Akella Vishala & Anr vs Sirigineedi Venkata Ramesh & 2 Ors

Aggrieved by the order dated 15.5.2014 in CC/103/2010 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission (in short, "the State Commission") the Complainants preferred this Appeal under Section 19 of the Consumer Protection Act, 1986 seeking enhancement of the compensation awarded by the State Commission. By the impugned order the State Commission has awarded an amount of Rs.7,00,000/- to be paid to the first Complainant/mother of the deceased and Rs.3,50,000/- to be paid to the second Complainant/father of the deceased by Opposite Parties 1 to 3 jointly and severally.

Facts, in brief, are that the Complainants' son, a B-Tech 3 rd year student in the 2 nd Opposite Party College was travelling in the bus organized by the Engineering College which had a capacity of 42 passengers for campus interviews. While so, the driver stopped the bus on the side of the road and requested for arrangement of another bus, but which time, the first Opposite Party set on the driver seat without the knowledge of the driver and drove it at a high speed in a rash and negligent manner, as a result of which bus met with an accident and hit the stationed lorry, because of which the Complainants son, namely, Hemanth and one Kollipara Venkata Jayalakshmi died on the spot. It is averred that 15 other students sustained severe injuries.

It is averred that the Complainants lost their only son who was 19 years old and would have completed his engineering course next year and was actually going to attend some campus interview and that he could have earned Rs.50,000/- per month had he been alive.

The first Opposite Party did not choose to contest the claim despite service of notice. The second and third Opposite Parties resisted the claim stating that the student was a gratuitous passenger; that the second and third Opposite Parties did not permit the first Opposite Party to drive the bus; that the College had taken the students only as a goodwill gesture to attend H.R. Summit at Kakinada; that the bus was initially entrusted to Mr. G. Sudarshan Rao, who was authorized to drive heavy passenger vehicle and, therefore, there was no deficiency in service on their part. It is further averred that the Complainants preferred claim before the Motor Accidents Claims Tribunal and, therefore, cannot claim benefit in both the Fora and have to restrict their claim in one Fora.

Based on the evidence adduced i.e. Ext. A-1 to A-34 filed on behalf of the Complainants and Ext. B-1 to B-6 on behalf of the Opposite Parties, the State Commission allowed the Complaint in part awarding the afore-noted amounts. The State Commission has observed that the master is vicariously liable for fault or deficiency in service by its employee during the course of employment.

Learned Counsel appearing on behalf of the Complainants submitted that while holding the Opposite Parties deficient in their service in allowing a coordinator to drive the bus who is not authorized to do so, State Commission has allowed only an amount of Rs.10,55,000/- by basing its calculation on Rs.10,000/- per month as probable earnings of the B-Tech third years student. Learned Counsel placed reliance on the judgment of Hon'ble Supreme Court in Ashvinbhai Jayantilal Modi vs. Ramkaran Ramchandra Sharma IV (2014) ACC 1 (SC), in which it was observed as follows: -

"9. We have heard the learned counsel for the parties. In our considered view, the deceased was 19 years old and was pursuing his medical degree with good marks at the time of the accident. With respect to the future income of students pursuing professional courses we refer to Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Anr., (2010) 10 SCC 254 wherein this Court held as under:-

"14. On completion of Bachelor of Engineering (Mechanical) from the prestigious institute like B.I.T., it can be reasonably assumed that he would have got a good job. The appellant has stated in his evidence that in the campus interview he was selected by Tata as well as Reliance Industries and was offered pay package of Rs. 3,50,000/- per annum. Even if that is not accepted for want of any evidence in support thereof, there would not have been any difficulty for him in getting some decent job in the private sector. Had he decided to join government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rs.60,000/- per annum. Wherever he joined, he had a fair chance of some promotion and remote chance of some high position. But uncertainties of life cannot be ignored taking relevant factors into consideration. In our opinion, it is fair and reasonable to assess his future earnings at Rs.60,000/- per annum taking the salary and allowances payable to an Assistant Engineer in public employment as the basis...."

