* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.793 of 2009
%02.06.2014
Between:
N. Vijayan and others. Appellants AND The State of A.P, Rep by its Secretary to Home, Hyd and others ….
Respondents ! Counsel for Appellant : Sri P. Ramakrishna Reddy ^ Counsel for Respondents : G.P. for Arbitration < Gist:
> Head Note:
? Cases referred:
1) 2012 (4) ALD 609
2) 2011 ACJ 2403 AP
3) 2011 ACJ 1702 AP
4) 2013 ACJ 2498 MP
5) (2009) 6 SCC 121
6) 2014 (1) ALT 512 (D.B.)
7) (2013) 9 Supreme Court Cases 54 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. No.793 of 2009
JUDGMENT:
Challenging the award dated 09.03.2006 in O.P.No.1820 of 2003 passed by the Chairman, M.A.C.T-cum-II Additional Metropolitan Sessions Judge—XVI Additional Chief Judge, Hyderabad (for short “the Tribunal”), the claimants preferred the instant appeal.
2) The factual matrix of the case is thus:
a) The claimants 1 and 2 are the parents and claimants 3 and 4 are the sisters of the deceased—Shiva Nanda. Their case is that on 21.01.2003 at about 7 AM, when the deceased was proceeding along with his friends—Saibabu and Swamy on LML Vespa bearing No.AP 28 2006 slowly on the extreme left side of the road and when they reached near Sacred Heart Church, South Lalaguda, Secunderabad, a police jeep bearing No.AP 9P 4079 being driven by its driver at high speed and in a rash and negligent manner and dashed the Vespa of the deceased. In the resultant accident, the deceased and his friends fell down and received injuries. Sofaras deceased is concerned, he sustained fracture of head and the blood oozed from ears and nose and he became unconscious and went to coma. Immediately he was shifted to CDR Hospitals, Secunderabad where the doctors conducted operation to his brain and at last deceased succumbed to injuries. It is averred that the accident was occurred only due to the rash and negligent driving by the driver of the offending jeep. On these pleas, the claimants filed O.P.No.1820 of 2003 against respondents 1 to 3, who are owners of the offending police jeep and claimed Rs.6,00,000/- as compensation under different heads mentioned in the O.P.
b) Respondent Nos.1 and 3 did not choose to file counter.
c) Respondent No.2 filed counter and opposed the material averments made in the O.P and urged to put the claimants in strict proof of the same. R.2 contended that the accident was occurred due to the fault of the deceased himself. R2 specifically denied that the claimants are not depending upon the earnings of the deceased. R2 contended that compensation is highly excessive and untenable and thus prayed to dismiss the appeal.
d) During trial P.Ws.1 to 3 were examined and Exs.A1 to A11 were marked on behalf of claimants. RW1 was examined and Exs.B1—insurance policy was exhibited on behalf of respondents.
e) A perusal of the Award would show that Tribunal having relied upon the oral evidence of PW.2–eye witness coupled with Ex.A.1–F.I.R and Ex.A.2–charge sheet held that the accident was occurred due to the rash and negligent driving by the driver of the offending police jeep.
f) Issue No.2 which relates to quantum of compensation, the Tribunal awarded compensation of Rs.2,26,000/- together with interest at 7.5% p.a from the date of O.P till the date of realization.
Hence, the appeal by claimants on the ground of inadequacy of compensation.
3) Heard Sri P.Ramakrishna Reddy, learned counsel for appellants/ claimants and Smt.S.Rekha Prasad, learned Government Pleader for Arbitration for Respondents (‘G.P’).
4 a) Criticizing the compensation as low and unjust, learned counsel for appellants firstly argued that the Tribunal, despite the cogent evidence in respect of the part time employment and earnings of the deceased, erred in holding that the deceased was a non-earning member and taking his notional income as Rs.15,000/- p.a. Learned counsel would submit that the deceased was a B.Com Graduate and pursuing Web Designing course in NIIT, Hyderabad and further he was working as a part- time D.T.P Operator in G.S. Graphics, Himayatnagar, Hyderabad and earning Rs.4,000/- p.m and so he had bright future but for the ill-fate. Considering his educational qualifications and future prospects, the Tribunal ought to have fixed his monthly income as atleast Rs.10,000/- to Rs.12,000/-. In this regard, he relied upon the following decisions:
i) Managing Director, APSRTC, Musheerabad X Roads, Hyderabad and another vs. C. Rangaswamy
[1]
and another
ii) Setty Chandra Sekhar and another vs. Mohd.
