Andhra Pradesh State Road Transport Corporation vs N Subramnauym Reddy & Ors.

. The order and decree of the learned Tribunal is illegal, arbitrary unsustainable, contrary to law, weight of evidence and probabilities of the case.

ii). The learned Tribunal failed to see that there was no rashness and negligence on the part of the driver of the A.P.S.R.T.C. bus.

iii). The learned Tribunal ought to have seen that the accident occurred due to the negligence of the driver of the Tractor.

iv). The learned Tribunal ought to have seen that the deceased died during the course of his employment while discharging his duties and therefore, the claimants ought to have claimed compensation under workman compensation Act.

v). The learned Tribunal ought to have seen that the driver of the Tractor had no valid driving license.

vi). The learned Tribunal ought to have seen that the Tractor-cum-Trailer dashed the deceased.

vii). The learned Tribunal ought to have seen that the respondents/ claimants Nos. 3 to 6 are not the dependants of the deceased.

viii). The learned Tribunal erroneously added 50% of the income to the actual income of the deceased, which amounts to Rs.9,000/-(Rs.6,000/- + Rs.3,000/-).

ix). The learned Tribunal erred in holding that the respondents 7 & 8 are not liable to pay the compensation and erred in appreciating the evidence in proper perspective, and with other formal grounds, prayed to allow the appeal.

Whether Sri N.Sreenatha Reddy died in the accident dated 01.12.2015 occurred due to the rash and negligent driving of A.P.S.R.T.C Bus bearing No.AP-28-Z-6138?

Whether the petitioners are entitled for compensation? If so, to what amount?

Whether the order and decree dated 20.12.2017 passed by the learned Tribunal are sustainable in facts and law?

To what relief?

As seen from the record, there is no dispute regarding the factum of accident and to prove the contentions, during trial, petitioner No.1 examined himself as PW.1, filed examination-in-chief affidavit in lieu of her chief examination reiterating the averments made in the petition. As seen from the record, PW.1 is not an eye witness to the accident. The petitioners relied upon the evidence of PW.2 coupled with Ex.A1 to Ex.A11 documents. PW.2 employee of Rathna Biotech Private Limited, testified that when the deceased stood near by the tractor and trailer bearing No.AP 03-U-8582 and AP 03-U-8583, the driver of APSRTC Bus bearing No.AP-28-Z-6138 drove the same in a rash and negligent manner and dashed the Tractor bearing No. AP 03 U 8582 and as a result, tractor dashed the deceased, he fell down, sustained multiple injuries and immediately after the accident, he was shifted to the Government Hospital, Palamaner, the Doctor declared him as brought dead. The accident occurred due to the rash and negligent driving of respondent No.1 and nothing useful material is elicited in the cross examination of PW 1. Having filed the written statements, respondent Nos.1 and 2 failed to adduce any oral evidence. Respondent No.1 who is the best person to speak about the accident is also not examined. Non examination of respondent No.1 is fatal to the case of respondent Nos.1 and 2.

Ex.A1/ First Information Report and Ex.A2/charge sheet clearly reveals that the accident occurred due to the rash and negligent driving of respondent No.1. There is no rebuttal evidence to that effect. So, in the absence of any rebuttal evidence, the evidence of PWs.1 and 2 coupled with Exs.A1 and A2 clinchingly proves that the accident occurred due to the rash and negligent driving of respondent No.1. Further, as seen from Ex.A3/Post mortem Report and Ex.A4/Inquest Report, the deceased sustained injuries in the accident and succumbed to the said injuries. As per Ex.A6/Motor Vehicle Inspector Report, the accident is not occurred due to any mechanical defect. Therefore, this Court is of the considered view that the accident occurred only due to the rash and negligent driving of the driver of the A.P.S.R.T.C Bus, Sri N. Sreenath Reddy sustained injuries in the said accident and succumbed to the said injuries. Hence, this point is answered in the affirmative and in favour of the petitioners.

As per the version of the petitioners, the deceased hale and healthy, aged about 23 years, unmarried, working as Electrician in Rathna Biotech Private Limited was drawing salary of Rs.7,600/- per month, he was also doing cultivation and he used to contribute his earnings to his family. As seen from Ex.A3/Postmortem report and Ex.A4/Inquest report and Ex.A2/Charge sheet, age of the deceased is mentioned as 23 years. There is no contra evidence to that effect. So, it can safely be concluded that the age of the deceased was 23 years as on the date of accident and was unmarried. The relevant multiplier is „15‟. The petitioners who are parents, sisters and grand parents of the deceased are entitled for compensation.

So far as income of the deceased is concerned, to substantiate the version of the petitioners, petitioners filed Ex.A8/Salary certificate, Exs.A9 to A11 pattadar passbooks stands in the name of petitioner Nos.1, 2 and 5. To prove Ex.A8-Salary certificate, petitioners have not examined any of the person. It is needless to say that mere filing of a document is not suffice and contents of the document must be proved by the petitioners. Since respondent No.2 disputed the earnings of the deceased, it is incumbent on the part of the deceased to prove Ex.A8/Salary Certificate. In the given facts and circumstances, the learned Tribunal has not considered Ex.A8/Salary Certificate. To substantiate the version of the petitioners that the deceased doing cultivation, except filing of Exs.A9 to A11, they have not adduced any evidence that the deceased actually attending agricultural works. On one hand their contention is that the deceased working as an employee in Rathna Biotech Private Limited and on the other hand, they also contending that he was also doing cultivation. Admittedly, all the documents Exs.A9 to A11 are in the names of petitioner Nos.1, 2 and 5, who are none other than parents, sister and grandparents of the deceased. Except oral testimony of the petitioners about the actual earnings of the deceased, there was no supportive evidence. They have not examined any independent witness.

