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2001 DIGILAW 691 (AP)

Rehana v. G. Sai Kumar

2001-07-09

G.ROHINI, MOTILAL B.NAIK

body2001
MOTILAL B. NAIK, J. ( 1 ) APPELLANTS herein are the claimants in O. P. No. 132 of 1994 on the file of the Court of the Chairman, motor Accidents Claims Tribunal-cum district Court, Rangareddy District, who instituted the above O. P. seeking a compensation of Rs. 7,00,000 for the death of one Mohd. Qasim Jeelani, who was working as a Senior Assistant in Central Excise department, in a motor accident that took place on 22. 1. 1994 around 4 p. m. near sushma Theatre at Vanasthalipuram crossroads in Hyderabad. ( 2 ) THE appellant No. 1 is the wife, appellant Nos. 2 to 4 are the minor children and the appellant No. 5 is the mother of the deceased. According to these appellants- claimants, the deceased Qasim Jeelani was riding the Luna along with one Venkatesh-warlu as a pillion rider and while he was crossing the road towards left near Sushma theatre on 22. 1. 1994 at about 4. 30 p. m. , the lorry bearing No. AET 2388 driven at high speed and in a rash and negligent manner dashed against the Luna resulting in multiple injuries to Qasim Jeelani as well as to the pillion rider Venkateshwarlu. Qasim Jeelani was shifted to Osmania Hospital, where he died after three days while undergoing the treatment. The claimants pleaded that the deceased was working as a Senior Assistant in the Central Excise department and drawing Rs. 4,500 per month and was contributing Rs. 4,000 per month for the welfare of the family. The claimants further pleaded that as a result of the death of the deceased, the entire family is deprived of the dependency. The claimants also pleaded that the deceased was aged about 40 years at the time of his death and had future prospects of further promotions. Therefore, the claimants had claimed a compensation of Rs. 7,00,000 in all for the death of the deceased. ( 3 ) BEFORE the Tribunal, on behalf of the respondent No. 1, who is the owner of the lorry involved in the accident, a counter was filed denying the allegations about the accident as well as disputing the age, occupation and income of the deceased. 7,00,000 in all for the death of the deceased. ( 3 ) BEFORE the Tribunal, on behalf of the respondent No. 1, who is the owner of the lorry involved in the accident, a counter was filed denying the allegations about the accident as well as disputing the age, occupation and income of the deceased. The respondent No. 2 insurance company also filed a counter stating that there was contributory negligence on the part of the deceased while he was riding the Luna, which has resulted in the accident and denied the liability. ( 4 ) BASING on the rival pleadings, the tribunal framed the following issues for consideration: (1) Whether the accident occurred on 22. 1. 1994 at 4 p. m. was due to rash and negligent driving of the driver of lorry bearing No. AET 2388? (2) Whether the petitioners are entitled to any compensation? If so, to what amount and against whom? (3) To what relief? ( 5 ) TO substantiate their claim, claimants examined two witnesses, PW 1 being the wife of the deceased and PW 2, being the pillion rider along with the deceased on the fateful day, and got marked Exhs. A-l to A-10. On behalf of the respondents, none was examined, however, Exh. B-1 the insurance policy was marked. ( 6 ) THE Tribunal, on the basis of the evidence of PW 2 came to the conclusion that there was contributory negligence on the part of the deceased, which resulted in the death of the deceased. Having reached to such conclusion, the Tribunal felt that one-third of the compensation should be deducted in the compensation to be awarded to the claimants. Based on the evidence, the Tribunal determined the age of the deceased as 40 years at the time of his death and applied multiplier of 10. 5. Applying the multiplier of 10. 5 the Tribunal awarded compensation of Rs. 2,01,000 in all which includes loss of consortium as well as loss to estate. As against the award made by the Tribunal dated 16. 1. 1995, the claimants carried the matter before this court in the present appeal. ( 7 ) MR. 5. Applying the multiplier of 10. 5 the Tribunal awarded compensation of Rs. 2,01,000 in all which includes loss of consortium as well as loss to estate. As against the award made by the Tribunal dated 16. 1. 