High Court · 2009

Judgment

1. The appellants-claimants preferred this appeal questioning adequacy or other wise of the compensation awarded in the Award and decree dated 31.01.2007 in MVOP.No.671 of 2005 on the file of learned Chairman, Motor Vehicle Accident Claims Tribunal-cum- V Additional District and Sessions Judge, Tirupathi. In the said claim petition, the Tribunal awarded compensation of Rs.2,47,125/- against total claim of Rs.5,00,000/- together with interest at 7.5% per annum from the date of petition till the date of realization besides directing the respondent-APSRTC to deposit the compensation amount within two months from the date of the Award.

2. The contention of the appellants is that the Tribunal having held that the accident occurred due to the rash and negligent driving of the driver of the bus, ought to have awarded the total claim of Rs.5,00,000/- instead of Rs.2,47,125/-. Further contended that the deceased was an agriculturist and doing seasonal vegetable business and was earning Rs.4,000/- per month and Rs.20,000/- per annum from the seasonal business and Rs.20,000/- from agriculture. In view thereof, the Tribunal ought to have held that the claimants are entitled to the claimed amount. It was further contended that the Tribunal erred in granting interest at 7.5% per annum and in fixing the liability at the ratio of 25:75%. 2

3. The claim of the claimants/appellants in brief is as follows: On 12.7.2005 at about 9.50 PM the deceased G.Narasimha Reddy was going along with E.Damodhar Reddy in the tractor and trailer bearing Nos. AP 02/T 0810 and 0811 along with agricultural water pipes and cement sheets from Chittoor to his native village and when the said tractor was proceeding near Immanuel Ashramam, near Etteri village, GD Nellore Mandal, on Chittoor-Puttur main road, and on the left side of the road, the driver of APSRTC bus bearing No. AP 09Z 8968 drove the bus in rash and negligent manner and dashed against the tractor from opposite direction. Due to the sudden impact, the tractor and trailer detached and the said G.Narasimha Reddy sustained grievous and died on the spot.

4. The

first appellant/claimant the wife, second appellant/claimant is the minor son and third appellant/claimant is the mother of the deceased G.Narasimha Reddy and they are all depending on him.

5. Before the Tribunal, the respondent filed counter alleging that the driver of the bus bearing No. AP09Z 8968 was proceeding from Puttur to Chittor and when the bus reached near Etteri Immanuel Ashramam, the driver of the bus observed that the tractor was coming in opposite direction with single light in a zigzag manner. Then he slowed down the bus, but the driver of the tractor drove the vehicle in rash and negligent manner and dashed the bus. Due to the negligence of the driver of the tractor, 3 the accident occurred. The driver of the bus is not responsible for the accident and the respondent is not liable to pay compensation to the claimants.

6. Basing on the rival contentions, the Tribunal framed the following issues for settlement. a) Whether the deceased G.Narasimha Reddy died in the Motor Vehicle Accident that took place due to the rash and negligent driving of the Bus bearing No. AP 09Z 8968 by its driver on 12.07.2005 ? b) What was the age and income of the deceased on the date of the death ? c) Whether the petitioners are entitled for compensation ? If so, to what amount ? d) To what relief ?

7. In order to prove respective claims, appellants/claimants examined P.Ws.1 and 2 and got marked Exs.A.1 to A.5 on their behalf. On behalf of the respondents, R.W.1 was examined, however, no documents were got marked.

8. Now the point that arises for determination in the appeal is, whether the Award is suffering from any legal infirmities warranting interference by this Court. ?

9. Learned Counsel the appellants/claimants contended that the Tribunal erred in fixing the liability in the ratio of 25:75 between the deceased and respondent and awarding compensation of Rs.2,47,125/- against total claim of Rs.5,00,000/-. 4

10. The first appellant/claimant, who is the wife of the deceased G.Narasimha Reddy was examined as P.W.1. Her evidence is that she is the wife of the deceased, mother of second appellant/claimant. There is no cross examination of P.W.1 with regard her relationship with the deceased and income of the deceased. Thus the unimpeachable evidence of P.W.1 established the relationship between her and the deceased as wife and husband ; mother of the second appellant/claimant and mother-in-law of the third appellant/claimant, who is the mother of the deceased.

11. In the chief affidavit of P.W.1 she reiterated the contents of the claim petition. During the cross examination, she admitted that she was not the eye witness to the accident. Therefore her evidence with regard to manner in which the accident occurred is of no use.

