Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 399 (AP)

Moniyar Vali Saheb v. APSRTC

2023-02-16

M.GANGA RAO, V.SRINIVAS

body2023
JUDGMENT : (V. Srinivas, J.) 1. These appeals are directed against the order of the Chairman, Motor Vehicle Accident Claims Tribunal-cum-VI Additional District Judge, (FTC), Gooty (hereinafter called as ‘the Tribunal’) in M.V.O.P.No.208 of 2012 dated 22.02.2013. 2. Since these appeals arise out of same accident and as the material facts are common, the same are being disposed of by this common judgment. 3. M.A.C.M.A.No.1497 of 2013 is preferred by the APSRTC. The respondent Nos.1 and 2 herein are parents, respondent Nos.3 and 4 herein are sisters and respondent No.5 herein is the younger brother of Moniyar Ibrahim Khaleelulla (hereinafter called as ‘the deceased’). 4. M.A.C.M.A.No.2936 of 2017 is preferred by the claimants for enhancement of compensation. During pendency of appeal, as per the orders in I.A.No.1 of 2017, the claimants are permitted to amend the claim amount from Rs.50,00,000/- to Rs.1,00,00,000/-. Thus in this appeal, claim is for Rs.1,00,00,000/- The factual matrix in this appeal, according to the claimants is that on 22.01.2012 at about 10.00 p.m, while the deceased was proceeding on his motor cycle from Gooty to Guntakal slowly and carefully and when he reached near Nallaguta in between Pathakothacheruvu-Gollaladoddi Village, APSRTC Bus bearing R.C.No.AP 28 Z 5835, which was coming in opposite direction driven by its driver in a rash and negligent manner at high speed lost control over the same and went to its wrong side and hit the deceased. As a result of which, the deceased fell down and sustained multiple injuries all over his body. Immediately, he was shifted to Government Hospital, Guntakal, where he succumbed to the injuries while undergoing treatment. By the time of accident the deceased was aged 28 years and earning Rs.65,000/- per month as Senior System Engineer in Sourcebits Technologies Private Limited, Bangalore. Being dependents, the claimants filed petition under the Motor Vehicles Act claiming compensation of Rs.50,00,000/- against APSRTC. 5. Counter was filed by the APSRTC denying all the material allegations, stating that the accident was occurred due to the negligence on the part of the deceased but not driver of the APSRTC Bus and hence, they are not liable to pay compensation. 6. The Tribunal settled the following issues for enquiry basing on the material: 1. 5. Counter was filed by the APSRTC denying all the material allegations, stating that the accident was occurred due to the negligence on the part of the deceased but not driver of the APSRTC Bus and hence, they are not liable to pay compensation. 6. The Tribunal settled the following issues for enquiry basing on the material: 1. Whether the accident occurred on 22.01.2012 due to rash and negligent driving of APSRTC Bus bearing No.AP 28 Z 5935 by its driver and caused the death of the deceased ? 2. Whether the petitioners are entitled to compensation? If so, to what amount? 3. To what relief? 7. In the course of enquiry, on behalf of the claimants, PWs.1 and 2 were examined and Exs.A.1 to A.10 were marked. On behalf of the APSRTC, R.Ws.1 to 3 were examined and Exs.B.1 to B.7 were marked. On C-Series, Exs.C.1 to C.3(Service certificate, appointment letter and pay slip) were marked. 8. On the material placed on the record, the Tribunal, having come to the conclusion that the accident occurred due to the rash and negligent driving of the APSRTC Bus, held that claimants are entitled for compensation of Rs.47,28,000/- with costs and with interest at 7.5% per annum from the date of petition till the date of deposit and the respondent shall pay the compensation within one month from the date of order. 9. It is against the said order; these appeals are preferred by the APSRTC and claimants. 10. Heard Sri K.Viswanatham, learned Standing Counsel for APSRTC and Sri K.Rathangapani Reddy, learned counsel for the claimants. 11. Sri K.Viswanatham, learned Standing Counsel for the APSRTC submits that there is a contributory negligence on the part of the deceased in causing the accident but the Tribunal fixed the liability on the driver of the APSRTC Bus only, which is incorrect. He further submits that though it is stated by the H.R.Manager of company that deceased is in probation period, learned Tribunal wrongly calculated the income of the deceased. He further contended that the Tribunal deducted 1/3rd towards personal expenses of the deceased instead of 50%, which is against the principle laid down in Sarla Verma v. Delhi Transport Corporation, AIR 2009 (SCW) 4992 , and ought to have consider Form-16 and IT returns. He also further submits that the Tribunal ought to have taken the interest @ 6% instead of 7.5%. 12. He also further submits that the Tribunal ought to have taken the interest @ 6% instead of 7.5%. 12. On the other hand, Sri K.Rathangapani Reddy, learned counsel for the claimants, submits that the Tribunal has not taken the correct multiplier while awarding the compensation. He further submits that future prospects was not calculated as per the judgment of the APEX Court laid down in National Insurance Company Limited v. Pranay Sethi, 2017 (6) ALT 60 (SC). The learned counsel also submits that the deceased worked as Senior System Engineer in Sourcebit Technologies Private Limited and drawing a salary of Rs.72,000/- p.m. But the Tribunal while computing the compensation, it has taken into consideration the age of the mother of the deceased (mulitiplicand is mentioned as 8) instead of age of the deceased, who is aged about 25 years at the time of his death and hence, the age of the deceased has to be taken into consideration for calculating the compensation as well future prospects. 