* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.335 of 2009
%17.12.2014
Between:
Shaik Shaheena and another. ....
Appellants AND Andhra Pradesh State Road Transport Corporation Rep. by its Managing Director/ Vice Chairman, Musheerabad, Hyderabad. …. Respondent ! Counsel for Appellants : Sri G. Sudheer ^ Counsel for Respondent : Sri K.V.Subba Reddy < Gist:
> Head Note:
? Cases referred:
1) 2014 (1) ALT 512
2) 2009 ACJ 1298 (SC)
3) 2007 ACJ 1477 (Raj)
4) 2013 ACJ 1253 (SC) THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A. No.335 of 2009
JUDGMENT:
Aggrieved by the Award dated 18.09.2008 in M.V.O.P.No.323 of 2007 passed by the Chairman, M.A.C.T- cum-III Additional District Judge, Tirupati (for short “Tribunal”), the claimants preferred the instant MACMA.
2) The factual matrix of the case is thus:
a) The first claimant is the mother and second claimant is the younger brother of the deceased—Shaik Abdul Nabi. On 02.09.2006 at about 11:30am, when the deceased started his auto bearing No.AP 03 U 8670 at Rompicherla along with other passengers to go to Tirupati and when the said auto reached a culvert near Kalyani Dam on Tirupati—Bhakarapet Main road, one RTC bus bearing No.AP 11 Z 4711 came in opposite direction, being driven by its driver at high speed and in a rash and negligent manner and dashed the auto. In the resultant accident, the deceased succumbed to injuries and other inmates of the auto sustained grievous injuries. It is averred that the accident was occurred due to the rash and negligent driving by the driver of the RTC bus. On these pleas, the claimants who became destitutes due to the sudden demise of the deceased, filed M.V.O.P.No.323 of 2007 against A.P.S.R.T.C. and claimed Rs.6,00,000/- as compensation.
b) Respondent/APSRTC filed counter and opposed the claim denying all the material averments made in the petition. It is submitted that on 02.09.2006, S.N. Rasool was the driver of the RTC bus and when it reached near Kalyani Dam, he observed a narrow bridge with right turning and slowed down the bus and in the meanwhile, the deceased drove his auto at high speed and in zig zag manner, lost control due to overload and dashed the right side of the bus. Thus, there is a contributory negligence on the part of the deceased. It also contended that the petition is bad for non-joinder of the owner and insurer of the auto and thus prayed to dismiss the O.P.
c) During trial, PWs.1 and 2 were examined and Exs.A1 to A9 were marked on behalf of claimant. RW.1 was examined on behalf of respondent.
d) The Tribunal on appreciation of oral and documentary evidence has awarded a sum of Rs.1,90,000/- with costs and interest at 7.5% p.a under different heads as follows:
Loss of income Rs.1,60,000-00 Loss of estate Rs. 20,000-00 Funeral expenses Rs. 10,000-00 Total Rs.1,90,000-00 Hence the appeal by claimants.
3) The parties in the appeal are referred as they stood before the Tribunal.
4) Heard arguments of Sri G.Sudheer, learned counsel for appellant/ claimants and Sri Subba Reddy, learned counsel for respondent/APSRTC.
5 a) Challenging the quantum of compensation as low, learned counsel for appellants/claimants firstly argued that the Tribunal grossly erred in fixing notional income of the deceased as Rs.15,000/- per annum following Second Schedule of the Motor Vehicles Act, 1988 (for short “the Act”). He would argue that deceased was in fact not a non-earning member so as to fix his notional income as Rs.15,000/- but on the other hand, he was an auto driver and in fact at the time of accident he was driving the auto carrying passengers. Hence, his monthly income should be fixed on a reasonable assessment but not by following Second Schedule. Due to this error of the Tribunal compensation was drastically reduced.
b) Secondly, learned counsel argued the Tribunal erred in adopting the age of the mother of the deceased (first claimant) for selection of multiplier instead of taking the age of the deceased into consideration. He relied upon the decision of the Division Bench of this Court reported in N. Surender Rao and
[1]
others v. B.Swamy and another and argued that age of the deceased bachelor is relevant for selection of multiplier but not his parents. He thus prayed to allow the appeal and reassess the compensation.