12. P.W.2 is the direct witness to the accident. His evidence is that on 12.07.2005 at about 9.50 PM himself and the deceased-G.Narasimha Reddy were coming from Chittoor in a tractor and trailer bearing Nos. AP 02T 0810 and 0811 along with agricultural water pipes and cement sheets and when the said tractor came near Immanual Ashram, near Etteri village, G.D. Nellore Mandal on Chittoor-Puttur main road and when it was coming slowly on extreme left side of the road, the driver of the APSRTC bus bearing AP 09Z 8969 came in opposite side very rashly and negligently with high speed, and, unable to control the 5 speed, it dashed against the tractor, due to which, the tractor detached the trailer and the trailer went and fell down in one side and the tractor gone away to the other side of the road. P.W.2 was cross examined at length. It is his evidence in the cross examination that himself and deceased are not related to each other, but they were the residents of neighbouring villoages. Both P.W.2 and deceased went to Chittoor on tractor and purchased ACC cement sheets and PVC pipes for agricultural purpose and returned to their respective villages. Ex.A.1-is the copy of FIR, Ex.A.5-is the Charge sheet and Ex.A.4 is the MVI report. A perusal of Ex.A.1 goes to suggest that P.W.2 gave report to the police on 13.07.2005 at 5.30 AM in respect of the accident occurred on 12.07.2005 at 9.50 PM wherein it was clearly mentioned that when P.W.2 along with the deceased returned from Chittoor on 12.07.2005 on the tractor and trailer bearing Nos. AP 02T 0810 and 0811 along with agricultural water pipes and cements sheets, and when the said tractor reached Immanual Ashramam, near Etteri village, GD Nellore Mandal, the APSRTC bus bearing No. AP 9Z 8968 plying from Puttur to Chittoor, being driven in rash and negligent manner in high speed, dashed against the tractor which was coming in opposite direction, due to which, the tractor detached the trailer and the trailer went and fell down in one side and the tractor gone away to the other side of the road. P.W.2 sustained injuries and the other person, Narasimha Reddy who was present in the tractor died on the spot 6 itself. On enquiry, it came to light that one K.Ghambeeram was the driver of the said APSRTC bus. The Investigating Officer after thorough investigation filed charge sheet in Ex.A.5 against the said K.Ghambeeram finding that on 12.07.2005 at 9.50 PM on Chittoor-Puttur road near Immanual Ashramma, Etteri village, GD Nellore Mandal, the accused/K.Ghameeram/driver of the APSRTC bus bearing No. AP 9Z 8968 plying Puttor-Chittor service, while proceeding towards Chittoor in rash and negligent manner in high speed dashed against the opposite coming Tractor bearing No. AP 02 T 0810 and trailer No.AP 02T.0811 resulting which the tractor and trailer were detached and the said bus dashed to a tamarind tree situated on the western side, resulting which, P.W.2 and others sustained injuries and the deceased G.Narasimha Reddy succumbed to the injuries on the spot. It was recorded therein that the accident occurred due to the rash and negligent driving of the driver of the APSRTC bus.

13. Ex.A.4 is the Motor Vehicle Inspector(cid:146)s report wherein the Motor Vehicle Inspector opined that the accident was not due to any mechanical defect of the tractor and trailer or the APSRTC bus. In the inquest report Ex.A.3 the inquestdars opined that the deceased-G.Narasimha Reddy succumbed to injuries sustained in the accident occurred on 12.07.2005 involving APSRTC bus and tractor & trailer.

14. Against the evidence of P.W.1 and Exs. A.1,A3 to A.5, there is rebuttal evidence of R.W.1-K.Gambeeram who he 7 deposed that while he was driving the bus bearing No. AP 9Z 8969 from Puttor to Chittoor and when the bus reached Etteri Emmanuel Ashram, the accident occurred. He deposed that at the time of accident, the tractor and trailer was coming in opposite direction from Chittoor to go to Tirupathi in a zig zag manner with one head light on its left side burning. At that time another jeep overtook his bus. He could not notice that it is a tractor due to burning of only one head light on its left side. Then he thought it as a two wheeler. As the tractor driver dove it in zig zag and rash & negligent manner, its trailer dashed against the bus. He could not observe the tractor in the darkness and could not control the bus as the tractor suddenly hit the RTC bus.