1995, the claimants carried the matter before this court in the present appeal. ( 7 ) MR. P. Ramakrishna Reddy, learned counsel for the appellants submits that in order to reach to a conclusion about the contributory negligence on the part of the deceased, who died as a result of the accident, the Tribunal solely relied on the evidence of PW 2, who was the pillion rider on the Luna driven by the deceased at the time of accident, which according to him is not correct method adopted by the Tribunal. He further states that in the absence of any corroborative evidence on behalf of the respondents, without examining the driver of the lorry who could have been the right person to speak about the contributory negligence on the part of the deceased, the Tribunal ought not to have taken into consideration mere utterance of few words by PW 2 in his deposition. However, according to counsel the Tribunal has taken the same as gospel truth and arrived at the conclusion that the deceased had contributed to the accident and deducted one-third of the compensation. The learned counsel pointed out to the court that the deceased, who was aged 40 years at the time of his death, was working as a Senior assistant in Central Excise Department, and the promotional future prospects of the deceased should have also to be taken into consideration while determining loss of earnings. He relied on a decision of the hon ble Supreme Court in General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas, 1994 ACJ 1 (SC), and pleaded that the Tribunal was not justified in awarding a meagre compensation of rs. 2,01,000 to the claimants, and prayed for awarding appropriate compensation in terms of section 168 of the Motor Vehicles act, 1988. The learned counsel also stated that the Tribunal was not justified in de ducting one-third income of the deceased towards his personal expenditure, though pw 1, the wife of the deceased, has categorically deposed in her evidence that her husband was contributing his entire salary for the maintenance of the family. ( 8 ) ON the contrary, Mr. The learned counsel also stated that the Tribunal was not justified in de ducting one-third income of the deceased towards his personal expenditure, though pw 1, the wife of the deceased, has categorically deposed in her evidence that her husband was contributing his entire salary for the maintenance of the family. ( 8 ) ON the contrary, Mr. Prasad, learned counsel for the respondent No. 2, insurance company, submits that the Tribunal has adopted a just and reasonable method while awarding compensation. He pointing out that the evidence of PW 2, who was the pillion rider on the Luna driven by the deceased at the time of accident, says that he himself and the deceased noticed the lorry coming at high speed which was at distance of 30 ft. from them. The counsel submitted in such a situation the deceased ought not to have taken the risk of crossing over the road, therefore, the Tribunal was justified in accepting the evidence of PW 2 and rightly decided to deduct one-third of the compensation from the compensation to be awarded to the claimants, for the contributory negligence on the part of the deceased. The learned counsel also states that the deduction of one-third amount from the monthly income of the deceased towards his personal expenses is in accordance with the ratio laid down by the Apex court in Susamma Thomas case, 1994 acj 1 (SC ). Therefore, counsel pleaded that the award made by the Tribunal is just and proper and no interference is required by this court. ( 9 ) HAVING regard to the submissions made by both the learned counsel, the point for consideration is: whether the Tribunal was just in awarding compensation of Rs. 2,01,000? ( 10 ) SO far as the first limb of the submission of learned counsel for the appellants regarding the contributory negligence on the part of the deceased is concerned, we must say without any hesitation that merely because PW 2 made a statement before the Tribunal that they noticed the lorry at a distance of 30 ft. , that could not be ground for the Tribunal to reach to a conclusion that the driver (deceased) of the Luna has contributed for the accident. A further reading of the evidence of PW 2 would reflect that the lorry was coming at high speed. , that could not be ground for the Tribunal to reach to a conclusion that the driver (deceased) of the Luna has contributed for the accident. A further reading of the evidence of PW 2 would reflect that the lorry was coming at high speed. In the present case the place of accident being a crossroads, which has access to various places including a cinema theatre, the time being around 4 p. m. , the drivers of heavy vehicles are expected to reduce the