, the Tribunal held that the claimants are entitled to a total compensation of Rs.8,94,500/- with proportionate costs and interest @ 7.5% per annum under different heads as follows:
Loss of dependency Rs. 8,80,000/-
Funeral expenses Rs. 2,000/-
Loss of estate Rs. 2,500/-
Loss of consortium to the 1st petitioner Rs. 10,000/-
Total Rs. 8,94,500/-
g) Sofaras the liability is concerned, the Tribunal relying upon the decision reported in Branch Manager, Oriental Insurance Company Limited, City Branch Office-II, Vijayawada vs. Javvaji Bhaskar Rao and others[1] held that as the offending bus was hired with APSRTC and the driver was under the control of hirer, the ASPRTC alone is liable to pay the compensation. Accordingly, the Tribunal exonerated the respondents 1 and 2 and fastened the liability with respondents 3 and 4.
Hence, MACMA No.2953 of 2009 is filed by the claimants on the ground of inadequacy of compensation and MACMA No.1846 of 2010 is filed by APSRTC challenging the findings of Tribunal fixing fault on bus driver and liability on APSRTC.
3) Heard arguments of Sri P.Ramakrishna Reddy, learned counsel for appellants—claimants in MACMA No.2953 of 2009/ respondents 1 to 4 in MACMA No.1846 of 2010, Sri P.Harinatha Gupta, learned counsel for respondent No.2—Insurance Company in MACMA No.2953 of 2009/ respondent No.6 in MACMA No.1846 of 2010 and Sri K.Madhava Reddy, learned counsel for appellants—APSRTC in MACMA No.1846 of 2010/ respondents 3 and 4 in MACMA No.2953 of 2009.
4) The parties are referred to as arrayed before the Tribunal, for the sake of convenience.
5 a) Criticizing the compensation awarded as too low and inadequate learned counsel for appellants/claimants, firstly argued that the Tribunal while computing the compensation under the head loss of dependency had erred in accepting the monthly salary of the deceased at Rs.10,000/- only despite the fact that the deceased was getting gross monthly salary of Rs.12,181/- under Ex.A7-Service Certificate which was revised to Rs.14,986/- as per Ex.X1 certificate after revision of pay scales by the Central Pay Commission. He thus argued that the Tribunal ought to have accepted Rs. 14,986/- as the gross salary for computation of compensation. In this context he further argued that there are no statutory deductions and therefore entire amount should be taken for computation. He cited the following decisions on the aspect as to what components are liable and not liable for deduction from gross salary.
[2]
1. Vimal Kanwar vs. Kishore Dan
[3]
2. Rahuvir Singh Matolya vs. Hari Singh Malviya
[4]
3. Sunil Sharma vs. Bachitar Singh
[5]
4. National Insurance Co. Ltd. vs. Indira Srivastava
b) Secondly, he argued that though the Tribunal was right in deducting 1/3rd from the gross earnings of the deceased towards his personal expenses, in view of decision in Sarla
[6]
Verma v. Delhi Transport Corporation , 1/4
th has to be
deducted instead of 1/3rd, since the dependents of the deceased are four in number. He admitted that the Tribunal rightly took multiplier ‘11’, which is an appropriate one even as per multiplier table provided in the aforesaid Sarla Varma’s decision (6 Supra).
c) Thirdly, learned counsel argued that the Tribunal granted only Rs.2,000/- towards funeral expenses and Rs. 10,000/- towards loss of consortium, which are meagre ones. He argued that as per the latest decision of the Hon’ble Apex Court
[7]
reported in Rajesh v. Rajbir Singh , claimant No.1 is entitled to Rs. 1,00,000/- towards loss of consortium and all the claimants are entitled to Rs. 25,000/- towards funeral expenses.
d) Fourthly, learned counsel argued that the Tribunal did not grant any compensation for loss of love, care and affection of the deceased towards his children and they deserve compensation in this regard.
e) Fifthly, learned counsel also argued that the Tribunal did not grant any compensation for pain and suffering experienced by the deceased. He argued that deceased survived for one month after accident and underwent treatment and died and during this period he suffered excruciating pain due to fracture of the leg and other associated problems. Though, the compensation claimed is for fatal accident, still the claimants are entitled to compensation for pain and suffering experienced by the deceased. In this regard, he relied upon the decision
[8]
reported in Goutham Bafna v. J.Pramod Kumar Bansal .