15. It is clear from the evidence of P.W.1 that the bus came in opposite direction and hit the tractor from its front side. It is also specifically asserted in Ex.A.1-FIR and in the Charge Sheet, Ex.A.5 that the accident occurred due to rash and negligent driving of the driver of APSRTC bus bearing No. AP 9Z

16. The Tribunal believed the evidence of RW.1 that at the time of accident the tractor was coming in opposite direction in zigzag manner with one head light on its left side and he could not notice that there is a tractor due to burning of only one head light on its left side and that the tractor driver drove it in zigzag and rash & negligent manner and dashed against the bus. He could not observe the tractor in dark and could not control the bus as the 8 tractor suddenly hit the bus. The Investigating Officer under Ex.A.5 recorded that the accident occurred due to rash and negligent driving of the driver of RTC bus and in that accident P.W2 and others sustained injuries and the deceased died on the spot.

17. The evidence of RW.1 is different to the evidence discussed by the Tribunal in the above paragraph. R.W.1 in his evidence deposed that at the time of accident, another zeep over took the bus and he could not notice that the tractor is coming in opposite direction due to burning of only one head light on its left side. The tractor driver drove it in zigzag and rash & negligent manner, due to which, its trailer dashed against the bus. According to the Motor Vehicle Inspector, the trailer of the tractor hit the bus as the driver of it drove it in rash and negligent manner. This fact is not discussed by the Tribunal in its judgment. A perusal of the MVI report goes to show that (cid:145)due to accident by APSRTC bus bearing No.AP 09Z 8968 bus front side shape and front side top of the vehicle were damaged. Wind shape glass, both sides head lights, steering wheal were damaged. The tractor rear engine side tyre was displaced and glass was damaged. Front right side chassis was bended(cid:148). The evidence of PW.2 that RTC bus came in opposite direction and hit the tractor from its front side. It is also the evidence that the trailer detached from the tractor and that the front side of the bus was damaged which clearly shows that the accident occurred due to negligence of the driver of the RTC bus. If really the tractor and trailer dashed the 9 bus while it was driving in zigzag manner there would not be any damage to the tractor and damage should only to the trailer and that too, the right side of the bus should be damaged, but not front side of the bus. There is absolutely no iota of evidence and material to establish that the tractor was driven in rash and negligent manner by its driver at the time of accident. In such circumstances, I have no hesitation to hold that the finding of the Tribunal that that the driver of the tractor and driver of the RTC bus was responsible for the accident in the ratio of 25: 75 is perverse and has no reason or basis and not supported by any oral or documentary evidence and hence the same is liable to be set aside. Accordingly I find based on the evidence of P.W.2 and supported evidence at Exs. A.1,A.3 to A.5 that the accident occurred due to rash and negligent driving of the driver of the RTC bus bearing No. AP 09Z 8968 and that there is no iota of evidence of contributory negligence on the part of the driver of the tractor and trailer bearing Nos. AP 02T 0810 and 0811. Accordingly the issue is answered in favour of the appellants/claimants and against the respondents.

18. Coming to the compensation, the evidence of P.W.1 is that the deceased husband was doing agricultural work and seasonal business like vegetables etc., and earning a sum of Rs.4,000/- per month on seasonal business and Rs.20,000/- per annum in agricultural works and contributing the same to his family. 10

19. It is not clear from the Tribunal discussion and the material placed before it to prove as to what was the income of the deceased. There is no material adduced to prove as to what type land which the deceased possessed. Further possessed by the deceased still remains with the claimants as his legal heirs. There is however a possibility that the claimants may be required to engage persons to look after agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered. Furthermore, there was no material before the Tribunal to arrive at the figure of Rs. 4000 per month on vegitable business and Rs.20,000/- per annum from the agriculture and contributed the same to family.

20. The Tribunal while assessing the compensation should be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense of "damages" which in turn appears to it to be ’just and reasonable’. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza: not a source of profit; but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the 11 various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just.( See Helen C. Rebello v. Maharashtra State Road Transport Corporation: AIR1998SC3191 )

21. As discussed supra, absolutely there is no piece of paper showing the income of the deceased. During the cross examination of P.W.1, she admitted that she has not filed any document to show that her husband was doing seasonal business and getting Rs.4000/- per month and getting Rs.20,000/- per annum through agriculture and in the absence of any such proof on income, the Tribunal is quite reasonable in assessing the income of the deceased at Rs.3,000/- per month and annually at Rs.36,000/-. 12