6 a) Per contra, learned counsel for respondent/APSRTC would argue the accident was in fact occurred due to the fault of deceased himself, which is evident from the decision of RW1— the driver of bus and Tribunal erred in fixing liability on the bus driver. Thus, at the first instance learned counsel argued that claim ought to be dismissed.
b) Secondly, learned counsel argued that though Tribunal was right in fixing notional income of the deceased by following Second Schedule of MV Act, but it erred in deducting only 1/3rd from his earnings towards personal expenditure. Learned counsel contended that by following the decision of Apex Court i n Smt. Sarla Verma and others v. Delhi Transport
[2]
Corporation and another the Tribunal must have deducted 50% from the earning of the deceased. He thus prayed to exonerate the respondent from its liability or alternatively reassess the compensation in terms of his arguments.
7) In the light of above rival arguments, the point for determination in this appeal is:
“Whether the award passed by the Tribunal is factually and legally sustainable?”
8) POINT: Accident, involvement of auto bearing No.AP 03 U 8670 and RTC bus bearing No. AP 11 Z 4711 and death of the deceased are not in dispute.
a) Before deciding the correctness of quantum of compensation arrived at by the Tribunal with reference to the arguments on either side, the arguments advanced on behalf of respondent/APSRTC regarding the fault of deceased has to be taken note of. It is the contention of respondent that accident was occurred due to the fault of deceased himself but not the bus driver. It may be noted that Tribunal in its award while answering issue No.1 considering the evidence on record, has held that bus driver was responsible for the accident. The respondent/APSRTC has not challenged this finding by preferring an appeal. Therefore, in this appeal filed by the claimants, the said contention cannot be considered. Hence, the said argument is rejected.
b) Now, coming to quantum of compensation, the Tribunal awarded Rs.1,90,000/- under different heads, as stated supra. The first argument of claimants is that Tribunal erred in fixing the notional income of the deceased at Rs.15,000/- per annum in spite of the fact that deceased by driving auto earning Rs.4,000/- per month. In this regard, perusal of para-14 of the award shows that Tribunal taking Ex.A8—driving licence of deceased and accepting the contention of respondent that deceased was not holding driving licence, has held that deceased was not an auto driver and not earning Rs.4,000/- per month. I am afraid, this finding is not correct. It is true that Ex.A8 —driving licence would show that deceased was granted learner’s licence to drive LMV (non-transport) from 23.12.2005 to 22.06.2006 and he was not possessing licence to drive transport vehicle by the date of accident. However, by that count it cannot be concluded that he was not eking out his livelihood by driving auto. It must be noted that doing a particular work and possessing requisite qualification are different aspects. Even a person is not holding requisite certificate for undertaking a particular trade, still by experience he may undertake that work and earn some livelihood. He may have to face legal consequences for not possessing requisite certificate. That is altogether a different aspect. So, in the instant case, merely because the deceased was holding only LLR one cannot automatically jump into conclusion that he was not eking out his livelihood by driving auto. On the other hand, Ex.A2—inquest report which was prepared within short time after accident reveals that the accident was occurred when the deceased was carrying passengers from Mangalampet to Tirupathi. This is an ample evidence to hold that the deceased was an auto driver by profession.
c) Now, the aspect is whether the Tribunal was right in fixing his notional income as Rs.15,000/- per annum on the premise that he was a non-earning person. When we agree that deceased was an auto driver by profession, it follows that he was not a non-earning member but earning some income. In a decision reported in Vishan Das and others v. Suwa Lal and
[3]
others the Rajasthan High Court held thus:
“Once there is evidence of the fact that the deceased was working, the learned Tribunal can safely presume that the deceased was having an income. Item 6 of the Second Schedule attached to the Motor Vehicles Act, 1988 (henceforth to be referred to as 'the Act' for short) speaks of "Notional income for compensation to those who had no income prior to accident" (emphasis added). Hence, a notional income can be presumed only in case the deceased had 'no income' prior to his death by accident. However, in case the deceased was employed, he would naturally, be earning some amount. In other words, he would have 'some income'. Hence, 'notional income' cannot be presumed in such a case. To apply a notional income in those cases where there is lack of evidence with regard to the income of the deceased, is to misread and misapply item 6 of the Second Schedule of the Act.”
