* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.2109 of 2009
%14.07.2014
Between:
Rasala Andalu and others. ... Appellants AND The Managing Director, APSRTC, Musheerabad, Hyd.
and another. ….
Respondents ! Counsel for Appellants : Sri T. Viswarupa Chary ^ Counsel for Respondents : Sri K. Madhava Reddy < Gist:
> Head Note:
? Cases referred:
1) 2011(6) ALD 75 (SC)
2) 2013 ACJ 1403 (SC)
3) 2006 (1) ACC 474 (DB)
4) AIR 1998 SC 3191
5) AIR 2002 SC 2607 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO M.A.C.M.A.No.2109 of 2009
JUDGMENT:
Aggrieved by the Award dated 03.01.2005 in O.P.No.2015 of 2001 passed by the Chairman, MACT-cum-Additional Metropolitan Sessions Judge for trial of Communal Offence Cases, Red Hills, Hyderabad (for short ‘the Tribunal’), the claimants preferred the instant MACMA.
2) The facts in nutshell are thus:
a) The 1st claimant is wife, 2nd claimant is son, 3rd claimant is daughter and 4th claimant is mother of deceased—Rasala Nagabhushanam. Their case is that on 15.07.1995 when the deceased along with his friend—K.Gangi Reddy was going on his scooter bearing No.AAW 4719 from Kulsumpura to Gudimalkapur and when he reached near Pochamma Temple, Laxminagar X roads, a RTC bus bearing No.AP 9 Z 4250 being driven by its driver at high speed and in a rash and negligent manner dashed the scooter from behind and caused the accident. Thereby, the deceased fell down on the road and left rear wheels of the bus ran over the deceased and he died on the spot. It is averred that the accident was occurred due to fault of bus driver. On these pleas, the claimants filed O.P. No.2015 of 2001 against respondents 1 and 2, who are the Managing Director and Depot Manager of APSRTC and claimed Rs.2,50,000/-as compensation under different heads mentioned in the O.P.
b) Respondents opposed the claim denying all the petition averments. They contended that claimants were paid a sum of Rs.50,000/- in full and final settlement of all the claims and the claimants have acknowledged the same and hence, petition is not maintainable. They further contended there is no negligence on the part of driver of the bus and in fact the deceased while overtaking the bus from its lift side, lost control and his scooter skidded and he fell down and came into contact with left side rear wheel of the bus. They also contended that claim is highly excessive and exorbitant and sought for dismissal of OP.
c) During trial, PW1 was examined and Exs.A1 to A6 were marked on behalf of claimants. RWs.1 and 2 were examined and Exs.B1 to B6 were marked on behalf of respondents.
d) A perusal of the award would show that Tribunal having regard to the oral and documentary evidence held that bus driver was responsible for the accident. Sofaras quantum of compensation is concerned, the Tribunal granted Rs.1,92,000/- and after deducting the amount of Rs.50,000/- already paid, awarded Rs.1,42,000/- as compensation with interest @ 9% per annum as follows:
Loss of dependency Rs.1,60,000-00 Loss of estate Rs. 15,000-00 Loss of consortium Rs. 15,000-00 Funeral expenses Rs. 2,000-00 Total Rs.1,92,000-00 (Rs.1,92,000 minus Rs.50,000/-) Hence, the appeal by the claimants.
3) Heard arguments of Sri T.Viswarupa Chary, learned counsel for appellants and Sri K.Madhava Reddy, learned counsel for respondents/ APSRTC.
4) Learned counsel for appellants criticized the award mainly on the two grounds.
a) Firstly, criticizing that the compensation was too low and inadequate, he argued that the deceased was a young person aged 35 years and he was earning Rs.3,500/- p.m by doing sheep business but the Tribunal, without there being any basis, accepted his annual income only at Rs.15,000/- which is unjust. By this act, he argued, compensation was drastically reduced. He relied upon the decision of Apex Court reported in Ramachandrapppa vs. Manager, Royal Sundaram Aliance
[1]
Insurance Co. Ltd. , and contended that in that case, the Apex Court fixed the monthly earnings of a coolie aged 35 years at Rs.4,500/- on the observation that there was no evidence contrary to his claim. He submitted that in the instant case also, no rebuttal evidence was placed by the respondents and so the monthly income of the deceased can be safely accepted as Rs.3,500/-. He further submitted that to the aforesaid amount, some addition can be made towards future prospects as laid down by the Apex Court in Rajesh and others vs. Rajbir Singh
[2]
and others . He also argued that following Rajesh’s case (2 supra), loss of consortium and funeral expenses may be awarded at Rs.1,00,000/- and Rs.25,000/- respectively. Thus he prayed for enhancement of compensation in the light of above submission. He submitted that the court can grant more amount than prayed while computing just compensation.