22. With regard to the age of the deceased, absolute there is no document produced by the claimants in regard thereto. In Ex.A.2-Post Mortem Certificate, Ex.A.3-Inquest report and Ex.A.4-MVI report, the age of the deceased was noted as 45 years. Accordingly the Tribunal considered the age of the deceased as 45 years as on the date of accident and applying the relevant multiplier (cid:145)13(cid:146). But according to the decision of the Apex Court in Smt. Sarla Verma and Ors.Vs.: Delhi Transport Corporation and Anr (2009ACJ1298), multiplier (cid:146)14(cid:146) is applicable for the age group of 41 to 45 years and therefore the multiplier applied by the Tribunal has to be modified. Accordingly I consider it just and appropriate to held that as the deceased was aged 45 years as on the date of accident, the appropriate multiplier applicable is (cid:145)14(cid:146). Since the claimants are three in number, 1/3rd has to be deducted from the income of the deceased towards his personal expenses. Then the contribution to the family would come to Rs.2000/- per month or Rs.24,000/- per annum. On applying multiplier (cid:145)14(cid:146), the normal compensation on account of loss of dependency works out to be Rs.24000/- x 14 = Rs.3,36,000/-.

23. As per the decision of the Apex Court in NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND Ors( 2017 CJ 2700), under conventional heads, namely, loss of estate, loss of consortium and funeral expenses, appellants/claimants are entitled receive Rs.15,000/-, 13 Rs.40,000/- and Rs.15,000/- respectively. Further, it is just and reasonable to award Rs.2,000/- towards transportation since the Tribunal has not awarded any compensation under the aforesaid head. Thus, in all, the appellants/claimants are entitled to receive the total compensation of Rs.4,08,000/-.

24. Further, contention appellants/claimants that the rate of interest awarded by the Tribunal at 7.5% per annum is on lower side and it should have granted more interest. The Court has to take judicial notice of the facts that, nationalized banks are not offering interest at 9% p.a. even long term F.D.Rs. now-a-days. From the settled propositions of law including from the settled expression of the Apex Court in TN TRANSPORT CORPORATION v. RAJAPRIYA {(2005) 6 SCC 236 (2JB)}, RELIANCE GENERAL INSURANCE COMPANY LIMITED vs. S. SUNITHA AND Ors. (13.04.2016 - APHC) taking note of steep fall in bank lending rates in the recent past, the interest awarded at 9%p.a. was reduced to 7.5%p.a. as just and reasonable; though in SARLA VERMA v. DELHI TRANSPORT CORPORATION (2009 ACJ 1298) interest awarded is only at 6%p.a. and in the latest expression of the three judge Bench of the Apex Court in RAJESH v. RAJBIR SINGH: {2013(4)ALT 35(SC)}, it is held categorically that it is reasonable to award rate of interest at 7.5% p.a.. In view of the above legal position, the interest awarded by the Tribunal at 7.5% per annum is just and appropriate and hence, need not be interfered with. 14

25. As discussed in the earlier paragraphs, since the accident occurred solely due to rash and negligent driving of the driver of the APSRTC bus bearing No. AP 09Z 8968, the respondent alone is responsible to pay the entire compensation to the appellants/claimants.

26. For the foregoing discussion and in the result, the appeal is partly allowed, with proportionate costs, setting aside and modifying the Award and decree dated 31.01.2007 in MVOP.No.671 of 2005 on the file of learned Chairman, Motor Vehicle Accident Claims Tribunal-cum- V Additional District and Sessions Judge, Tirupathi and awarding total compensation of Rs.4,08,000/- with interest at 7.5% per annum from the date of petition i.e. 2.12.2005 till the date of deposit.

27. Out of the total compensation, Rs.2,33,000/- apportioned to the first appellant/first claimant, Rs.1,00,000/- is apportioned the second appellant/second claimant and Rs.75,000/- is apportioned to the third appellant/third claimant.

28. The respondent is directed to deposit compensation awarded herein above within thirty days from the date of receipt of a copy of this judgment, adjusting the amount if any already paid or deposited.

29. On such deposit being made, the first appellant/first claimant and third appellant/third claimant are permitted to withdraw their share amount. The second appellant/second 15 claimant being the minor, his share amount shall be kept in any nationalized bank till he attains majority and on attaining the majority, he is at liberty to make an application seeking permission to withdraw his share amount according to his need and necessity.

30. Advocate fee is fixed at Rs.2,500/-.

31. Miscellaneous petitions pending consideration if any in the appeal shall stand closed in consequence. ------------------------------- JUSTICE N. BALAYOGI DATED 23rd JANUARY, 2018. Msnrx