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2013 DIGILAW 1071 (AP)

R. Radhika v. A. P. S. R. T. C rep. by Regional Manager, Jubilee Bus Stand, Picket, Secunderabad

2013-11-26

B.SIVA SANKARA RAO

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Judgment : This appeal is filed against the Order/Award of the learned Chairman of the Motor Accidents Claims Tribunal–cum–I Additional Chief Judge, City Civil Court, Secunderabad (for short, ’Tribunal’) in M.V.O.P.No.35 of 2004 dated 10.07.2006; by the claimants who are the wife and minor daughter of deceased Rathan Vijay Kumar, aged about 28 (30 years approximately as per Ex.A5 postmortem report) years, having been aggrieved by the award of the Tribunal granting compensation of Rs.4,08,000/- (Rupees four lakhs and eight thousand only) out of the claim of Rs.10,00,000/- (Rupees ten lakhs only) against the respondent viz., APSRTC and by claiming enhancement of compensation as prayed for in the appeal by allowing the claim petition filed under Section 166 of the Motor Vehicle Act,1988 (for short, ‘the Act’). 2. Heard Sri Kota Subba Rao, the learned counsel for the appellants and Sri K.Madhava Reddy, the learned standing counsel for APSRTC. 3(a). The contentions in the grounds of appeal in nutshell are that the award of the Tribunal in granting a meager compensation is unjust, contrary to law and unsustainable, that it was erred in not taking the earnings of the deceased at Rs.8,000/- (Rupees eight thousand only) per month despite claimed and proved with reference to Ex.A7 salary certificate issued by PW.2 and deposed by PW.2 of employee in his registered business evidenced by Ex.A8 and thereby sought to allow the appeal as prayed for. 3 (b) Learned standing counsel for APSRTC contending that the award of the tribunal is just and after consideration of the material on record rightly arrived and assessed the earnings of deceased and for this Court while sitting in appeal there is nothing to interfere much less to enhance the claim amount and prayed to dismiss the appeal claim as unsustainable. 4. Now the points that arise for consideration in the appeal are: 1. Whether the compensation awarded by the Tribunal is not just and requires interference by this Court while sitting in appeal against the award and if so with what enhancement to arrive a just compensation and with what rate of interest? 2. To what result? POINT-1: 5. 4. Now the points that arise for consideration in the appeal are: 1. Whether the compensation awarded by the Tribunal is not just and requires interference by this Court while sitting in appeal against the award and if so with what enhancement to arrive a just compensation and with what rate of interest? 2. To what result? POINT-1: 5. The facts of the case as proved before the Tribunal and not in dispute in this appeal are that, on 30.10.2003 at about 7.30 pm due to the rash and negligent driving of the driver of the APSRTC bus (bearing No. AP 10 Z 8268) which belongs to the respondent, dashed against the Hero Honda Motor Cycle bearing No.AP 13 G 0092 of deceased while proceeding on roadside, due to which the deceased was succumbed to the multiple injuries sustained on the spot. It is also not in dispute that PW.2 evidence and Ex.A7 salary certificate shows the deceased–Rathan Vijay Kumar, aged about 26-30 years as per Ex.A5 Post Mortem report was claimed working as employee, with salary of Rs.8,000/- (Rupees eight thousand only) per month under PW.2; which occurrence is covered by Ex.A1 First Information Report in Cr.No.129 of 2003 under Sections 304-A and 337 IPC, Ex.A2 charge sheet, Ex.A6 M.V.I report and evidence of PW.3 with reference to it. The Tribunal from said evidence on record come to the conclusion that the deceased was working though in Manisha Ladies Corner the salary claimed of Rs.8,000/- per month not correct, hence assessed his salary at Rs.3,000/- p.m = Rs.36,000/- per annum and after deducting 1/3rd towards personal expenses of the deceased, the net annual income comes to Rs.24,000/-, applied the multiplier 17 and arrived total amount of Rs.4,08,000/- against respondent to be entitled by the petitioner Nos.1 and 2. 6. Before coming to decide, what is just compensation in the factual matrix of the case, it is apt to mention the famous quote of Lord Morris that, perfect compensation is hardly possible and money cannot renew a physique or frame that has been battered and shattered, nor relieve from a pain suffered. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and neither be unreasonable, excessive nor deficient. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and neither be unreasonable, excessive nor deficient. There can be no exact uniform rule in measuring the value of human life or limb or sufferance and the measure of damage cannot be arrived at, by precise mathematical calculation, but amount recoverable depends on facts and circumstances of each case. Upjohn LJ in Charle red House Credit Vs Tolly (1963 (2) All.E.R-432)remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry Vs. Cleaver (1969 (1) All.E.R-555)observed that to compensate in money for pain and for physical consequences is invariably difficult without some guess work but noother process can be devised than that of making a monitory assessment. Thus, in most of the cases involving Motor Accidents, by looking at the totality of the circumstances, an inference may have to be drawn and a guess work has to be made even regarding the compensation in case of death for loss of dependency and estate to all claimants; care, guidance, love and affection especially to the children, consortium to the spouse, expenditure incurred for transport and funeral etc., and in case of injured from the nature of injuries, pain and sufferance, loss of earnings particularly for any disability and also probable expenditure that has to be incurred for said injuries sustained from nature of treatment required. The appeal claim herein is thus confined to the quantum from the contention of not correctly taken the multiplicand and multiplier with future prospects in earnings and on the quantum of consortium and funeral expenses etc., in arriving a sum for awarding just compensation. 