Learned counsel, thus prayed to allow the appeal and enhance compensation suitably.
6 a) Learned counsel for APSRTC vehemently argued that the APSRTC is only a hirer of the bus but not the owner and respondent No.1 is the owner of the bus and insured his vehicle with the 2nd respondent/insurance company. He further submitted that as per the contract of lease, the owner of the vehicle should insure the vehicle and the driver of the bus shall be engaged by the owner and as such the driver is not the employee of the Corporation. In view of these facts, he argued that the APSRTC will not attain any liability arising out of the accident and it is the owner and insurer who shall bear the liability. He submitted that the Tribunal of course basing on the decision in Javvaji Bhaskar Rao (1 Supra) held that the APSRTC, who is the hirer is liable to pay compensation. However, in view of the law pronounced by the Full Bench of this Court in its latest judgment in Andhra Pradesh State Road
[9]
Transport Corporation v. B. Kanakaratnabai , he argued, despite the vehicle was hired by APSRTC, the liability of insurance company towards the third parties will not cease. In view of this decision, he submitted, the liability squarely lies on the owner and insurer of the offending vehicle but not on the APSRTC. He, thus, prayed to exonerate the APSRTC from its liability. He submitted pending appeal APSRTC deposited 50% of the compensation amount and the same may be returned to it in case its argument is upheld.
b) Secondly, he argued that no liability can be fastened on the APSRTC for the reason that the accident was occurred due to the sole negligence of the deceased himself as he tried to board the moving bus and fell down.
c) Thirdly, learned counsel argued that compensation awarded is excessive and exorbitant and needs to be scaled down. He submitted that the Tribunal ought to have selected a multiplier of 6.7 instead of ‘11’. He submitted that compensation granted under other heads is also excessive.
He thus prayed to allow the appeal filed by APSRTC.
7 a) Per contra, learned counsel for Insurance Company firstly argued that the Tribunal has rightly fixed the liability on APSRTC in view of the fact that the crime bus was hired by it and the same was under its possession and control and the driver was also working at its behest as on the date of accident. Since the bus was with APSRTC under the contract of lease, the APSRTC can be termed as owner within the meaning of Section 2(30) of Motor Vehicles Act, 1988 (M.V. Act). Therefore, the APSRTC has to bear the liability but not the Insurance Company. He relied upon the decision reported in Purnya Kala Devi vs. State
[10]
of Assam and another on the point that a person in control and possession of the vehicle should be construed as owner and not alone the registered owner. Learned counsel further argued that the Insurance Company will not attain any liability in this case because the registered owner has not paid any additional premium to enable him to hire the insured vehicle to APSRTC.
b) Secondly, learned counsel argued that the compensation awarded by the Tribunal under different heads was just and reasonable and there is no need to enhance the same.
He thus argued to dismiss both the appeals.
8) In the light of the above rival contentions, the points for determination in the above two appeals are:
1. Whether the Tribunal was right in fixing the liability on hirer- APSRTC instead of the owner and insurer of the crime vehicle?
2. Whether the compensation awarded by the Tribunal is just and reasonable or requires any enhancement?
9 ) POINT No.1: The accident, involvement of APSRTC hired bus bearing No.AP 28V 3557 and death of the deceased are all admitted facts. Of course it would appear that the insurance company contended before the Tribunal as if the leg injury sustained by the deceased did not lead to his death and at best it might lead to amputation of the leg and the death was due to cardiac problem suffered by the deceased. In those lines, it cross-examined PW.4 and further suggested that no proper care and treatment was provided in the hospital. PW4 denied aforesaid suggestions and answered that the injuries of the magnitude suffered by the deceased and the consequences led to his death. Apart from his evidence, in Ex.A5-P.M.Report also it was mentioned by the doctor that the cause of death was due to complications consequent to the crush injury to the leg. So basing on the evidence on record, the Tribunal it appears held that the death was due to the injuries suffered in the accident. On perusal of the relevant evidence on record, I am of the view that the Tribunal rightly held that the death was due to the injuries and consequent complications arising out of accident. Therefore, it has now to be seen whether the Tribunal was right in fixing fault on the bus driver and liability on APSRTC.
