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Judgment
B. Siva Sankara Rao, J.—The respondent-A.P.S.R.T.C. in the claim petition, filed this appeal having been aggrieved by the Order/Award of the learned Chairman of the Motor Accidents Claims Tribunal-cum-Chief Judge, City Civil Courts, Hyderabad, (for short, ''Tribunal'') in M.V.O.P. No. 2582 of 2006 dated 11.03.2008, awarding compensation of Rs. 4,30,000/- (Rupees Four lakhs thirty thousand only) with interest at 6% per annum as against the claim of the claimant of Rs. 4,50,000/- (Rupees four lakhs fifty thousand only), in the claim petition u/s 166 of the Motor Vehicle Act, 1988 (for short, ''the Act''). Heard Sri K. Madhava Reddy, the learned standing counsel for the appellants-A.P.S.R.T.C. and Smt. A. Chaya Devi, learned counsel for the respondents-claimants. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.
The contentions in the grounds of appeal by the appellant-insurance company in nutshell are that the Judgment and decree of the Tribunal is contrary to law, weight of evidence and probabilities of the case that the accident was the result of rash and negligent driving of the bike rider, the deceased, which the Tribunal failed to take note of and instead of applying the principle of Res-Ispa Loquitor to fix any contributory negligence, that earnings of the deceased was taken as Rs. 3,000/- is with no basis and the quantum of compensation awarded by the Tribunal is on high side. Whereas it is the contention of the respondents-claimants that in passing the award, for this Court while sitting in the appeal there is nothing to interfere on the finding that the accident occurred completely due to rash and negligent driving of the bus driver and there is no fault on the part of the deceased bike rider. Learned counsel for the claimants further contended that the rate of interest awarded by the Tribunal is utterly low.
Now the points that arise for consideration in the appeal are:
Whether there is any contributory negligence or total negligence of the deceased, resulting the accident if not total negligence of the driver of the crime bus requires interference of this Court so also on the quantum of compensation and rate of interest and with what observations?
To what result?
POINT-1:
The facts are that on 25.09.2006 the deceased Y. Nagesh while proceeding on his motor cycle from Kalwakurthy towards Jadcherla at about 5.00 p.m. at the outskirts of village Marchala the offending RTC bus bearing No. AP 10Z 725 was driven from the opposite direction by the driver of the bus rashly, negligently and at high speed dashed the deceased, who sustained grievous injuries and he was shifted to Community Health Centre, Kalwakurthy and referred to Osmania General Hospital, Hyderabad for better treatment where the deceased died are proved from the material on record and no way requires interference in the appeal. On claim made by the wife and the mother of the deceased, aged about 30 years, the Tribunal awarded an amount of Rs. 4,30,000/- towards compensation with interest at 6% p.a. to the claimants under various heads by award dated 11.03.2008.
When coming to the quantum of compensation whether it is just compensation in the factual matrix of the case concerned, it is apt to state 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 as stated by Lord Morris. In Ward v. James 1965 (1) All. E.R. 563, it was observed by Lord Denning that award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in comparable cases. Thus, in a case involving loss of limb or its permanent inability or impairment, it is difficult to say with precise certainty as to what composition would be adequate to sufferer. The reason is that the loss of a human limb or its permanent impairment cannot be measured or converted in terms of money. 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 v. 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 LORD v. in 555 All.E.R (1) 1969 Cleaver, Parry Morris>observed that to compensate in money for pain and for physical consequences is invariably difficult without some guess work but no other process can be devised than that of making a monitory assessment though it is impossible to equate the money with the human sufferings or personal deprivations. The Apex Court in R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, held that in its very nature whatever a Tribunal or a Court is to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standard. 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 compensation in case of death, for loss of dependent and estate to all claimants; care, guidance, love and affection especially of the minor children, consortium to the spouse, expenditure incurred in transport and funerals 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 from nature of injuries sustained and nature of treatment required.