speed of the vehicles. Probably, if the Tribunal had noticed the other part of the evidence of PW 2 that the lorry was coming at high speed, we are sure that the tribunal would not have arrived at a conclusion that the deceased had contributed for the accident. That apart, there is no evidence on behalf of the respondents to prove that there was contributory negligence on the part of the deceased. To speak about the contributory negligence on the part of the deceased, the driver of the lorry in question could have been the right person, to say about the factual position. In the absence of any such evidence on behalf of the respondents, in our view, the Tribunal ought not to have reached to such a conclusion. Therefore, we agree with the submission made by the learned counsel for the appellants and we set aside the finding given by the Tribunal that there was contributory negligence on the part of the deceased, which resulted in the accident. ( 11 ) WITH regard to the submission of the learned counsel for the appellants that the Tribunal was not justified in deducting one-third of the income of the deceased towards his personal expenses, when there is evidence of PW 1 to the effect that the deceased was contributing his entire salary to the maintenance of the family, and the future prospects are also taken into consideration in a recent decision of a Division bench of this court, in which one of us (Dr. Motilal B. Naik, J.) is a Member, in andhra Pradesh State Road Trans. Corpn. v. G. Jana Bai, 2002 ACJ 502 (AP), this court had an occasion to deal with the situation requiring granting of compensation taking into consideration the future prospects of the deceased also. In that case, the deceased was a Sub-Manager in a nationalised bank and was aged 37 years. Corpn. v. G. Jana Bai, 2002 ACJ 502 (AP), this court had an occasion to deal with the situation requiring granting of compensation taking into consideration the future prospects of the deceased also. In that case, the deceased was a Sub-Manager in a nationalised bank and was aged 37 years. The division Bench considered that aspect in tune with the ratio laid down by the Apex court in Susamma Thomas case, 1994 acj 1 (SC) and adopted a different device by increasing two points to the multiplier and awarded compensation. Following the said judgment of the Division Bench of this court, we are of the view that the claimants in this appeal are also entitled to the benefit extended to the claimants in that case. ( 12 ) IN the case on hand, the deceased was aged 40 years and working as a Senior assistant in the Central Excise Department. To retire, it would take another 20 years and in these twenty years, probably he would be placed in a better position. Since the deceased was aged 40 years, the relevant multiplier to be adopted in this case is 12. 79, but not 10. 5 as adopted by the Tribunal, which is not in tune with the ratio laid down in Bhagawan Das v. Mohd. Arif, 1987 ACJ 1052 (AP ). ( 13 ) INSOFAR as the other aspect of deduction of one-third of the income towards personal expenses of the deceased is concerned, in Susamma Thomas case, 1994 acj 1 (SC), the Hon ble Supreme Court has categorically held that in the absence of any evidence to show that the deceased was contributing certain amounts for the family or he was incurring some expenditure for his personal requirements, deduction of one-third could be reasonable. In the present case, the wife of the deceased who was examined as PW 1, has deposed that her husband was contributing his entire salary to the maintenance of the family. As per Exh. A-9, salary certificate, the monthly salary of the deceased as on the date of accident is Rs. 3,300. In the present case, the wife of the deceased who was examined as PW 1, has deposed that her husband was contributing his entire salary to the maintenance of the family. As per Exh. A-9, salary certificate, the monthly salary of the deceased as on the date of accident is Rs. 3,300. Though PW 1 deposed that her husband was contributing his entire salary for the welfare of the family, in the judgment made in G. Jana bai s case, 2002 ACJ 502 (AP), the Division Bench of this court held that though there was positive evidence, the Division bench after doing some guesswork and taking into consideration the status of the person and the place of work, deducted rs. 1,000 from the monthly income of the deceased towards his personal expenses. In view of the fact that the deceased in this case was working as a Senior Assistant in the Central Excise Department and