10) To establish the fault of the driver of the crime bus, the claimants have examined PW2-M.Venkata Ramaiah, an eye witness to the accident. As per Ex.A1-FIR, on the date of accident the deceased started from Ramachandrapuram in APSRTC bus bearing No.AP 10 Z 4024 (bus route No.226) and when the bus reached Miyapur bus stand, it failed and therefore the deceased and other passengers tried to board the crime bus bearing No.AP 28 V 3557. The crime bus driver suddenly moved the bus in a careless manner without observing the deceased and others boarding the bus and thereby the deceased fell down and the front left wheel ran over his left leg. PW2 is the driver of the failed bus. He deposed that he was the driver of the failed bus bearing No.AP 10 Z 4024 which was plied between Patancheruvu and Secunderabad. He deposed that his bus failed near Miyapur bus stop and so he shifted the passengers to different buses near Valentine Hotel. He further deposed that when the deceased was trying to board the crime bus, the driver of the said bus suddenly moved the bus at high speed and in a rash and negligent manner and thereby the deceased fell down from the bus and in that process the left wheel of the bus ran over on his left leg. He affirmed that he witnessed the accident as he was shifting the passengers from the failed bus to the crime bus and that the accident was occurred due to the fault of the driver of the crime bus. In the cross examination also he reiterated the same facts. He denied the suggestion that he was not present at the time of accident and he was deposing falsehood to help the deceased.
11) So far as the veracity of his evidence is concerned, PW2 is cited as LW2 in Ex.A2-charge sheet and shown as eye witness. Therefore, he can be accepted as eye witness to the accident. Further he was none other than the driver of the failed bus. His evidence clearly shows that the offending bus driver suddenly moved the bus in a rash and negligent manner unmindful of the deceased and others boarding the bus. Therefore, the Tribunal rightly held that the driver of the crime bus was responsible for the accident. Though the APSRTC contended that the accident was occurred due to the fault of the deceased himself, it did not place any contra evidence by examining either its driver or other passengers. Therefore, its contention does not hold water.
12) Then coming to the liability aspect, the Tribunal as stated supra relying upon the decision in Javvaji Bhaskar Rao (1 supra) held that the APSRTC, who is the hirer of the bus is liable to pay compensation. The said finding is severely impugned by the APSRTC relying upon the Full Bench judgment of this Court in Andhra Pradesh State Road Transport Corporation v. B. Kanakaratnam bai (9 Supra). Full Bench was answering the reference made by the Division Bench to the effect that whether the claims arising out of the accident involving the insured buses hired by the APSRTC should be borne by the owner of the vehicle, insurance company, APSRTC or by some of them or all of them. The insurance company inter alia contended that once additional premium is not collected under IMT 44 by the insurance company enabling the owner to hire the insured vehicle, the insurance company would not be liable even in respect of the third party claims. Whereas APSRTC relying upon the Apex Court’s decision in U.P.State Road Transport
[11]
Corporation v. Kulsum argued that the insurance company would be exclusively liable to pay compensation even in cases of insured vehicles hired by APSRTC. The Full Bench referred various decisions including the decisions of the Supreme Court in Rajasthan State Road Transport Corporation vs. Kailash
[12] [13]
Nath Kothari , Rikhi Ram vs. Sukhrania and Kulsum’s case (11supra) and also Javvaji Bhaskar’s case (1 supra) and ultimately held thus:
(Para No.88) “On principle, it is not open to the insurance companies to absolve themselves of liability towards passengers/third party risks on the short ground that the insured vehicle has been given on hire without following the prescribed procedure. This Court in Madineni Kondaiah, (1986 ACJ 1 (AP)), has already held that even transfer of ownership of an insured vehicle without following the due procedure would not absolve the insurance company of liability towards third party risks. Mere transfer of possession, through hire of the vehicle, cannot stand on a worse footing or exempt the insurance companies from liability in this regard.”
xxxxxxx (Para No.90) “On the above analysis, we hold that mere hiring of insured buses by the owners to APSRTC would not in any manner limit the liability and accountability of the insurance companies, be it under the Act of 1988 or the Act of 1939 to honour passengers/third party risks covered by the insurance policies issued by them in favour of the owners.
