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2004 DIGILAW 365 (AP)

Shaik Rahman Sahab v. Amarbin Jaffer

2004-03-24

B.S.A.SWAMY

body2004
B. S. A. SWAMY, J. ( 1 ) THE claimants in o. P. No. 915 of 1990 on the file of the Motor accidents Claims Tribunal, Nalgonda filed this appeal aggrieved by the compensation awarded for the death of one Mohammad jamal alias Shaik Bikkan Sab son of shaik Rahman Saheb who died in a road accident that has taken place on 28-1-1990. ( 2 ) THE facts of the case are that one md. Jamal son of the first claimant was working as a driver of Jeep APY 4844 and was getting a monthly salary of Rs. 1,000/- apart from batta at the rate of Rs. 10-00 per day. On the fateful day while he was driving the Jeep and proceeding from Narasimhulagudem to Suryapet at about 7-30 p. m. a tourist bus bearing no. ATT 1797 came in the opposite direction with rash and negligent manner and hit the jeep. As a result the driver of the jeep died on the spot. While others travelling in the jeep received injuries. The dependants of the deceased filed this application claiming compensation of Rs. 1,00,000/ -. The claim was contested by the respondents that the accident occurred due to the rash and negligent driving of the jeep driver and as such they are not liable to pay any compensation. On the basis of the above pleadings, the Tribunal framed the following issues for consideration. 1. Whether the accident occurred due to the rash and negligent driving of the tourist bus bearing No. ATT 1797 ? 2. To what compensation are the petitioners entitled to? If so, from which of the respondents? 3. To what relief? ( 3 ) ON the basis of the pleadings available on record and the evidence adduced on behalf of the parties the Tribunal recorded a finding that the accident took place due to contributory negligence of the driver of the bus and jeep in equal proportion. These findings has become final since the respondents did not prefer any appeal. ( 4 ) DURING the pendency of the appeal, the first claimant died. The Counsel for the appellants filed a memo stating that the appellants 2 to 6 are his legal representatives. This memo is taken on file and Appellants 2 to 6 are declared as LRs. of the first appellant. ( 4 ) DURING the pendency of the appeal, the first claimant died. The Counsel for the appellants filed a memo stating that the appellants 2 to 6 are his legal representatives. This memo is taken on file and Appellants 2 to 6 are declared as LRs. of the first appellant. ( 5 ) EVEN Counsel for the claimants is not seriously opposing the finding recorded by the Tribunal that the accident took place because of the contributory negligence on the part of the drivers of both the vehicles. It is only the compensation that was awarded by the Tribunal that is being assailed in this appeal. As usual the claimants counsel has not taken any steps to file the salary certificate of the deceased from the owner of the jeep. In those circumstances the learned District Judge has taken and fixed the monthly salary of the driver at rs. 800/- on the basis of the notification issued under Minimum Wages Act, 1990, thereafter the learned District Judge adopted an altogether different procedure in awarding compensation since the deceased was aged 23 years and an unmarried person which runs as follows:"because the deceased was working as the driver it is a fit case where the contribution of the deceased would be Rs. 500/- per month to the family till his marriage which may take place in a couple of years. That is pecuniary lorry to the petitioners till the marriage of the deceased will be Rs. 12,000/- thereafter for sometime the deceased may giving a sum of Rs. 200/- for the maintenance of his sisters and brothers i. e. , for a period of 5 years which comes to Rs. 12,000/ -. Thereafter the contribution to the mother will be a sum of Rs. 100/- till her death. Taking into consideration the age of the mother as 42 years the multiplier that can be used is 12 as per the table given in Bhagavan das v. Mohd. Arif, 1987 (2) ALT 137 . Therefore, the pecuniary loss will be rs. 14,400/ -. In addition to this the petitioners are entitled to non-pecuniary compensation of Rs. 15,000/ -. The petitioner can also be granted a sum of Rs. 600/- towards transport charges of the deceased. In all the petitioners are entitled to a compensation of Rs. 54,000/ -. Arif, 1987 (2) ALT 137 . Therefore, the pecuniary loss will be rs. 14,400/ -. In addition to this the petitioners are entitled to non-pecuniary compensation of Rs. 15,000/ -. The petitioner can also be granted a sum of Rs. 600/- towards transport charges of the deceased. In all the petitioners are entitled to a compensation of Rs. 54,000/ -. In view of my finding on Issue No. 1 to respondents are liable to pay a sum of rs. 27,000/-". ( 6 ) FROM this it is seen that the District judge has estimated the loss of dependency