[2]
Ghouse and another
iii) B. Ramulamma and others vs. Venkatesh Bus
[3]
Union and another
iv) Om Prakash Gupta and others vs. Wajeer Ahmed
[4]
Ali Nayak Wadi and another Learned counsel submitted that in all the aforesaid decisions, the notional income of the deceased was fixed in commensuration with the job prospects and so the same may be adopted in this case also.
b) Secondly, learned counsel argued that the Tribunal while computing loss of earnings, erred in accepting ‘17’ as multiplier.
He submitted that as per the decision reported in Sarla Verma
[5]
vs. Delhi Transport Corporation , the appropriate multiplier for the deceased who died at the age of 22 years is ‘18’ but not ‘17’. He prayed to adopt the said multiplier and reassess the compensation. Learned counsel while relying on Sarla Verma’s case (5 Supra) fairly conceded that the Tribunal deducted 1/3rd from the gross earnings of the deceased but as per Sarla Verma’s case (5 Supra), 50% of the gross earnings have to be deducted since the deceased was a Bachelor.
c) Thirdly, learned counsel submitted that for selection of multiplier, the age of deceased has to be taken into consideration but not the age of his parents, in view of the latest judgment of our High Court reported in N.Surender Rao and others vs. B.
[6]
Swamy and another . He of course admitted that the Tribunal has taken the age of deceased into consideration for selection of multiplier.
d) Finally, learned counsel would argue that the Tribunal erred in not granting compensation under the head loss of estate and it further erred in granting a meagre amount of Rs.5,000/- towards transportation, funeral expenses and damage to clothing. Citing the decision reported in Rajesh and others vs. Rajbir Singh
[7]
and others learned counsel would argue that the Tribunal ought to have granted atleast Rs.25,000/- towards funeral expenses.
He thus prayed to revise the compensation by allowing the appeal.
5 a) Per contra, while supporting the award, learned G.P firstly argued that the deceased was a B.Com Graduate and still pursuing the computer courses and hence, the Tribunal rightly rejected his alleged part time employment as a DTP Operator under PW.3 and rightly considered that the deceased was only a non-earning member and fixed his notional income as Rs.15,000/- p.a. Learned G.P submitted that the citations relied upon by the appellants for fixing the notional income of the deceased will not help them as in those cases, the deceased were the Engineering students pursuing the professional courses and considering their future prospects, their notional incomes were accordingly fixed in those cases whereas, the deceased was neither an Engineering student nor qualified in any other professional course. Therefore, the computation made by the Tribunal was perfectly correct and no need to interfere.
b ) Learned G.P further argued that the compensation under other heads was also reasonable and the compensation as a whole was just and reasonable.
She thus prayed to dismiss the appeal.
6 ) In the light of above rival arguments, the point for determination in this appeal is:
“Whether the compensation awarded by the Tribunal is just and reasonable and needs any enhancement?”