b) Secondly, he argued that the Tribunal erred in deducting a sum of Rs.50,000/- from the compensation, which was paid as exgratia by the APSRTC to the claimants. He argued that payment of exgratia will not constitute compensation under M.V. Act and hence same cannot be deducted. In this regard, he relied upon the decision reported in Andhra Pradesh State Road Transport Corporation vs. Bhupender Sing Alak and
[3]
another 5 a) Per contra, while supporting the award, learned counsel for respondents/APSRTC firstly argued that as the claim was filed under Section 163-A of M.V. Act, the Tribunal in view of lack of evidence on the income of the deceased, rightly accepted his annual income as Rs.15,000/- in terms of Second Schedule of M.V. Act and computed the compensation and therefore, the same cannot be impugned. He further submitted that the compensation under other heads like loss of estate, funeral expenses and loss of consortium etc., was also awarded in terms of Second Schedule of M.V. Act and in fact the Tribunal awarded higher amounts under those heads and as such, there is no need to further enhance them.
b) Secondly, he argued that the Corporation paid Rs.50,000/- to the claimants not purely as an exgratia but under an Ex.B.2— agreement towards full discharge of their claim if any. Hence the said amount partakes compensation and liable for deduction from the compensation awarded and Tribunal rightly did so. He submitted that the decision cited in this regard has no application. He thus prayed for dismissal of the appeal.
6) In the light of above rival arguments, the points that arise for determination in this appeal are:
1) Whether the compensation awarded by the Tribunal was just and reasonable or needs any enhancement?
2) Whether the amount of Rs.50,000/- paid by the APSRTC to claimants as exgratia is liable for deduction from the compensation?
7 ) POINT NO.1: The first argument of the appellants is with regard to the compensation. As already stated supra the Tribunal awarded Rs.1,92,000/- under different heads. Loss of dependency is concerned, the Tribunal on the observation that though the petitioners claimed that the deceased was earning Rs.3,500/- p.m. out of sheep business but did not produce any cogent evidence, took his annual income as Rs.15,000/- basing on the Second Schedule of the M.V Act. This observation was criticized in this appeal and it was urged that his income should have been taken atleast at Rs.3,000/- p.m. In this context, it must be noted that the claim is one under Section 163-A of M.V Act. The Tribunal found that there was no cogent evidence and hence took his annual income as Rs.15,000/- p.a. as provided in the Second Schedule of the M.V Act. In my view, the notional income of Rs.15,000/- p.a as provided in the Second Schedule will apply only to those persons who had no income prior to the accident. In the instant case, the deceased was aged 35 years and in Ex.A.2-inquest report his occupation was mentioned as business. Therefore though there is no clear-cut evidence regarding his actual income, there is evidence to support the plea of the claimants that the deceased was doing sheep business. As such, the deceased cannot be called as a non- earning person so as to bring within the mischief of clause-6 of second schedule. Therefore it is not justifiable to confine his notional income to Rs.15,000/-, rather it should be objectively assessed. Having regard to his age and occupation, the monthly income of the deceased can be fixed at Rs.1500/- and a sum of Rs.500/- can be added towards future prospects. In this regard, the cited decision in Ramachandrappa's case (1 supra) is not followed because it was a claim arising under sec 166 of M.V Act wherein the notional income of the petitioner was fixed at Rs.4500/-. In the instant case, the claim is one under Sec.163-A of M.V Act and hence maximum income can be ta k e n upto Rs.40,000/- only. The annual income of the deceased comes to Rs.24,000/-. Deducting 1/3rd and multiplying the balance with multiplier '16', we will arrive at the loss of dependency at Rs.2,56,000/-(24,000 x 2/3rd x 16). Sofaras the argument seeking increase of compensation for funeral expenses and loss of consortium as per Rajesh's case (2 supra) is concerned, the same is not approved because of the fixed amounts provided under the Second Schedule appended to Sec.163-A of MV Act. In fact the Tribunal already provided higher amounts under those heads. Thus the total compensation payable to the claimants under different heads is as follows:
Loss of dependency Rs.2,56,000/-
Loss of estate Rs. 15,000/-
Loss of consortium Rs. 15,000/-
Funeral expenses Rs. 2,000/-
Total Rs.2,88,000/-
This point is answered accordingly.
8) POINT No.2: This point is concerned, the argument is that Rs.50,000/- paid by APSRTC as exgratia is not liable for deduction since in strict sense it will not come under compensation as per MV Act. In this regard, a perusal of evidence of RW1—Depot Manager coupled with Exs.B2 to B5 would show that upon the death of deceased, the Corporation paid Rs.50,000/- towards what they call as full and final settlement of claim of the petitioners and obtained Ex.B2— discharge voucher. The amount was paid by way of cheque drawn on State Bank of India, Caravan Branch, Hyderabad and the same was credited to the S.B. Account of first claimant vide Ex.B5—letter of Branch Manager of the said Bank. Then Ex.B2 styled as discharge voucher dated 26.10.1995 reads that APSRTC paid Rs.50,000/- towards full satisfaction of the claim arising out of the death of R.Nagabhushanam due to accident. The Tribunal accepted the evidence of APSRTC to the extent that the amount of Rs.50,000/- was paid to the claimants. However, the Tribunal did not countenance the argument that it was in full discharge of the claim. The Tribunal held that the Corporation by contract cannot debar the petitioners to exercise their right to file claim petition and such a contract is void under
Section 23 of Contract Act as opposed to public policy. The Tribunal further held though the contract is void, the amount paid under the same can nevertheless be deducted from the compensation assessed by it.