Notwithstanding the hiring of insured buses by the owners to APSRTC, the insurance companies shall be solely and exclusively liable for payment of the compensation arising out of such passengers/third party claims unless any of the grounds in section 149 (2) of the Act 1988/section 96(2) of the Act of 1939 are made out. We, therefore, affirm the view taken by the Full Bench of this Court in Maddineni Kondaiah, 1986 ACJ 1 (AP), which was approved and upheld by the Supreme Court in G.Govindan, 1999 ACJ 781 (SC), and applied thereafter in Rikhi Ram, 2003 ACJ 534 (SC).”
a) Needless to say that the above Full Bench decision squarely applies to the facts of the instant case on hand. Admittedly, the 1st respondent is the owner of the vehicle and the 2nd respondent is the insurer. The APSRTC was the hirer of the bus as on the date of accident. In this case, the insurance company has not brought on record that Ex.B1-policy prohibits the owner from leasing out the bus to third parties. When that is the case, the owner was well within his right to hire the bus to APSRTC. Ex.B1 clearly manifests that liability of third parties is covenanted by insurance company. As such in view of the Full Bench decision and also in view of the facts that the policy was in force by the date of accident covering the risk of third parties and hiring is not expressly barred, the insurance company cannot absolve its liability on the mere pretext that the bus was under the hire of APSRTC by the date of accident and it was in its possession.
b) I have gone through Purnya Kala Devi’s case (10 Supra) cited by the Insurance Company. It must be said that the said decision will not come to the aid of the Insurance Company.
The facts of the said care are that one Md. Abdul Salam was the registered owner of a bus and it was requisitioned by the State of Assam on some Government duty on 14.02.1993. Whileso on 16.02.1993 at about 10:30 am, when the said vehicle was taken out of police station campus, the driver on the way dashed a cyclist who died ultimately. The vehicle was not covered with any insurance policy. The LRs of the deceased filed claim petition against both the registered owner and State of Assam. The registered owner contended that since the vehicle at the time of accident was under the requisition of the State Government, it had to pay compensation. The State took a converse plea that it only requisitioned the vehicle and it was not the owner under the provisions of the Assam Requisition and Control of Vehicles Act, 1968 (for short ‘Assam Act’) and in fact it released the vehicle even before the accident. The lower Tribunal directed the registered owner to pay compensation. On appeal by the claimants, the High Court of Gauhati enhanced the compensation but held that State Government was not liable as it was not the owner. On appeal, Hon’ble Apex Court by referring Section 2(30) of the M.V. Act which defined the term “owner” held that since the vehicle was not released by the State Government by serving notice in writing on the owner as per Section 5(1) of the Assam Act, the State can be squarely covered under the definition of owner as contained in Section 2(30) of the M.V. Act. Ultimately, Apex Court fastened the liability on the State of Assam.
c) It may be noted that when the ratio of the above decision is applied to the instant case, the APSRTC who was the hirer at the time of accident may at best be regarded as owner of the vehicle. However by that count alone, the liability of insurance company will not be ceased, since it took the risk of third parties through Ex.B.1—policy. The Insurance Company shall indemnify the liability of both the registered owner i.e, R.1 in the O.P and also the deemed owner i.e, APSRTC (hirer) / R.3 and R.4 in the O.P. This point is answered accordingly.
13) POINT No.2: As stated supra, the Tribunal awarded Rs.8,94,500/- under different heads, which was impugned by the claimants as inadequate in view of the change in relevant law.
14) The first attack by the claimants is that the gross monthly salary of Rs.14,986/- as depicted in Ex.X1 should be taken for computation in stead of Ex.A7. In this regard, a perusal of the evidence of P.W.3—the Administrative Officer in N.F.C., would show that as per Ex.A7-salary certificate, gross salary of the deceased was Rs.12,181/-. However, a pay revision to the Central Government Employees was effected from 01.01.2006, as per which the gross monthly salary of the deceased was Rs.14,986/- vide Ex.X1. Relying on Ex.X1, it is contended that the Tribunal ought to have taken Ex.X1 for computation. It should be noted that in the cross examination, PW3 admitted that tax deductions are not noted in Ex.A7. Probably seeing the evidence of P.W.3, the Tribunal felt that no statutory deductions like professional tax, income tax etc., were shown in Ex.A7 and Ex.X1. Therefore, the Tribunal felt the necessity of deducting certain notional amount towards statutory deductions and arrived at the net monthly earnings of the deceased atRs.10,000/-. On perusal of Exs.A7 and X1, it is noticed that no deductions much less the statutory deductions like income tax etc., were shown in the two salary certificates. Therefore, in my considered view, the Tribunal cannot be found fault for deducting a reasonable amount towards statutory deductions. In this context, I perused the decisions referred by the learned counsel for the claimants.