Therefore, it is not apposite to fix the notional income of the deceased as Rs.15,000/- per annum. Considering the age and avocation, the monthly income of the deceased can be fixed at Rs.1,500/-/- per month by the date of accident. To this amount, a sum of Rs.500/- can be added towards future prospects. Thus, the annual income of the deceased which will serve the purpose as multiplicand comes to Rs.24,000/- (Rs.2,000/- x 12).
d) Then, deduction is concerned, the argument of learned counsel for respondent is that since the deceased was bachelor, 50% of his earnings is to be deducted towards his living and personal expenditure following the dictum laid down in Sarla Verma’s case (2 supra). This argument cannot be accepted for the reason that the guidelines given in Sarla Verma’s case (2 supra) are with reference to petitions filed under Section 166 of MV Act whereas the present petition is filed under Section 163A of MV Act. This has been explained by Apex Court in the case of Reshma Kumari and others vs.
[4]
Madan Mohan and another the Apex Court held thus:
“ I n Sarla Verma (Smt.) and Ors. vs. Delhi Transport Corporation and another (2009 (6) SCC 121), this Court had an occasion to consider the peculiarities of Section 163A of the 1988 Act vis-a-vis Section 166. The Court reiterated what was stated in earlier decisions that the principles relating to determination of liability and quantum of compensation were different for claims made under Section 163A and claims made under Section 166. It was stated that Section 163A and the Second Schedule in terms did not apply to determination of compensation in applications under Section 166.”
Therefore, one of the guidelines in Sarla Verma’s case (2 supra) effecting deduction of 50% from the earnings of the deceased bachelor towards his personal expenditure cannot be applied in the instant case. Hence, the Tribunal’s deducting 1/3rd is upheld. Thus, the net annual contribution of the deceased to his family comes to Rs.16,000/- (Rs.24,000/- x 2/3rd ).
e) Then, regarding selection of multiplier the Tribunal selected ‘16’ as multiplier having regard to the age of the mother of the deceased. The contention of appellants is that the age of the deceased should be taken into consideration for determination of multiplier. It is true that in N.Surender Rao’s case (1 supra) a Division Bench of this High Court held that age of the deceased bachelor shall alone be taken into consideration but not the age of his dependant parents for selection of multiplier. As per Ex.A5—SSC marks list, the date of birth of deceased was mentioned as 16.03.1998. Hence, by the date of accident he was 18 years old. As per Second schedule of MV Act, ‘16’ is the multiplier for the persons in the age group of 15 to 20 years. So, there can be no change in the multiplier. Thus, compensation payable under loss of dependency comes to Rs.2,56,000/- (Rs.16,000/- x 16).
Thus, the total compensation payable to the claimants is as follows:
Loss of dependency Rs.2,56,000-00 Loss of estate Rs. 20,000-00 Funeral expenses Rs. 10,000-00 Total Rs.2,86,000-00 Thus, the compensation is enhanced by Rs.96,000/- (Rs.2,86,000/- minus Rs.1,90,000/-)
9) In the result, this appeal is partly allowed and ordered as follows:
a) The compensation is enhanced by Rs.96,000/- with proportionate costs and simple interest @ 7.5% per annum from the date of O.P till the date of realization.
b) The respondent is directed to deposit the enhanced compensation amount within two months from the date of this judgment, failing which execution can be taken out against it.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U.DURGA PRASAD RAO, J Dt.17.12.2014
Note: L.R. copy to be marked: Yes/No
Murthy
[1] 2014 (1) ALT 512
[2] 2009 ACJ 1298 (SC)
[3] 2007 ACJ 1477 (Raj)
[4] 2013 ACJ 1253 (SC)