9) It may be noted that as against the finding of the Tribunal that contract under Ex.B2 is void being opposed to public policy, the APSRTC has not preferred any appeal. Hence, the said finding assumed finality and need not be discussed in this appeal. Thus, the only point left for discussion is whether Rs.50,000/- paid by the Corporation can be given set off. In my considered view, the said amount can be set off against the compensation awarded, for the main reason that the claimants being the L.Rs. of the deceased received the said pecuniary benefit from the tortfeasors on account of death of the deceased in a motor vehicle accident. It is needless to emphasize that the pecuniary benefit was thus derived by them directly on account of the accidental death of the deceased. But for the death of the deceased caused by its bus, APSRTC would not have conferred the said pecuniary benefit on the LRs. Hence, the said amount can be directly correlated to the accidental death. Honourable Apex Court in a number of decisions reiterated that when the LRs. of the deceased derived a pecuniary benefit directly due to accidental death of the deceased in a motor vehicle accident, the same can be deducted from the compensation awarded. It however held, if the pecuniary benefit has no nexus with the accidental death and it would have accrued to the LRs. even other wise, then such a pecuniary benefit cannot be deducted from the compensation awarded.
In Mrs.Helen C.Rebello and Ors. v. Maharashtra State
[4]
Road Transport Corporation and another Apex Court dealt with the point as to whether LIC money of the deceased received by his LRs. was to be deducted from compensation receivable under M.V Act or not. In that context it held thus:
“ xx xx Thus, under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death…..” (Para—36) “ xx xx The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against tortfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act, he receives without any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual.” (Para—39) I n United India Insurance Co. Ltd., v. Patricia
[5]
Jean Mahajan and ors. Apex Court again held in the same lines.
10) In the instant case, as already stated supra there was direct nexus between the pecuniary advantage received by the claimants and the death of deceased in the motor vehicle Accident. Therefore, the Tribunal rightly deducted the amount paid by the Corporation from the total compensation. Hence, appellants’ argument cannot be accepted. The cited decision in Bhupender Sing Alak’s case (3 supra) can be distinguished on facts and law. In that case an APSRTC bus and a lorry were involved in accident resulting the death of driver and spare driver of the bus and three passengers and injuries to nine passengers and conductor. Later APSRTC brought a civil suit against the owner and insurer of the lorry on the plea that accident was occurred due to fault of lorry driver and thereby the plaintiff sustained loss of about Rs.2.09,000/- towards damage to the bus besides paying compensation and exgratia to both its drivers under Workmen’s Compensation Act and exgratia to the injured passengers totaling Rs.49,200/-. The trial Court decreed the suit partly granting Rs.74,570/- towards damages to the bus but negatived the relief for Rs.48,600/-on the question of jurisdiction of civil court to entertain the claim for refund of the said amount under Section 13 of Workmen’s Compensation Act. In the appeal the High Court while observing that civil court can entertain the suit provided the conditions specified under Section 13 of the Workmen’s Compensation Act are satisfied, ultimately held that the conditions covered by Sections 8 and 13 were not satisfied inasmuch as the payment was not directly deposited with the Commissioner but directly paid to the parties which was not in accordance with the provisions of the Act and hence the said amount cannot be called as ‘compensation’ within the meaning of Workmen’s Compensation Act. The amount in our case was not paid under Workmen’s Compensation Act to attract the provisions of the said Act. Hence the said decision has no application.
This point is answered accordingly.
11) In view of the above findings, the compensation is enhanced from Rs. 1,92,000/- to Rs. 2,88,000/- and held that the respondents are liable to pay net compensation of Rs.2,38,000/- (Rs.2,88,000/- minus Rs.50,000/-) to the claimants.
12) In the result, the appeal is allowed and ordered as follows:
a) Compensation is enhanced from Rs.1,92,000/- to Rs.2,88,000/-.
b) The enhanced compensation shall carry interest at the rate of 7.5% per annum from the date of filing the appeal till realization.
c) The claimants are directed to pay court fee on Rs.38,000/- (Rs.2,88,000/- minus Rs.2,50,000/-) within one month from the date of this judgment.
d) The respondents are directed to deposit the compensation amount within two (2) months from the date of this judgment, failing which execution can be taken out against them.
e) No order as to costs in this appeal.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U. DURGA PRASAD RAO, J Date: 14.07.2014
Note: L.R Copy to be marked: Yes/ No
Scs/Murthy
[1] 2011(6) ALD 75 (SC)
[2] 2013 ACJ 1403 (SC)
[3] 2006 (1) ACC 474 (DB)
[4] AIR 1998 SC 3191
[5] AIR 2002 SC 2607