* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.570 of 2009
%05.06.2014
Between:
The Managing Director, APSRTC, Hyderabad. ....
Appellant AND Smt. R. Sandhya Rani and others. ….
Respondents ! Counsel for Appellant : Sri K. Madhava Reddy ^ Counsel for Respondents : Sri N. Krishna < Gist:
> Head Note:
? Cases referred:
1) 2014 (1) ALT 512 (DB)
2) (2009) 6 SCC 121
3) 2011 ACJ 2418 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. No.570 of 2009
JUDGMENT:
Challenging the award dated 19.05.2008 passed in M.V.O.P.No.451 of 2006 by the Chairman, MACT-cum-I Additional Chief Judge, City Civil Court, Secunderabad (for short “the Tribunal), the appellant/APSRTC preferred the instant appeal.
2) The factual matrix of the case is thus:
a) The first claimant is the wife, claimants 2 to 4 are mother, sister and brother of the deceased—R. Kiran Kumar. Their case is that on 09.09.2005 at about 15:50 hours, while the deceased was proceeding towards Dilsukhnagar on his motorcycle bearing No.AP 9 AT 8441 and when he reached near Chaitanyapuri Petrol Pump on N.H.7, one RTC bus bearing No. AP 11 Z 4891 being driven by its driver at high speed and in a rash and negligent manner dashed the deceased from back side. Due to which the deceased fell down on the road and sustained bleeding injuries. Immediately he was shifted to Yashoda Hospital, Malakpet, Hyderabad and he succumbed to injuries on the same day while undergoing treatment. They pleaded that the deceased was a Central Government Employee as SSG-I with Central Institute for Dry Land Agriculture (Indian Council of Agricultural research) and getting monthly salary of Rs.6,116/-. It is averred that the accident was occurred due to the rash and negligent driving of the driver of the offending RTC bus. On these pleas, the claimants filed MVOP No.451 of 2006 against respondent/APSRTC and claimed Rs.9,00,000/- as compensation under different heads mentioned in the OP.
b) Respondent denied the material averments in the claim petition and urged to put the claimants in strict proof of the same. Respondent submitted that there was no rash and negligence on the part of the bus driver and the accident was occurred due to the negligent driving of the deceased himself, as the deceased in order to overtake the bus, lost balance of the motor-cycle and due to ditches, came in contact with the back wheel of the bus and fell down. Respondent finally contended that the compensation claimed is highly excessive and untenable and thus prayed for dismissal of the OP.
c) During trial P.Ws.1 and 2 were examined and Exs.A1 to A7 were marked on behalf of the claimants. No oral or documentary evidence was adduced on behalf of respondent.
d) A perusal of the award would show that considering the oral evidence of PW2 coupled with Ex.A1-FIR and Ex.A5-charge sheet, the Tribunal held that the accident was occurred due to the rash and negligent driving by the driver of the offending RTC bus.
e) Coming to the quantum of compensation, the Tribunal granted total compensation of Rs.5,14,420/- with interest @ 7.5% p.a from the date of OP till the date of realization under different heads as below:
Loss of dependency to wife and other claimants Rs.3,75,870/- Loss of dependency to mother Rs.1,10,550/- Loss of consortium Rs. 10,000/-
Loss of estate Rs. 15,000/-
Funeral expenses Rs. 2,000/- Transport charges Rs. 1,000/-
Total Rs.5,14,420/-
Hence, the appeal by APSRTC questioning the quantum of compensation.
3) Heard arguments of Sri K.Madhava Reddy, learned counsel for appellant/Corporation and arguments of Sri N.Krishna, learned counsel for respondents/claimants.
4a) Criticizing the award the learned counsel for appellant firstly argued the Tribunal grossly erred in holding that accident was occurred due to fault of bus driver. In fact, the deceased while overtaking RTC bus fell in a ditch and thereby came under the rear wheel of the bus and therefore, fault lies with him. PW2 who claimed himself as eye-witness admitted in the cross- examination that he was crossing the road and looking after his safety and it was only after hearing the sound he saw towards accident spot and admitted that he cannot exactly say who was at fault. In view of admission of PW2, he cannot be taken as eye- witness to decide the fault of either driver. In such a case, the Tribunal ought to have held that claimants failed to establish the fault of the bus driver and ought to have dismissed the claim.
Instead, it wrongly opined that the bus driver was responsible for the accident.
b) Secondly, impugning the quantum of compensation learned counsel argued that the Tribunal while calculating loss of dependency for mother and rest of the family members separately, erred in fixing the respective ages of the mother (2nd claimant) as 42 years and age of the deceased as 33 years. When a mother is aged 42 years, her elder son can never be 33 years. This is patently a wrong assumption. Learned counsel argued that in accepting the mother’s age as 42 years and selecting 15 as multiplier, the Tribunal took a high multiplier and thereby compensation was unduly escalated. Having regard to the age of the deceased as 33 years, his mother must be aged more than 50 years and in which case the multiplier would be far lesser than 15. Therefore, compensation should be re- assessed. He thus prayed to allow the appeal.
5a) Per contra, learned counsel for respondents/claimants firstly argued the Tribunal rightly held that the bus driver was responsible for the accident. In view of admission of PW2 that he cannot exactly say which driver was at fault in the accident, the Tribunal omitted his evidence and basing on the other documentary evidence, such as Ex.A1—FIR and A5—final report it correctly held that the bus driver was responsible for the accident. Hence, there is no need to interfere with the said finding.
b) Secondly, learned counsel argued that the Tribunal in fact committed an error in taking the mother’s age for computation of loss of dependency for herself. He argued that the mother’s age is not relevant for assessing compensation even in the case of a death of bachelor. Since the deceased was a married person in the instant case, his age alone ought to have been taken for computation of loss of dependency of all the claimants. If compensation is assessed in such a manner, the total compensation will increase much more and therefore, in any event, there is no need to reduce the compensation as argued by the appellant. He thus prayed for dismissal of the appeal.