13. Now, on hearing both sides, the following points that arises for determination are: 1. Whether there is any contributory negligence on the part of the deceased? 2. Whether the compensation awarded to the claimants is just compensation? and 3. To what relief? 14. 13. Now, on hearing both sides, the following points that arises for determination are: 1. Whether there is any contributory negligence on the part of the deceased? 2. Whether the compensation awarded to the claimants is just compensation? and 3. To what relief? 14. POINT No.1: The documents placed on record goes to show that the accident occurred due to rash and negligent driving of the driver of the APSRTC bus alone as per Ex.A.5 Charge Sheet and no other record placed to trash the contention of the claimants and the reasons as follows: There is no dispute that the accident in question that occurred on 22.01.2012 at about 10.00 p.m., near Nallaguta in between Pathakothacheruvu-Gollaladoddi Village, the APSRTC Bus bearing R.C.No.AP 28 Z 5835, came from opposite direction in a rash and negligent manner at high speed and lost control over the same and went on wrong side and hit the deceased and P.W.1 who is father of the deceased spoke in petition as well in evidence assertively that he was travelling behind the Tata Sumo and witnessed the incident and he is eye witness for the accident and that nothing culled out in the cross examination to disbelieve his evidence contrary to his statement on oath as well in the evidence and that he further stated that the deceased sustained multiple injuries all over the body and his son succumbed to injuries and flatly denied the version of APSRTC that while overtaking a lorry in front of the bike the accident occurred. As a result of which, the deceased died while undergoing treatment. 15. The evidence placed on record shows that the drivers of the APSRTC Bus/R.Ws.1 and 2 admitted that the criminal case was registered against them vide Ex.A.1-F.I.R. for the rash and negligent driving. After conducting thorough investigation, Ex.A.5 charge sheet was filed against driver of the bus. Admittedly, at the time of accident, the driver of the APSRTC bus came from opposite direction and hit the deceased. No evidence is placed on record to show that the accident occurred due to the negligence of the deceased also. On the other hand, the claimants placed Ex.A.1- F.I.R and Ex.A.5-Charge Sheet to prove the negligence on the part of the driver of the Bus. It is further established that from Ex.A.4- M.V.I. Report, there is no mechanical defect to the crime vehicle. On the other hand, the claimants placed Ex.A.1- F.I.R and Ex.A.5-Charge Sheet to prove the negligence on the part of the driver of the Bus. It is further established that from Ex.A.4- M.V.I. Report, there is no mechanical defect to the crime vehicle. The Post Mortem Report (Ex.A.3) clearly indicates that deceased appears to have died of hemorrhagic shock due to rupture of spleen and left lung. The investigation report (final report-charge sheet) inspiringly proves that the accident occurred only due to hitting the bike of the deceased in opposite direction in a rash and negligent manner. 16. In view of the foregoing discussion and on analyzing the factual aspects placed on record, we are of the opinion that the accident was occurred only due to rash and negligent driving of driver of the APSRTC Bus and there is no contributory negligence on the part of the deceased. More over, there is no evidence placed on record before the Tribunal or before this Court showing that there is negligence on the part of the deceased while driving the bike and it is for the APSRTC to establish the said fact. Thus, this point is answered against the APSRTC. 17. POINT NO.2: In this point, it has to be seen that whether there is any flaw on the part of the Tribunal to arrive at just compensation while awarding the same. The Tribunal accepted the evidence of P.W.2, H.R.Manager of the company of the deceased, who is uninterested and competent person to speak about the income of the deceased and opined that there is no need to P.W.2 being HR Manager in Sourcebit Technologies Private Limited, Bangalore, to give false evidence and to issue document like Ex.A.6 Salary Certificate. It is not disputed that the deceased was working as Senior System Engineer and drawing a salary of Rs.71,338/- which is rounded to Rs.72,000/- p.m. as per the salary certificate –Ex.A6. Even Exs.B.3 to B.6 documents (Salary slip, Form-16, Form-12BA and Annexure for Form-16, which are said to be obtained by the respondents from the employer of the deceased) are supporting the contents in Ex.A.6 Salary Certificate. 18. The learned Standing Counsel for APSRTC categorically admitted that there is no settled legal position to look into Form-16 alone and salary slip cannot be based while fixing the income of the deceased. 