7) POINT: The accident, involvement of the Jeep bearing No. AP 9 P 4079 of respondents and LML Vespa bearing No.AP 28 2006 and the death of deceased are all admitted facts. The Tribunal’s finding regarding the fault of the Jeep driver is not challenged by the respondents by preferring any appeal. So in this appeal, the only point for determination is whether the compensation awarded by the Tribunal is just and reasonable or not. The Tribunal granted a total compensation of Rs.2,26,000/- under different heads as follows:
Loss of earnings Rs.1,70,000/- Medical expenses Rs. 51,000/-
Transportation, funeral expenses and damage to clothing Rs. 5,000/-
Total Rs.2,26,000/-
8) As can be seen, the first attack of the appellants is that the computation of loss of earnings is too low, since the Tribunal failed to fix an appropriate amount as notional income of the deceased. A perusal of the oral and documentary evidence in this regard would show that as per Ex.A.9, the deceased passed B.Com with First Division in 2002-03. Then Ex.A.10—certificate issued by the NIIT would show that the deceased was pursuing Web Designing Course in the said institute and passed some semesters. The Tribunal having regard to the fact that the deceased was still pursuing computer courses, refused to accept his part time employment as DTP Operator as deposed by PW.3 and to this extent, the Tribunal was right. Then the Tribunal has taken his notional income as Rs.15,000/- p.a which needs a re- thinking in my view. The appellants claimed that the notional income of the deceased should be fixed following the decisions cited by them. On perusal of the decisions cited, it must be said that they will not help the cause of the appellants because in all those cases, as rightly argued by G.P, the deceased were pursuing Professional Engineering courses and considering their job potentiality, their notional incomes were fixed in those cases. In the instant case, the deceased was a B.Com Graduate and ofcourse pursuing some computer courses. It must be said that all academic courses will not generate equal job opportunity and earning potentiality. Therefore, we cannot equate all academic courses sofaras earning potentiality is concerned. This is the stark reality. Having regard to these facts, the notional income of the deceased has to be fixed. As already stated, the Tribunal took his notional income as Rs.15,000/- p.a which, it must be said is not in commensuration with his educational qualifications. In my view, the deceased with his present qualification would earn no less than Rs.3,000/- p.m as he was a young boy of 22 years. Another Rs.1,000/- can be added towards future prospects. So the present income of the deceased can be safely taken as Rs.4,000/- p.m. The annual income of the deceased which will serve the purpose as multiplicand comes to Rs.48,000/-
(Rs.4,000/- x 12). As per Sarla Verma’s case (5 Supra), 50% has to be deducted towards personal expenditure, as the deceased was admittedly a Bachelor. Now, a suitable multiplier has to be selected. In N.Surender Rao’s case (6 supra), it was observed that the age of the bachelor/ spinster has to be taken into consideration for selection of multiplier, hence the same is followed. As per Ex.A.6, the date of birth of the deceased was 10.10.1980, so by the time of his death i.e, 24.01.2003, he was 22 years old. For his age, ‘18’ was fixed as multiplier in the table provided in Sarla Verma’s case (5 supra). Thus, multiplying the net annual income of the deceased with ‘18’, we will arrive at Rs.4,32,000/- (Rs.24,000/- x 18). The said amount is awarded as compensation towards loss of earnings.
9 ) Then following the Rajesh’s case (7 supra), funeral expenses and other incidental expenditures are enhanced to Rs.25,000/-. Further the claimants are awarded Rs.10,000/- towards loss of estate which was not granted by the Tribunal. Thus the total compensation payable to the claimants under different heads can be detailed as below:
Loss of earnings Rs.4,32,000/-
Loss of estate Rs. 10,000/-
Transportation, funeral expenses and damage to clothing Rs. 25,000/- Medical expenses Rs. 51,000/-
Total Rs.5,18,000/-
So the compensation is enhanced by Rs.2,92,000/- (Rs.5,18,000/- minus Rs.2,26,000/-).
10) In the result, this appeal is partly allowed and ordered as follows:
a) The compensation is enhanced by Rs.2,92,000/- with proportionate costs. The enhanced compensation amount shall carry interest at 7.5% p.a from the date of O.P till the date of realization.
b) The respondents are directed to deposit the enhanced compensation amount within one month from the date of this judgment, failing which execution can be taken out against them.
c) No order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U.DURGA PRASAD RAO, J Date: 02.06.2014
Note: L.R. Copy to be marked: YES/NO
scs / murthy
[1] 2012 (4) ALD 609
[2] 2011 ACJ 2403 AP
[3] 2011 ACJ 1702 AP
[4] 2013 ACJ 2498 MP
[5] (2009) 6 SCC 121
[6] 2014 (1) ALT 512 (D.B.)
[7] (2013) 9 Supreme Court Cases 54