6) 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?”
7a) POINT: The accident, involvement of APSRTC bus bearing No.AP 11Z 4891 and motor-cycle bearing No.AP 9 AT 8441 and death of the deceased are all admitted facts. The first contention of the appellant is that deceased himself was responsible for the accident and the Tribunal wrongly held as if APSRTC driver is guilty. In this context, perusal of the evidence would show that claimants examined PW2—M.R.Viswanath as an eye-witness to the accident. It appears though PW2 in his chief examination stated that the accident took place due to rash and negligent driving of the driver of the bus, still in the cross- examination he admitted that before accident he was crossing the road from one side to another side, at that time he was looking at the traffic of either side of the road for his safety and he saw the accident spot immediately after hearing the sound and he cannot exactly say who was at fault i.e. whether the bus driver or motor-cyclist. So, as rightly argued by the learned counsel for appellant, the evidence of PW2 is not clinching on fault of either of the drivers. However, that is not the end of the matter. The Tribunal due to this indefiniteness in the evidence of PW2, omitted his evidence and sought for other available evidence on record. The Tribunal having observed the complaint allegations in Ex.A1—FIR to the effect that before accident the bus was driven by its driver in a rash and negligent manner and dashed the motor cycle from back side and thus caused the accident and also observing that the police after investigation found fault with the bus driver laid charge sheet under Ex.A5, came to the conclusion that bus driver was responsible for the accident. I find no irregularity or illegality in the said finding of the Tribunal. It must be noted that as against the available documentary evidence which demonstrates fault of the bus driver, the appellant/APSRTC has not adduced any contra evidence by examining its bus driver to prove its version that the motor-cyclist himself was responsible for the accident. In view of lack of contra evidence, the Tribunal fully justified in deciding the issue basing on the available evidence on record. Hence, the appellant/APSRTC cannot now agitate that Tribunal erred in holding the bus driver guilty.
b) Then, the next argument of the appellant is with regard to the Tribunal’s erring in computation of loss of dependency by taking the mother’s age as 42 years and deceased’s age as 33 years. It is true that if the computation is seen in that angle, it would appear that the Tribunal has committed an error in selection of respective ages of the mother and her deceased son. But, here one point must be noted. The Tribunal committed error not only in selecting respective ages of mother and her deceased son but also in computing the loss of dependency individually for the mother basing on her age and the rest of the family members basing on the age of the deceased. Though not specifically mentioned, it appears that the Tribunal computed two different loss of dependencies on the premise that mother being elder to the deceased, her loss of dependency would be lesser than the dependency of other family members of the deceased due to the fact that they are younger to him. This is probably on the assumption “younger survives elder”. However, it must noted that the ideal principle for computation of dependency is to take the age of the deceased for selection of multiplier irrespective of the fact that some of his dependents are elder to him and some are younger to him. It may be noted that similar question has arisen in the context of the death of a bachelor. In such a case, the question was whether the age of the deceased—bachelor or the age of his parents, is to be taken for selection of multiplier. A Division Bench of this High Court in N.Surender Rao and others
[1]
v. B. Swamy and another after perusing a number of decisions of Apex Court held that the age of the deceased shall alone be taken into consideration but not the age of the dependents of the deceased—bachelor. In my view, the ratio in the said decision equally applies to the instant case, though here the deceased happens to be a married man. If the said ratio is followed, loss of dependency has to be calculated for all the dependents alike by taking the age of the deceased into consideration. In such a case the calculation will be as follows.
c) The Tribunal accepted the net monthly salary of the deceased as Rs.3,685/- per month. If the same is accepted, the annual income of the deceased will come to Rs.44,220/- (Rs.3,685 x 12). From this amount a suitable portion has to be deducted towards personal expenditure of the deceased. In the case of Sarla Verma vs. Delhi Transport Corporation[2] the Honourable Apex Court held that 1/4th is to be deducted when the number of dependant members is four to six. As in this case, the number of dependents is four, 1/4th has to be deducted. In such an event, the net annual contribution of the deceased to his family comes to Rs.33,165/- (Rs.44,220 x ¾ ). Since the age of the deceased is 33 years, suitable multiplier has to be selected basing on his age. As per Sarla Verma’s case (2 supra) 16 is the suitable multiplier for the deceased in the age group of 31 to 35 years. So, by multiplying the net annual contribution with 16, we will arrive at Rs.5,30,640/- (Rs.33,165 x 16). So, all the dependents are entitled to the said amount as compensation for loss of dependency. To this amount the compensation awarded under other heads has to be added. In such an event, the total compensation will exceed the compensation as awarded by the Tribunal. However, this Court cannot grant such an excess compensation due to the fact that appeal is filed by the APSRTC and not by the claimants challenging the adequacy of compensation. It was held by the Apex Court in Ranjana
[3]
Prakash and others v. Divisional Manager and another thus:
“Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.”
Hence, the only course open to this Court is to dismiss the appeal.
8) In the result, this MACMA is dismissed by confirming the award passed by the Tribunal in MVOP No.451 of 2006. No costs in the appeal.
As a sequel, miscellaneous petitions pending, if any, shall stand closed.
U.DURGA PRASAD RAO, J Date: 05.06.2014
Note: L.R. Copy to be marked: Yes/No
Murthy
[1] 2014 (1) ALT 512 (DB)
[2] (2009) 6 SCC 121
[3] 2011 ACJ 2418