a) I n Rahuvir Singh Matolya v. Hari Singh Malviya (3 supra), it was held that the amounts received under Provident Fund, Pension and Insurance are not liable to be deducted from the salary. There is no dispute with this principle because the Tribunal has not deducted any of the aforesaid amounts from the salary.
b) In Sunil Sharma v. Bachitar Singh (4 supra) it was held that the Dearness Allowance and House Rent Allowance should be included in the salary for determining gross salary of the deceased. There is no dispute with regard to this principle also since the Tribunal has not excluded Dearness Allowance and House Rent Allowance from the gross salary of the deceased.
c) In National Insurance Co. Ltd. vs. Indira Srivastava (5 Supra) it was held that H.R.A., C.C.A and medical allowance should be taken into consideration while calculating the income of the deceased. In the instant case also the said components were not excluded by the Tribunal. Exs.A7 and X1 do not show any medical allowance.
d) In National Insurance Co. Ltd. vs. Indira Srivastava (5 supra) it was held that all the perks except those which were only for the benefit of the deceased himself should be included and it was further held that statutory amount of tax payable there upon must be deducted. In our case, the Tribunal did the same thing.
1 5 ) At the outset it must be sated that the Tribunal only deducted a notional amount towards statutory deductions like income tax and professional tax but not the other items as laid down in the aforesaid decisions. So, the only aspect to be considered at this juncture is whether the the notional amount deducted towards taxes was correct or excessive one. When the revised salary of Rs.14,986/- is taken into consideration the Tribunal deducted Rs.4986/- towards statutory deductions and taken Rs.10,000/- as net salary of the deceased. In my view the said deduction appears to be a little high side. Hence, the net salary of the deceased is taken as Rs.10,500/- after deducting monthly statutory deductions. The annual income of the deceased comes to Rs.1,26,000/-. From this, 1/4th is deducted towards personal expenses of the deceased following Sarla Verma’s case (6 Supra), as the number of dependents are four. The net income comes to Rs.94,500/-. By multiplying the said amount with multiplier ‘11’, we will arrive at Rs.10,39,500/-. The said amount is awarded as compensation for loss of dependency. Then coming to the funeral expenses and loss of consortium, it must be said that the Tribunal has not granted adequate amounts. So considering the facts and circumstances of the case, the funeral expenses are enhanced to Rs.10,000/- and loss of consortium is enhanced to Rs.20,000/-. So also an amount of Rs.10,000/- is awarded towards loss of love, care and affection.
1 6 ) Then the claimants sought for compensation of Rs.25,000/- under the head pain and suffering on the plea that the deceased survived about one month after accident and fought with death and experienced pain and agony due to the injuries suffered by him but the Tribunal did not grant any compensation. He argued that even in fatal accident claims, the claimants are entitled to compensation for pain and suffering experienced by the deceased if he survived for some period and experienced the pain and suffering. He relied upon the decision o f Goutham Bafna v. J.Pramod Kumar Bansal (8 Supra). Respondents opposed the claim on the ground that the LRs are not entitled to compensation for pain and suffering experienced by the deceased.