working in Hyderabad City, we are of the view that in the facts and circumstances of the case, deduction of Rs. 1,000 from salary of the deceased for his monthly personal expenses would be reasonable. ( 14 ) THUS, the compensation to which the appellants are entitled could be worked out in the following manner. The monthly income of the deceased was Rs. 3,300. Out of which, if an amount of Rs. 1,000 is deducted towards his personal expenses, it would come to Rs. 2,300 per month, which would be the contribution by the deceased to his family. The annual contribution of the deceased to his family is Rs. 27,600. ( 15 ) AS discussed above, the relevant multiplier to be applied in this case is 12. 79, which is rounded off to 13. Following the decision of the Division Bench of this court in G. Jana Bai s case, 2002 ACJ 502 (AP), two points are to be added to the multiplier of 13. Thus the relevant multiplier to be adopted in this case is 15 for determining the loss of earnings. Thus the appellants-claimants are entitled to a sum of Rs. 4,14,000 (Rs. 27,600 x 15) towards loss of earnings. This apart, the appellant no. 1, who is the wife of the deceased is entitled for an amount of Rs. 15,000 towards loss of consortium. In addition to that, claimants are entitled to an amount of rs. 15,000 towards loss to estate. 4,14,000 (Rs. 27,600 x 15) towards loss of earnings. This apart, the appellant no. 1, who is the wife of the deceased is entitled for an amount of Rs. 15,000 towards loss of consortium. In addition to that, claimants are entitled to an amount of rs. 15,000 towards loss to estate. Thus, in all the appellants-claimants are entitled to rs. 4,44,000 towards compensation for the death of the deceased. The appellants are entitled to receive interest at the rate of 12 per cent per annum on the above compensation amount from the date of filing of the petition till the date of realisation. ( 16 ) THE next aspect which has to be examined is apportionment of this compensation amount amongst the appellants- claimants. Appellant No. 1 is the wife, appellant Nos. 2 to 4 are the minor children and appellant No. 5 is the mother of the deceased. The mother of the deceased is aged about 65 years. Therefore, we feel it just and proper to award an amount of rs. 40,000 to the claimant No. 5. The claimant No. 5 shall be entitled to receive an amount of Rs. 40,000 along with the interest accrued thereon and she is permitted to withdraw the same. As stated above, the claimant No. 1 shall be exclusively entitled to an amount of Rs. 15,000 towards loss of consortium. Out of the remaining amount of Rs. 3,89,000, claimant Nos. 1 to 4 shall be entitled to get equal share, i. e. , Rs. 97,250 each. The claimant No. 1 is permitted to withdraw the compensation that fell to her share, i. e. , Rs. 15,000 towards loss of consortium plus Rs. 97,250 = Rs. 1,12,250 along with the interest accrued thereon. Regarding the claimant no. 2, it is stated that he was aged 14 years at the time of filing of the petition and now he has attained majority and is studying in Engineering. It is also submitted by the learned counsel for the appellants that the claimant No. 2 may be permitted to withdraw the entire amount that fell to his share with interest to meet his educational expenses. In the circumstances, the claimant No. 2 is permitted to withdraw entire compensation amount awarded to his share along with the interest accrued thereon. As the claimant Nos. In the circumstances, the claimant No. 2 is permitted to withdraw entire compensation amount awarded to his share along with the interest accrued thereon. As the claimant Nos. 3 and 4 are still minors, the claimant No. 1 is permitted to withdraw 50 per cent of the compensation awarded to claimant Nos. 3 and 4 and the remaining 50 per cent shall be in fixed deposit till they attain majority. However, the claimant no. 1 is entitled to withdraw interest that accrues on the fixed deposit amounts of claimant Nos. 3 and 4 once in six months. The claimant No. 1 is permitted to move the Tribunal to grant permission to withdraw any amount from the fixed deposits made in the names of minor claimant Nos. 3 and 4 to meet any contingency arising out of any expenditure that has to be met either in connection with the educational expenses or for other purposes relating to the minor claimant Nos. 3 and 4, and on filing such application, the Tribunal shall examine the circumstances and pass the appropriate orders. ( 17 ) THE appeal is allowed in part as indicated above. No costs. Appeal partly allowed.