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2008 DIGILAW 864 (AP)

Rustum v. Chhotu Moto Joshi

2008-09-30

NOOTY RAMAMOHANA RAO

body2008
JUDGMENT : This civil miscellaneous appeal is filed under Section 173 of the Motor Vehicles Act, 1988 preferred by the claimants who are not satisfied with the quantum of compensation of Rs. 2,47,500/- awarded by the Motor Accidents Claims Tribunal-cum-III Addl. Chief Judge, City Civil Court, Hyderabad in OP No. 3 of 1997. 2. The facts that ate relevant for the present are that on 8. 9. 1996 at about 8. 30 p. m. , the son of the appellants 1 and 2 by name Saleem along with one other person by name Murali Mohan retired to sleep on the road margin near Parasnk Village on National Highway No. 9 in State of Rajasthan behind a truck mounted bore well machine, which went out of order and that at about 8. 30 p. m. , a Maruti Car bearing No. RJ 07 C 1200 came from Rajaldesar side at a high speed and driven very rashly and negligently and ran over those persons who have retired to sleep. As a result of this accident, the son of the appellants 1 and 2 Saleem and another person by name Ramesh died on the spot. Murali Mohan and others sustained grevious injuries. The offending vehicle came to a halt upon hitting the truck mounted bore well. The police of Rajaldesar registered a case in Cr. No. 98 of 1996 under Sections 279, 337 and 304-A IPC against the driver of the Maruti Car and took up the matter for investigation. Since the son of the appellants 1 and 2 died wholly due to the rash and negligent driving of the offending motor vehicle referred to supra, a claim in a sum of Rs. 3 lakhs has been made in Op No. 319 of 1997 on the file of the Motor Accidents Claims Tribunal-cum-III Addl. Chief Judge, City Civil Court, Hyderabad. The 1st respondent was the owner of the vehicle which caused the accident. The 2nd respondent is its insurer. On behalf of the claimants they have examined two witnesses and got marked Exs. Al to A10. Though no witnesses are examined on behalf of the respondents, a copy of the insurance policy has been got marked as Ex. Bl on the side of the respondent No. 2. PW1 is none other than the 1st claimant/appellant herein, the father of the deceased Saleem. Al to A10. Though no witnesses are examined on behalf of the respondents, a copy of the insurance policy has been got marked as Ex. Bl on the side of the respondent No. 2. PW1 is none other than the 1st claimant/appellant herein, the father of the deceased Saleem. He could only narrate the age of the deceased and the particulars of his income etc. , He could not be of much help beyond that inasmuch as he was not an eye-witness to the accident. PW2 is one Mr. Murali Mohan who is one of the injured persons in the accident. He has narrated in graphic detail as to how the offending Maruti Car had been driven at great speed and as to how the accident had been caused due to sheer negligence of the driver of the said vehicle. PW2 himself is an injured person in the accident. He was a direct witness to the accident itself. Police have recorded his statement. The contents of Ex. Al read with Ex. A6 -charge sheet, completely corroborate deposition of PW2. Therefore, there is no difficulty for the Motor Vehicles Tribunal to have arrived at a finding that the accident in question had been caused wholly due to the rash and negligent manner of driving by the driver of the offending Maruti Car and hence the respondents are found jointly and severally liable to pay the compensation, inasmuch as the 2nd respondent has issued the insurance policy which is valid and subsisting at the time of the accident. Further, in the absence of any rebuttal evidence and the best piece of evidence to the contra that can be spoken to by the driver of the vehicle who has not even been examined, there is no material on record even slightly to doubt the correctness of the finding recorded in this regard. 3. The deceased Saleem was shown to be aged about 19 years in Ex. A3, the postmortem report. PW1, the 1st claimant/appellant has deposed that the deceased Saleem was not married. The 2nd claimant/appellant is the mother of the deceased and she was aged about 40 years. Therefore, for purpose of working out compensation the Tribunal had taken the age of. the mother into reckoning. Ex. A8 and A9 are the Service Certificate and the Salary Certificate of the deceased. Ex. The 2nd claimant/appellant is the mother of the deceased and she was aged about 40 years. Therefore, for purpose of working out compensation the Tribunal had taken the age of. the mother into reckoning. Ex. A8 and A9 are the Service Certificate and the Salary Certificate of the deceased. Ex. A9 is issued by the Director of Al Tubewell Private Limited Company. PW2 in his deposition has made it clear that he and Saleem were both working as helpers of the borewell machine. Therefore, Ex. A9 has been relied upon by the Tribunal, particularly, when no attempt has been made by the respondents to challenge the contents thereof. Ex. A9 has set out that the deceased Saleem was paid a sum of Rs. 2,700/-per month. Therefore, deducting l/3rd thereof towards personal expenditure and for maintenance of oneself, the balance amount of Rs. 1,800/- has been taken as the likely amount of contribution by the deceased to the family. Since the deceased was a young person and is not yet married and the prospects of his marriage will have to be reckoned and taken into account and consideration and hence the Tribunal had worked out an average of Rs. 1,350/-per month as the likely contribution by the deceased to the family and on that basis has calculated the compensation of Rs. 2,43,000/-as payable. The Tribunal has also awarded a sum of Rs. 2,500/- towards loss of estate and a sum of Rs. 2,000/-towards funeral expenses. Thus, the total amount of compensation awarded was Rs. 2,47,500/ . As already noted supra, for the balance amount of claim of Rs. 52,500/-, the present appeal has been preferred. 