The Tribunal and the High Court have not taken into proper consideration that the deceased was a student of medicine at the time of the accident while determining his future income. The courts below have wrongly ascertained the future income of the deceased at only Rs.18,000/- per month, which in our view is too less for a medical graduate these days. Therefore, the courts below have failed in following the principles laid down by this Court in this aspect in the above case. The deceased was a diligent and outstanding student of medicine who could have pursued his M.D. after his graduation and reached greater heights. Today, medical practice is one of the most sought after and rewarding professions. With the tremendous increase in demand for medical professionals, their salaries are also on the rise. Therefore, we have no doubt in ascertaining the future income of the deceased at Rs.25,000/- p.m. i.e. Rs.3,00,000/- p.a. Further, deducting 1/3rd of the annual income towards personal expenses as per Oriental Insurance Co. Ltd. v . Deo Patodi and Ors4, and applying the appropriate multiplier of 13, keeping in mind the age of the parent of the deceased, as per the guidelines laid down in Sarla Verma case (supra), we arrive at a total loss of dependency at Rs.26,00,000/-[(Rs.3,00,000/- minus 1/3 X Rs.3,00,000/-)X 13]."

Learned Counsel for the Respondents No.2 & 3 vehemently argued that the Complainants cannot be unduly enriched as the amount of Rs.10,55,000/- was already paid to the Complainants; that OP No.369/2009 was preferred before the Motor Accidents Claims Tribunal in August, 2009 itself; that the Complainants had withdrawn an amount of Rs.6 lakhs and Rs.7 lakhs respectively in two Appeals preferred by the Insurance Company before Hon'ble High Court of Andhra Pradesh. Learned Counsel also submitted that the Complainants having filed OP/369/2009 could not have approached the Consumer Commission for seeking similar reliefs and, therefore, the State Commission has erred in adjudicating the Complaint when it did not have jurisdiction to do so especially keeping in view Sections 140 & 167 of Motor Vehicles Act, 1939.

At this stage, it is relevant to mention that Opposite Parties did not choose to challenge the order by preferring Appeal and, therefore, now cannot state that the Complainant is seeking undue enrichment or that the Consumer Commission does not have jurisdiction. Be that as it may, Section 3 of the Consumer Protection Act, 1986 envisages that the law is "in addition to and not in derogation of any other law for the time being in force." We find force in the contention of the learned Counsel for the Appellants/Complainants that this Consumer Complaint has been filed before the State Commission seeking relief because of the deficiency of service of the Opposite Parties in allowing a coordinator to drive the bus. He submitted that in the Appeal before High Court it was clearly stated that the coordinator did not have a driving license. The same was unrebutted by the Opposite Parties herein.

Now, we address ourselves to whether the Complainants are entitled to any enhancement. The State Commission has based its calculation of Rs.10,000/- to be the probable income for the student and has also clearly noted that this is based on some "guesswork." Having regard to the fact that admittedly the students were taken for H.R. Summit and it was not denied that the students were going to participate in Campus interview and also taking into consideration that the deceased was a B-Tech third year engineering student and the ratio laid down by Hon'ble Supreme Court in Ashvinbhai Jayantilal Modi (supra), we are of the considered view that the State Commission has conservatively ascertained the future income of the deceased at a sum of Rs.10,000/- per month. Although learned counsel for the Complainants has argued that a sum of Rs.25,000/- per month ought to be awarded as directed by Hon'ble Supreme Court in Ashvinbhai Jayantilal Modi (supra), we observe that in that case the student was a medical graduate and, therefore, was awarded Rs.25,000/- per month in the interest of justice. The incident in that case had taken place on 12.07.2002 and in this case the death has taken place in March, 2008. We are of the view that an amount of Rs. 15,000/- per month as future income can be safely ascertained to meet the interest of justice. Rs.15,000/- per month for 12 months would be Rs.1,80,000/-. 1/3 rd of the probable income towards personal expenditure would be Rs.60,000/- per month. Once this is deducted, the amount would arrive at Rs.1,20,000/- which multiplied by 13 would be Rs.15,60,000/- which shall be apportioned between the first Complainant who is mother of the deceased and the second Complainant who is the father of the deceased in the same ratio that has been decided by the State Commission. At the cost of repetition, it is relevant to mention that the opposite parties did not prefer any Appeal and have also paid the amounts awarded by the State Commission. The balance amounts which are directed to be paid by way of this order do not carry any interest if paid within six weeks from the date of receipt of copy of this order, failing which the amount shall attract interest @ 6% p.a.

In the result, this Appeal is allowed in part with the afore-noted directions.