a) It may be noted that generally in fatal accident cases compensation is not being awarded to the LRs of the deceased for the pain and suffering experienced by the deceased following the principle actio personalis moritur cum persona (the cause of action ceases with the death of deceased). However, in the case of Goutham Bafna v. J.Pramod Kumar Bansal(8 Supra), High Court of Madras basing on Apex Court’s decision reported in N.Sivammal and others vs. Managing Director,
[14]
Pandian Roadways Corporation and another admitted compensation under the head pain and suffering. I n N. Sivammal’s case (14 Supra) the facts were that one Muthukrishnan, a process server in District Court at Madurai met with accident when he was hit by a passenger bus belonging to Pandian Roadways Corporation. He was admitted in the hospital and died 19 days after the accident. His widow and children filed claim petition, the Tribunal awarded compensation and Pandian Roadways Corporation preferred appeal before the High Court of Madras. High Court, it appears reduced certain items of compensation, one of which was the award of Rs.5,000/- under the head mental agony suffered by the claimants, as a result of death of the deceased. The claimants then preferred appeal before Hon’ble Apex Court. Sofaras disallowing compensation under the head mental agony by High Court, the Apex Court observed as follows:
“4. Thereafter, the High Court proceeded meticulously to examine every item of compensation included in the award. The High Court held that award of 5000/-under the head mental agony suffered by the claimants as a result of the death of the deceased cannot legally be sustained. This is only the different way of looking at the same thing which is legally permissible. Muthukrishnan lived for 19 days since the accident and he was throughout under a shadow of death. He had suffered severe injuries. He must have suffered continuous pain and compensation was admissible for pain and suffering, suffered by the deceased. Therefore, the amount of Rs. 5000/- which the High Court held inadmissible, is legitimately admissible under another head and therefore by charging the head we restore the amount of Rs. 5000/- awarded by the Tribunal.”
Thus it appears that Hon’ble Apex Court considering the fact that the deceased survived for considerable period after the accident and underwent the trauma, allowed the compensation.
17) In the instant case also, the deceased was hospitalized after accident and survived for nearly one month and struggled with death. It was already held that the death of the deceased could be directly attributable to the injuries sustained by him in the accident. In these circumstances, following the decision of Hon’ble Apex Court, a sum of Rs.10,000/- is awarded as compensation under the head pain and suffering.
18) In view of the above findings, the claimants are entitled to total compensation of Rs.10,92,000/- under the following heads:
Loss of dependency Rs.10,39,500/- Funeral expenses Rs. 10,000/- Loss of Estate Rs. 2,500/- Loss of consortium Rs. 20,000/- Love, care and affection Rs. 10,000/-
Pain and suffering Rs. 10,000/-
TOTAL Rs.10,92,000/-
So, compensation is enhanced by Rs.1,97,500/- (Rs.10,92,000/- minus Rs.8,94,500/-).
19) In the result, in view of the above discussion, it is ordered as follows:
1. MACMA No.2953 of 2009 filed by the claimants is partly allowed and compensation is enhanced by Rs.1,97,500/- with proportionate costs and interest at 7.5% p.a., from the date of petition till the date of realization. Respondent No.1 in the O.P who is the registered owner and Respondent Nos.3 and 4 in the O.P who are the deemed owner (hirer) and R.2 in the O.P/Insurance Company of the offending bus are jointly and severally liable to pay the entire compensation amount and they shall deposit the compensation amount within two months from the date of this judgment, failing which execution can be taken out against them. Since policy was in force at the time of accident, the 2nd respondent in the O.P/Insurance Company shall indemnify the liability of Respondent Nos.1, 3 and 4 in the O.P.
2. MACMA No.1846 of 2010 filed by the APSRTC is partly allowed and the liability of APSRTC, the deemed owner is directed to be indemnified by 2nd respondent in the O.P/Insurance Company. Pending appeal if APSRTC paid any compensation, it can recover the same from the Insurance Company. In such a case, the Insurance Company shall be liable to pay the balance amount of compensation to the claimants.
3. No order as to costs in both the appeals.
As a sequel, miscellaneous applications if any pending in these appeals shall stand closed.
U. DURGA PRASAD RAO, J Date: 22.04.2014
Note: L.R Copy to be marked: YES / NO
pab/scs
[1]
2009 (2) ALT 512 (AP)
[2]
2013 ACJ 1441 (SC)
[3]
2009 ACJ 1580 (SC)
[4] 2011 ACJ 1441
[5] 2008 ACJ 614(SC)
[6] 2009 (6) SCC 121
[7] 2013 (9) SCC 54
[8] 2011 ACJ 1360
[9] 2013 ACJ 1593 (AP)
[10] 2014 (1) Decisions Today (SC) 122
[11] 2011 ACJ 2145 (SC)
[12] 1997 ACJ 1148 (SC)
[13] 2003 ACJ 534 (SC)
[14] 1985 ACJ 75 (SC)