4. Heard Sri Harinatha Reddy, learned Counsel for the appellants, Sri K. V. Janardhan Rao, was heard for Sri Muddu Vijay, learned Counsel for the 2nd respondent for the Insurance Company. 5. Learned Counsel for the appellants contended that when once Ex. A9 vouched that the appellant was earning a monthly salary of Rs. 2,700/-per month, it had erred in taking into account and consideration only a sum of Rs. 1,350/-as the likely amount of contribution by the deceased to the family. In fact, the Tribunal ought to have taken Rs. 1,800/- per month as the likely contribution of the deceased to his family and on that basis should have worked out the compensation. 2,700/-per month, it had erred in taking into account and consideration only a sum of Rs. 1,350/-as the likely amount of contribution by the deceased to the family. In fact, the Tribunal ought to have taken Rs. 1,800/- per month as the likely contribution of the deceased to his family and on that basis should have worked out the compensation. Learned Counsel has also found fault with the meager amounts of compensation awarded by the Tribunal towards loss of estate and towards funeral expenses and the denial of expenses for transportation of the body of the deceased from Rajaldesar to Hyderabad. He has also placed reliance upon two judgments rendered by this Court in P. V. Subba Rao v. Sunkari Varahalamma, 2005 (5) ALD 175 and LK. Kousalyadevi v. Commissioner, Municipal Corporation of Hyderabad, 2006 (1) ALd 597 . Per contra, learned Counsel for the Insurance Company urges that the possibility of reduction of contribution to the family of an individual upon his marriage cannot be ruled out and since the deceased being a 19 year old, it is reasonable to assume that he would have got married in another 5 to 6 years time and therefore arriving at Rs. 1,350/-as the notional contribution of income by the deceased to the family is grossly improper. Learned Counsel has also placed reliance upon the judgments of the Supreme Court in C. K. Subramania Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376 and H. S. Ahammed Hussain v. Irfan Ahammed, 2002 (4) ALD 103 (SC) = (2002) 6 SCC 52 and Municipal Corporation of Greater Bombay v. Laxman Iyer (2003) 8 SCC 731 = 2004 AILD 220 (SC) and Donat Louis Machado and others v. L. Ravindra and others, II (2000) ACC 602 (SC) and urges that the amount of compensation awarded deserves to be reduced. 6. The Tribunal placed heavy reliance upon the deposition of PW2 and upon the contents of Ex. Al, copy of the FIR and Ex. A6, copy of the charge-sheet and had rightly arrived at the conclusion that the accident in question had been caused wholly due to rash and negligent driving by the driver of the offending Maruti Car bearing Registration No. RJ 07c 1200 on 8. 9. 1996. Al, copy of the FIR and Ex. A6, copy of the charge-sheet and had rightly arrived at the conclusion that the accident in question had been caused wholly due to rash and negligent driving by the driver of the offending Maruti Car bearing Registration No. RJ 07c 1200 on 8. 9. 1996. In the absence of any contra evidence and the fact that the driver of the offending Maruti vehicle would have been the best person to depose about the accident having not been examined at all, no exception can be taken to the said finding. The only question that remains to be considered is the quantum of compensation that is liable to be awarded in a case of this nature. Taking into consideration and reckoning Ex. A9 -Salary Certificate, the Tribunal has taken the salary of the individual to be Rs. 2,700/-per month. After deducting l/3rd thereof i. e. , a sum of Rs. 900/- the notional contribution of the deceased to his family has been taken as Rs. 1,800/ -. Since the deceased was only aged 19 years and the prospects of his getting married and establishing his own family separately will also have to be taken into account and consideration, the necessary amount of contribution by such an individual to the family would have to be worked out. Further, whenever young persons die, the life expectancy of the deceased or that of the beneficiaries whichever is shorter, being an important factor was liable to be taken into consideration and account. That's what the Supreme Court has pointed in C. K. Subramania Iyer's case (supra) which principle was followed up in the case of National Insurance Co. Ltd. v. Swarnalata Das, 1993 Supp (2) SCC 743, to the following effect: "The appropriate method of assessment of compensation is the method of capitalization of net income choosing a multiplier appropriate to the age of the deceased or the age of the dependants whichever multiplier is lower." 7. Recognising the fact that upon marriage the contribution of individuals to the family would get reduced, this is what the Supreme Court has pointed in Municipal Corporation of Greater Bombay case (supra) "12. Keeping in view the observations made by this Court in various cases, several other factors need to be taken note of. The deceased was unmarried. Recognising the fact that upon marriage the contribution of individuals to the family would get reduced, this is what the Supreme Court has pointed in Municipal Corporation of Greater Bombay case (supra) "12. Keeping in view the observations made by this Court in various cases, several other factors need to be taken note of. The deceased was unmarried. The contribution to the parents who had their separate earnings being employed and educated has relevance. The possibility of reduction in contribution once a person gets married is a reality. The compensation is relatable to the loss of contribution or the pecuniary benefits. . . " 8. To the same effect is the principle set out by the Supreme Court in Donat Louis Machado's case (supra ). The two judgments of this Court upon which the learned Counsel for the appellants has placed reliance, and referred to supra, have reiterated and followed the principles enunciated in the Supreme Court cases referred to supra. The question therefore is with regard to the quantum of compensation, which has got to be awarded. 