at Rs. 500/- for the parents for a period of 2 years and fixed compensation of rs. 12,000/- for those two years. He fixed the assistance to the unmarried sisters at the rate of Rs. 200/- per month for a period of five years and arrived at Rs. 12,000/ -. Coming to the mother he expected that the contribution would be Rs. 100/- per month till her death and having applied multiplier 12 arrived at the compensation payable at Rs. 14,400/ -. In addition to this he awarded Rs. 15,000/- towards non-pecuniary compensation and Rs. 600/- towards transport charges of the deceased, In all he arrived at the compensation payable to the claimants at Rs. 54,000/- and awarded half of the said amount awarded Rs. 27,000/- to the claimants because the accident took place due to contributory negligence of the deceased person also. The principle applied by the District Judge is unknown to the realm of law. He gave Rs. 500/- to the parents for two years if the father is alive after two years. For mother he fixed the loss of dependency at Rs. 100/- after two years presumably on the ground that in the event the deceased getting married his contribution to the parents will come down. There is no basis whatsoever for this presumption in the statute. I am of the view that the Tribunal is expected to determine the compensation payable as things stand on the date of accident and the tribunal cannot visualize the future events while fixing the compensation. Likewise, the loss of dependency for sisters, he awarded at Rs. 200/- for a period of five years. I have no hesitation to hold that such type of cynical or whimsical method of awarding compensation is not contemplated under the provisions of the Act. Likewise, the loss of dependency for sisters, he awarded at Rs. 200/- for a period of five years. I have no hesitation to hold that such type of cynical or whimsical method of awarding compensation is not contemplated under the provisions of the Act. The question of awarding compensation to the parents and sisters separately does not arise since the Courts have to determine the loss of dependency to the entire family while awarding compensation but not on individual basis. As per the decisions of the courts since both the parents are alive the age of the mother has to be taken into consideration for working out the compensation payable to the claimants. Since the accident has taken place on 28-1-1991, the learned Judge followed the judgment of this Court in Bhagawandas case and applied multiplier "12". Admittedly, the mother is aged about 42 years. The multiplier to be applied is 12. 79 as per Bhagawandas case. Since it is nearing to 13 the multiplier is rounded to 13. Since the Tribunal estimated the salary at Rs. 800/- after deducting Rs. 300/- towards his personal expenses of the deceased I fix the loss of dependency at Rs. 500/- for the entire family i. e. , Rs. 6,000/- per year. If multiplier 13 is applied it conies to Rs. 78,000/ -. As per Bhagawandas case, a fixed amount of Rs. 15,000/- has to be awarded for non-pecuniary compensation and as such the award to the extent of non-pecuniary compensation and transport charges cannot be found fault with. But at the same time on the ground of contributory negligence the learned Judge deducted half in non-pecuniary compensation and transport charges also. The non-pecuniary compensation and transport charges are statutory and the members of the family are being compensated in lump sum for the loss of the earning family member. On the ground of contributory negligence the Court cannot make any deduction out of this amount on any ground. The court can only distribute the compensation awarded towards loss of dependency on prorata basis depending on the extent of contributory negligence attributed by the tribunal and the compensation awarded as per statute has to be retained intact while arriving at the total compensation payable to the dependents of the deceased person. In the light of the above discussion i hold that the claimants are entitled to Rs. In the light of the above discussion i hold that the claimants are entitled to Rs. 39,000/- towards loss of dependency apart from Rs. 15,000/- towards non-pecuniary compensation and Rs. 600/- towards transport charges. In all the claimants are entitled to receive compensation of Rs. 54,600/ -. ( 7 ) THE Tribunal awarded interest at the rate of 12%. But following the judgment of the Supreme Court the interest rate is reduced to 9% p. a. The compensation awarded shall carry interest at 9% p. a. from the date of the filing of the petition till the date of realization. ( 8 ) SINCE all the minor claimants became majors during pendency of these proceedings, no orders need be passed for deposit of the compensation in any nationalized Bank. ( 9 ) IN the result the appeal is allowed by setting aside the award passed by the tribunal. There shall be no order as to costs.