7. In this regard, it is well laid down by the Apex Court (Three Judges Bench) in the latest expression in Rajesh v. Rajbir Singh (2013 ACJ 1403 = (4) ALT – 35 (SC))at paragraph Nos. 1 and 7 referring to the earlier expressions in Sarla Verma v Delhi Transport Corporation ( 2009 ACJ 1298 )and Nagappa v Gurudayal Singh (2003 ACJ 12)that compensation which appears to it to be just, has to be assessed and awarded by the Tribunal set up under Section 166 of the Act. 1 and 7 referring to the earlier expressions in Sarla Verma v Delhi Transport Corporation ( 2009 ACJ 1298 )and Nagappa v Gurudayal Singh (2003 ACJ 12)that compensation which appears to it to be just, has to be assessed and awarded by the Tribunal set up under Section 166 of the Act. The expression ‘just compensation’ has been explained in Sarla Verma`s case (4thcited supra) holding that the compensation awarded by the Tribunal does not become just compensation merely because the Tribunal considered it to be just. ‘Just compensation’ is an adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. 8. From the above legal position, coming to the factual matrix on quantum of compensation awarded by the Tribunal impugned in the appeal on its correctness concerned; as referred above, the deceased was aged 26-30 years and as per the multipler to be adopted from Apex Court expression in Sarla Verma’s case(4th cited supra) applicable is 17 that was rightly taken by the Tribunal. The dependants are the wife and minor daughter who are only the two claimants and as per Apex Court in Rajesh v. Rajbir Singh, in case of theclaimants are less than three, the deduction for personal expenses of the deceased is half and not 1/3rd thereby the 1/3rd amount deducted by the Tribunal requires modification. As per the said expression of the Apex Court in Rajesh’s case for the person whose age upto 30 years including for daily wage earnings and need not be of salaried employees, there shall be 50% increase towards prospective earnings. Now coming to earnings of the deceased concerned PW.3 deposed in support of PW.1 referring to Ex.A7 salary certificate deposed that the deceased was working in their shop and was earning salary of Rs.8,000/- per month but for the so called certificate, there is no other proof much less by filing sales tax and income tax returns and accounts. Thereby taking into consideration of the Apex Court’s expression in Latha Wadhwa Vs. State of Bihar ( AIR 2001 SC 3218 )in case of non earning member and domestic contribution of house wife it can be assessed at Rs.3,000/- per month. Thereby taking into consideration of the Apex Court’s expression in Latha Wadhwa Vs. State of Bihar ( AIR 2001 SC 3218 )in case of non earning member and domestic contribution of house wife it can be assessed at Rs.3,000/- per month. Thus, the earnings of the deceased as on the date of accident on 30.10.2003 assessed at Rs.3,600/- per month and the future earning capacity with 50% increase there from comes to Rs.1800/- = Rs.5,400/- per month and if half of the amount deducted there from towards personal expenses, the dependency comes to Rs.2,700/- X 12 = Rs.32,400/- per annum X 17 = Rs.5,50,800/- and Rs.25,000/- towards funeral expenses (Rajesh’s case), loss of consortium to 1st claimant of Rs.1,00,000/- (Rajesh’s case), loss of care, guidance and affection to the minor child of Rs.19,000/-, and loss of estate Rs.5,200/- as per the guidelines laid down by the Apex Court in Rajesh (3rd cited supra), in all comes to Rs.7,00,000/- with interest at 7 ½ % per annum. Accordingly, Point-1 is answered. POINT-2: 9. Accordingly and in the result, the appeal is partly allowed by modifying the Award of the Tribunal on quantum of compensation by enhancing the same from Rs.4,08,000/- to Rs.7,00,000/- with interest at 7½% per annum from the date of the claim petition till realization/deposit with notice. Out of said amount, the 1st claimant is entitled to 3/5th share and the claimant No.2 is entitled to 2/5th share. The respondent is directed to deposit the said amount with interest within one month from the date of the petition (after deduction of any amount paid so far pursuant to the award of the Tribunal), failing which the claimants can execute and recover. On such deposit or execution and recovery, claimant No 1, mother is permitted to withdraw the monthly interest on minor’s amount till attaining majority by opening SB account for the bank to directly credit to that account to spend for the welfare and benefit of the minor child including for education and other prospects. The 1st claimant, is permitted to withdraw out of her amount, an amount of Rs.1,50,000/- and rest of the amount the claimants be invested respectively in separate Fixed Deposits (FDs) in a nationalized bank. There is no order as to costs in the appeal. 10. Miscellaneous petitions, pending if any in this appeal, shall stand closed.