9. The Tribunal had taken the notional contribution of income by the deceased to the family is Rs. 1,350/-per month. It is exactly 50% of the salary which the deceased Saleem was receiving as per Ex. Al. It is not unreasonable to assume that the deceased would not have contributed this much of money to his family. The amount of compensation worked out thereon by the Tribunal does not appear to be improper excepting to a small error committed. The Tribunal has adopted the age of the 2nd appellant/mother as 40 years and on that basis the multiplier has been chosen. Such a principle is in fact inconsonance with the judgment rendered by the Supreme Court right from Subramania Iyer's case (supra) onwards. But, however, the Tribunal has not correctly noticed that the II Schedule which has been introduced by Act No. 54 of 1994 with effect from 14. 11. 1994 has attempted to provide for a structured formula of fixing the compensation so as to provide a wholly rational approach and arbitrary-fee process of fixation of compensation by the Tribunals. In this Schedule II what has been set out is the age of the victim and based thereon the multipliers between 18 to 5 have been worked out. 11. 1994 has attempted to provide for a structured formula of fixing the compensation so as to provide a wholly rational approach and arbitrary-fee process of fixation of compensation by the Tribunals. In this Schedule II what has been set out is the age of the victim and based thereon the multipliers between 18 to 5 have been worked out. It has been set out that if the age of the victim is "above 35 years, but not exceeding 40 years", the multiplier should be 16 whereas if the age of the victim is "above 40 years, but not exceeding 45 years", the multiplier is 15. Therefore, what has been specified therein is a structured formula of taking into consideration the age bracket of 5 years as one unit for uniform application of the multiplier provided there for the age group. It is important to notice the expressions used therein as above 35 years, but not exceeding 40 years. Therefore, for 35 to 40 years of age of the victims, the quantification factor has been made into one single unit for application of multiplier 16. The expressions, 'above' and 'not exceeding', used in Schedule II of the Act, clearly indicate the limits of the age group for uniform application of the multiplier. When a person is normally reckoned as above a particular age say 18 years, then it is to be understood that he has completed 18 years of age, but not yet completed 19 years. Similarly, if a person has already completed 40 years, he can be referred to be a person who has exceeded 40 years of age. Therefore, for purposes of selecting the appropriate multiplier, care has to be taken for ascertaining the correct age of the victim. Where, there is no specific material available on record, like in the present case, a beneficial age bracket and a corresponding higher multiplier has to be taken into reckoning. The second schedule has been brought on to the statute not to limit or downsize the social benefits contemplated to be provided to the victims, but to effectively enhance the same by eliminating factors of subjectivity and the associated discretion on the part of the assessors of compensation. It is, therefore, only, appropriate to choose a more beneficial multiplier. The 2nd appellant-mother was said to be 40 years. But, however, the Tribunal has applied the multiplier 15. It is, therefore, only, appropriate to choose a more beneficial multiplier. The 2nd appellant-mother was said to be 40 years. But, however, the Tribunal has applied the multiplier 15. Application of multiplier 15 would have come up if the 2nd claimant/appellant had been found to have exceeded 40 years of age. Therefore, the multiplier 16 should have been adopted but not 15 and consequently the compensation should have been worked out as far as Rs. 1,350 x 12 x 16 = Rs. 2,59,200/ -. To this extent, the appeal must succeed. 10. Learned Counsel for the appellant is also correct in pointing out that awarding a sum of Rs. 2,500/- towards loss of estate is too grossly low. Going by the principle enunciated by the Supreme Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas 1994 (1) ALT 1 (SC), a sum of Rs. 15,000/-should have been awarded. Further, the transportation charges of the body of the deceased has been denied by the Tribunal only on the ground of non production of proof in that regard. The fact remains that the accident had occasioned at a far off Rajasthan State while the claimants who are the parents and other family members are residing at Hyderabad. While transporting the dead bodies, one would seldom care or show concern for collecting receipts towards the transportation charges from the transporters. A realistic view should have been taken in this regard by the Tribunal and a sum of Rs. 2,500/- should have been awarded on this count. Therefore, to the extent indicated supra, the award passed by the Tribunal in OP No. 319 of 1997 stands modified. The civil miscellaneous appeal is allowed to the extent indicated supra. No costs.