18. The learned Standing Counsel for APSRTC categorically admitted that there is no settled legal position to look into Form-16 alone and salary slip cannot be based while fixing the income of the deceased. Based on which, the Tribunal rightly came to the conclusion that the deceased was earning Rs.72,000/-(rounded up) p.m. and Rs.8,64,000/- p.a by the date of his death working as Senior Systems Engineer in Sourcebit Technologies Private Limited, Bangalore. 19. As can be seen from the evidence on record, the claimants let in evidence that the deceased was a qualified Engineer and he was working in a reputed Company. With experience, he would have got better opportunities and earn more salary. He would have spent more towards maintenance of his parents with passage of time. 20. As per the decision of the Constitution Bench of the Apex Court judgment reported in Pranay Sethi’s case (referred to supra), which is relied on by the claimants, the deductions towards personal and living expenses of the deceased, held at Paragraph No.39 as follows: 39. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible from Sarla Verma, Reshma Kumari, Rajesh and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, 31 and 32, Sarla Verma lays down:- “30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this (2003) 3 SLR (R) 601 Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger nonearning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” 21. As per the Pranay Sethi’s case(referred to supra), by fortifying Sarla Verma’s case (referred to supra), while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 22. In the present case as per the above said decision 50% of actual salary has to be added to the income of the deceased towards future prospects as the victim is in the age group below the age of 40 years. Actual salary should be read as actual salary less tax. 22. In the present case as per the above said decision 50% of actual salary has to be added to the income of the deceased towards future prospects as the victim is in the age group below the age of 40 years. After adding 50% to the income of the deceased towards future prospects, his income is determined at Rs.12,96,000/-(Rs. Rs.8,64,000/- + Rs.4,32,000/-). 23. In the case on hand, since the deceased is a bachelor as per the ratio laid down in the Apex Court Judgment in Pranay Sethi’s case(referred to supra, 50% has to be deducted from the income of the deceased towards personal and living expenses. 24. The learned counsel for the claimants submits that where the family of the deceased bachelor is large and depend on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to 1/3rd and contribution to the family will be taken as 2/3rd, as per Paragraph No.32 of Sarla Verma’s case. 25. In the present case, the above specific large number of dependents were not depending on the deceased to invoke the above legal position and the appropriate deduction for personal and living expenses in this case is only 50%. Thus, the quantum is determined as Rs.6,48,000/- (Rs.12,96,000/2). 26. The claimants also relied upon the decision of the Hon’ble Supreme Court in Rajesh v. Rajbir Singh, (2013) 9 SCC 54 , wherein at Paragraph No.16 held as follows: 16. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/court has a duty, irrespective of the claims made in the application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation. 27. Thus, on that ground also we hold that the Tribunal/court has a duty, irrespective of the claims made in the application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation. 27. Regarding just compensation, in a decision of Hon’ble Supreme Court in Sandeep Khanuja vs Atul Dande, 2017 (3) SCC 315, at Paragraph Nos.11 and 12 held as follows : 11………it is now a settled principle, repeatedly stated and restated time and again by this Court, that in awarding compensation the multiplier method is logically sound and legally well established. This method, known as 'principle of multiplier', has been evolved to quantify the loss of income as a result of death or permanent disability suffered in an accident……... 12……… While applying the multiplier method, future prospects on advancement in life and career are taken into consideration. In a proceeding under Section 166 of the Act relating to death of the victim, multiplier method is applied after taking into consideration the loss of income to the family of the deceased that resulted due to the said demise. Thus, the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimant, as the case may be……. ……. there should be no departure from the multiplier method on the ground that Section 110-B, Motor Vehicles Act, 1939 (corresponding to the present provision of Section 168, Motor Vehicles Act, 1988) envisaged payment of ‘just’ compensation since the multiplier method is the accepted method for determining and ensuring payment of just compensation and is expected to bring uniformity and certainty of the awards made all over the country.”……. 28. In Pranay Sethi’s case (referred to supra) at Paragraph No.38 discussed about the judgments of Reshma Kumari, which is three (3) judge Bench agreed with multiplier determined in Sarala Verma and for better appreciation, paragraph No.38 reproduced hereinunder: 38. In Reshma Kumari, the three-Judge Bench agreed with the multiplier determined in Sarla Verma and eventually held that the advantage of the Table prepared in Sarla Verma is that uniformity and consistency in selection of multiplier can be achieved. It has observed:- “35. In Reshma Kumari, the three-Judge Bench agreed with the multiplier determined in Sarla Verma and eventually held that the advantage of the Table prepared in Sarla Verma is that uniformity and consistency in selection of multiplier can be achieved. It has observed:- “35. … The assessment of extent of dependency depends on examination of the unique situation of the individual case. Valuing the dependency or the multiplicand is to some extent an arithmetical exercise. The multiplicand is normally based on the net annual value of the dependency on the date of the deceased’s death. Once the net annual loss (multiplicand) is assessed, taking into account the age of the deceased, such amount is to be multiplied by a “multiplier” to arrive at the loss of dependency.” 