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2012 DIGILAW 363 (AP)

Kema Balanarasamma v. APSRTC

2012-03-30

R.KANTHA RAO

body2012
Judgment: M.A.C.M.A.No.1956 of 2009 is filed by the claimants and M.A.C.M.A.No.1960 of 2009 is filed by the APSRTC against the order dated 14.11.2007 passed by the Motor Vehicle Accidents Claims Tribunal-cum-XVII Additional Chief Judge-cum-II Additional Metropolitan Sessions Judge, Hyderabad, in O.P.No.943 of 2005. 2. Heard the learned counsel appearing for the claimants and the learned counsel appearing for the APSRTC and the learned counsel appearing for the Insurance company. 3. The deceased-Kema Yadagiri was working as Panchayat Secretary on the date of his death in the accident and he was getting salary of Rs.5,635/-. On 01.12.2004 at about 08.30 AM while he was coming on his Boxer motor cycle bearing No. AP 29A 2830, an APSRTC bus bearing No. AP 28 U 6499 of Hayathnagar Depot, which was hired to the APSRTC having been driven in a rash and negligent manner dashed the motorcycle as a result of which the deceased fell on the pit, and received grievous injuries and died on the spot. In the claim petition filed by his legal representatives, they claimed compensation of Rs.9 lakhs. The learned Tribunal after making an enquiry into the claim, awarded compensation of Rs.6,96,260/-with interest @ 7.5% per annum from the date of petition till the date of realization. The learned Tribunal fastened the liability of 50% on the APSRTC and 50% on the owner of the vehicle and the insurance company. The counsel for the claimants contended that the amount of compensation has not been properly computed by the learned Tribunal which is not just and reasonable and it requires enhancement. Whereas, in the appeal filed by the APSRTC, it has been contended that since the offending vehicle had been hired to APSRTC by its owner, the learned Tribunal ought to have fastened the liability on the Insurance company. Firstly, I would like to deal with the quantum of compensation. The deceased was working as Panchayat Secretary and was getting salary of Rs.5,635/-per month. His annual income comes to Rs.5,635/-x 12 = Rs.67,620/-. Since the deceased was working in Panchayat Raj Department, 30% of his income has to be added towards future prospects. i.e. Rs.67,620/-x 30/100 = Rs.20,286/-. Since the dependants are four in number 1/4th has to be deducted towards personal and living expenses of the deceased, which comes to Rs.67,620/-+ Rs.20,286/-= Rs.87,906/-x ¼ = Rs. 21,977/-. Since the deceased was working in Panchayat Raj Department, 30% of his income has to be added towards future prospects. i.e. Rs.67,620/-x 30/100 = Rs.20,286/-. Since the dependants are four in number 1/4th has to be deducted towards personal and living expenses of the deceased, which comes to Rs.67,620/-+ Rs.20,286/-= Rs.87,906/-x ¼ = Rs. 21,977/-. Therefore, the income of the deceased for the purpose of computing compensation is taken as Rs.65,929/-. The age of the deceased is 43 years. As per SARALA VARMA AND OTHERS v DELHI TRANSPORT CORPORATION AND ANOTHER ( 2009 ACJ 1298 ),the relevant multiplier relevant to the age of the deceased is ‘14’. To arrive at the loss of earnings, if multiplied with ‘14’, it comes to Rs. Rs.65,929/-x 14 = Rs. 9,32,006/-. This apart, the first claimant, who is the wife of the deceased is entitled for an amount of Rs.10,000/-towards loss of consortium and all the claimants are entitled for Rs.5,000/-towards funeral expenses and Rs.5,000/-towards loss of estate. In all, the claimants are entitled for compensation of Rs.9,32,006/-+ Rs.10,000/-+ Rs.5,000/-+ Rs.5,000/-= Rs. 9,52,006/-. The next question to be determined is who is liable to pay compensation to the claimants. As per the contention of the learned counsel appearing for the APSRTC, since the offending vehicle which was hired to APSRTC belongs to the 3rd respondent/owner of the vehicle, and was insured with the New India Assurance Company it alone is liable to pay compensation. On the other hand, the learned counsel appearing for the insurance company contended that APSRTC is liable to pay compensation to the claimants. The learned counsel appearing for the APSRTC relied on a decision in UTTAR PRADESH STATE ROAD TRANSPORT CORPORATION v KULSUM AND OTHERS (III (2011) ACC 460 (SC) wherein the Supreme Court held as follows: “If the injured vehicle is plying under an agreement of contract with the Corporation on route as per permit granted, in case of accident, Insurance Company would be liable to pay compensation. According to the Apex Court, since the vehicle was given on hire by owner of the vehicle together with its existing and running insurance policy, Insurance company cannot escape its liability to pay compensation and that the liability of the insurance company is exclusive and absolute irrespective of the fact that the vehicle was hired to the APSRTC and was under its control.” In view of the above decision, the finding recorded by the learned Tribunal fastening the liability at 50% each on the APSRTC as well as the insurance company is set aside and in this appeal it is held that the owner of the offending vehicle and the insurance company are jointly and severally liable to pay compensation to the claimants. The amount, if any, deposited by the APSRTC shall be recovered from the insurance company. In view of the above, the appeals filed by the claimants as well as the APSRTC succeeds and they are allowed. The enhanced amount of compensation shall carry interest @ 6% per annum from the date of petition till the date of realisation. There shall be no order as to costs.