The fact that the accident was occurred involving the crime bus and the bike of the deceased on the fateful day is not in dispute. Ex.A-1 F.I.R. is issued against the bus driver and the police after investigation filed charge sheet Ex.A-5 against the bus driver. P.W.1, wife of the deceased as 1st claimant deposed the same facts with reference to the Ex.A-1 apart from Ex.A-4 M.V.I. report, which shows that there is no damage and Ex.A-3 post mortem report clearly shows that the death was the result of fractures, crush injuries and from shock. If there is total negligence of the deceased, he could have fall down and the question of crush injury never arise as in such a case finder of last opportunity is of the bus driver. Coming to any contributory negligence on the part of the bike rider from the above Exs.A-1, A-3, A-4 and A-5 coupled with evidence of P.W. 2 eye witness to the incident concerned, the fact that the deceased was proceeding on the bike in opposite direction to the bus is not in dispute. Had the deceased careful while riding the bike, there could be possibility to avert the accident is also one of the factors not to ignore. R.W-1 who is the driver of the bus says that deceased was at fault. Thus, part of negligence also on the deceased from above facts and circumstances of the case to say that there is a contributory negligence on the part of the deceased also. So far as the contributory negligence and apportionment of liability in this regard is concerned, it all depends upon facts and circumstances of the case as there is no hard and fast rule in this regard, more particularly from the size of the vehicle, manner of accident, condition and width of road. In this matter, from the factual matrix, contributory negligence can be fixed at reasonable ratio of 10% against the deceased bike rider to fix the remaining liability i.e., 90% on the part of the crime bus of A.P.S.R.T.C. For the deceased being 30 years old, multiplier would be 17 as per the expression in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, as rightly taken by the Tribunal and for claiming earnings of the deceased at Rs. 4,500/- there is no-evidence and the Tribunal rightly taken into consideration as Rs. 3,000/- per month towards earnings of the deceased, which even a non earning member and domestic contribution of a house-wife can be assessed at Rs. 3,000/- per month as expressed by Honourable Apex Court in Lata Wadhwa and Others Vs. State of Bihar and Others, and in Rajesh and Others Vs. Rajbir Singh and Others, held that not only for salaried employees, but also fixed wage earners and skilled workers and artisans, even the prospective earning capacity to be increased. No doubt in that case it was increased by stating between persons aged 30 to 40 years at 50%. So far as this case concerned, even 20% proportionate increase taken out of it, it comes to Rs. 3,600/- per month. The contributory negligence of the respondents i.e., 90% on the said income comes to Rs. 3,240/- and if half of the amount deducted towards personal expenses referring to observations at paras 29 to 32 of Sarla Verma (supra) as there is no hard and fast rule regarding percentage of personal expenses including for bachelor; though for bachelor generally it will be taken as 50% if the parents are the dependants upon him and where number of dependants are more to reduce the personal expenses from 50% even of bachelor; whereas for married persons if the dependants are above 4 even to reduce personal expenses of 1/3rd to 1/4th out of the income and if more than 6 to 1/5th out of the income. Since dependants herein are wife and widow mother, it is just to take 50% towards personal expenses and then it comes to Rs. 1620 x 12 x 17 = Rs. 3,30,480/-. Further, Rs. 1,00,000/- can be awarded towards loss of consortium, Rs. 25,000/- towards funereal expenses vide Rajesh (supra) and towards loss of estate a minimum of Rs. 5,000/-. In all it comes to Rs. 4,60,480/-. Thus, the compensation awarded by the Tribunal is no way on high side, but for no cross appeal, this Court has no right to enhance the compensation as laid down by the Apex Court in Ranjana Prakash and Others Vs. Divisional Manager and Another, in categorical terms that in the appeal filed by insurer or owner or driver as the case may be, the claimant but for to support the quantum on one ground or other has no right to ask for enhancement of compensation so also the appellate authority has no power under Order XLI Rule 33 C.P.C. to enhance in absence of independent appeal or cross objections. Now, coming to the rate of interest awarded at 6% is since low as per the settled expression of the Apex Court even no cross-objections; as the Courts got discretionary power even under Order LXI Rule 33 C.P.C. to award reasonable rate of interest as laid down by the Apex Court in D.D.A. and Others Vs. Joginder S. Monga and Others, and thus u/s 171 of the M.V. Act as laid down in Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya and Others, and the latest three Judge Bench expression in Rajesh (supra), interest is awarded at 7.5% p.a. Accordingly, point No. 1 is answered.
POINT No. 2:
Accordingly and in the result, while dismissing the appeal enhancing the rate of interest from 6% p.a. to 7.5% p.a. from the date of claim petition till the date of realization. Rest of the terms of the award of the Tribunal holds good. There shall be no order as to costs. Miscellaneous petitions, if any pending in this appeal, shall stand closed.