29. Thus, from the judgment referred to above, it is clear that while computing the compensation, the age of the deceased alone has to be taken into account but not the age of mother of the deceased. The appropriate multiplier applicable to the age of the deceased i.e., 28 years is 17. The Tribunal went wrong in taking the age of the mother of the deceased in computing the compensation. Thus calculated, the total loss of dependency is determined at Rs.1,10,16,000/- (Rs.6,48,000/- x 17). 30. Apart from that as per the decision of the Cconstitution Bench of the Apex Court judgment in Pranay Sethi’s case (referred to supra), an amount Rs.15,000/- towards funeral expenses and Rs.15,000/- towards love and affection are awarded. Thus, the total compensation awarded to the claimants would be Rs.1,10,46,000/-. 31. So far as the interest is concerned, the Tribunal has awarded the interest at 7.5% per annum from the date of claim petition till the date of payment. The same is opposed by the learned Standing Counsel for the APSRTC, stating that the interest has to be scaled down to 6% only. On this aspect, the Apex Court in Tamil Nadu State Transport v. S.Rajapriya, 2005 Law Suit SC 742, taking note of the prevailing rate of interest in bank deposits, the same is fixed at 7.5% per annum. Even in other judgments also, the Apex Court followed the same principle is followed Even in this case also, the Tribunal awarded interest at 7.5% p.a. and the same cannot be interfered with in view of the above ruling. 32. Even in other judgments also, the Apex Court followed the same principle is followed Even in this case also, the Tribunal awarded interest at 7.5% p.a. and the same cannot be interfered with in view of the above ruling. 32. A brief exposition of the calculation made to arrive at the compensation is set out infra: S.No. Heads Calculation 1 The annual income of the deceased. Rs.8,64,000/ per annum 2 50% of above(1) to be added as future prospects (Rs.8,64,000/- + Rs.4,32,000/-) Rs.12,96,000/- 3 50% to be deducted as personal expenses of deceased. Rs.6,48,000/-. 4 Compensation arrived at on application of multiplier 17. (Rs.6,48,000/- x 17) Rs.1,10,16,000/- 5 Loss of estate Rs.15,000/- 6 Funeral expenses Rs.15,000/- Total compensation awarded(Rows 4+5+6) Rs.1,10,46,000/- 33. Further it is settled law that under the provisions of the Motor Vehicle Act, 1988, there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record, if Tribunal considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. There is no embargo to award compensation more than that claimed by the claimant. Rather it is obligatory for the Tribunal and Court to award ‘just Compensation’, even if it is in the excess of the amount claimed. This settled position is followed from the decision of the Supreme Court reported in Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 . 34. Therefore, in view of the forgoing discussion, we are of the opinion that the award passed by the Tribunal warrants interference by enhancing the compensation from Rs.47,28,000/- to Rs.1,10,46,000/-. Thus, this point is answered in favour of appellants/claimants. 35. POINT No.3: In view of the findings on point Nos.1 and 2, the order passed by the Tribunal warrants interference regarding quantum of compensation only and with regard to the remaining aspects there is no need to disturb the well articulated order passed by the Tribunal. As such, the appeal filed by the APSRTC is liable to be dismissed and the appeal filed by the claimants is liable to be allowed. 36. In the result, the M.A.C.M.A.No.1497 of 2013 is dismissed. There shall be no order as to costs. 37. As such, the appeal filed by the APSRTC is liable to be dismissed and the appeal filed by the claimants is liable to be allowed. 36. In the result, the M.A.C.M.A.No.1497 of 2013 is dismissed. There shall be no order as to costs. 37. The M.A.C.M.A.No.2936 of 2017 is allowed enhancing the compensation from Rs.47,28,000/- to Rs.1,10,46,000/- with interest at 7.5% per annum, with proportionate costs from the date of petition till the date of realization against the respondent (APSRTC). The respondent shall deposit the compensation amount within two months from the date of this judgment. The appellants/claimants shall pay the requisite Court-fee in respect of the enhanced amount awarded over and above the compensation claimed. Rest of the directions given by the Tribunal with regard to the apportionment of the compensation between the claimants and their entitlement in withdrawing the amount, shall remain unaltered. 38. The impugned order of the Tribunal stands modified to the aforesaid extent and in the terms and directions as above. 39. Interim orders granted earlier if any, stand vacated. 40. Miscellaneous petitions pending if any, stand closed.