Having considered the facts and circumstances of the case and the fact that the accident occurred in the year 2015, this Court is of the considered view that notional income of the deceased can be fixed at Rs.7,000/- per month.

The petitioners have not filed any appeal for enhancement of compensation, however, learned counsel for the petitioners would argue that though they have not filed any appeal or cross objections seeking enhancement of compensation, just and fair compensation may be awarded. Learned counsel for the respondent No.1 argued that the accident occurred in the year 2015 and as such, the present principles of law shall not be applied to the facts of the case at hand. It is settled principle of law that the petitioners are entitled for just and fair compensation and further, in exercise of the appellate powers under Order 41 Rule 33, this court can enhance the amount of compensation even in the absence of appeal or cross objections. In this regard, it is to be noted that in Sharanamma & Others v. Divisional Controller, North-East Karnataka Road Transport Corporation^{11.2013 (11) SCC 517}, Hon‟ble Apex Court held thus:

Further, in National Insurance Company Limited rep. By its Branch Manager v. Susheelamma and Others^{22.2023 SCC Online AP 1725}, having considered the aforementioned principle, Division Bench of this Court has held that to the appeal under Section 173 of the M.V. Act to the High Court, in the absence of a different procedure having been provided, either under the M.V. Act or the A.P.M.V. Rules, 1989, and the applicability of Order 41 C.P.C also not having been excluded, the normal rules which apply to appeals before the High Court, are applicable and further held that for doing justice and to award just compensation, the provisions of Order 41 Rule 33 are to be invoked.

And, in Surekha v. Santhosh^{33.(2021) 16 SCC 467}, having agreed with the stand of the claimants that just compensation amount ought to be awarded, High Court of Judicature at Bombay declined to grant enhancement merely on the ground that the claimants failed to file cross appeal and in such circumstances, Hon‟ble Apex Court held that it is well settled that in the matter of insurance claim compensation in reference to the motor accident, the court should not take hyper technical approach and ensure that just compensation is awarded to the affected person or the claimants. So, in the absence of any appeal or cross objections in respect of quantum of compensation, this Court is under obligation to award just and fair compensation.

While awarding compensation, the principles laid down by the Hon‟ble Apex Court in Sarala Varma and Others Vs. Delhi Transport Corporation and another^{44.(2009) ACJ 1298} , National Insurance Company Ltd Vs. Pranay Sethi and others^{55.(2017) 6 SCC 680} and Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram and others^{66.(2018) 18 SCC 130} shall be taken into consideration. Admittedly, accident in this case is occurred in the year 2015 and on 20.12.2017, the learned Tribunal passed the impugned award. Respondent preferred appeal with delay and accordingly, this appeal is registered in the year 2018. Insofar as applicability of the subsequent settled principles of law to the facts of the case at hand, it is apposite to mention that in Government of India and another v. Sri Devarj Medical College^{77.2026 Livelaw SC 766}, it is held that if a decision of the Hon‟ble Apex Court does not expressly provides its application to be prospective, then it is a settled law that all the decisions are retrospective in application.

Applying the aforementioned principles, this court assessed the compensation as follows:

In the given facts and circumstances of the case, the petitioners are entitled for Rs.12,72,000/- (Rupees Twelve Lakhs Seventy Two Thousand Only) and in this court‟s well considered view, the compensation awarded is just, adequate and reasonable, as the deceased had left her dependents.

So far as liability of the respondents is considered, a finding is already given in point No.1 that the accident occurred only due to the rash and negligent driving of driver of APSRTC bus and as such, respondent No.2 is vicariously liable for the act committed by the respondent No.1 and is liable to pay compensation. The learned Tribunal rightly exonerated the liability of respondent Nos.3 and 4 as the accident occurred due to the rash and negligent driving of driver of respondent No.2. Hence, this point is answered holding that respondent Nos.1 and 2 are jointly and severally liable to pay compensation.

In the result, and in view of the findings in point Nos.1 to 3, this Motor Accident Civil Miscellaneous Appeal is dismissed, however, modifying the Order of the learned Tribunal in respect of the amount of compensation from Rs.10,00,000/- to Rs.12,72,000/- (Rupees Twelve Lakhs Seventy Two Thousand Only) and awarded the same to the petitioners with interest thereon at 7.5% per annum simple from the date of petition till the date of payment of realization recoverable by the petitioners from respondent.

Out of the said compensation amount, an amount of Rs.5,00,000/-(Rupees Five Lakhs Only) is awarded to the petitioner No.1, Rs.5,72,000/-(Rupees Five Lakhs Seventy Two Thousand only) is awarded to the petitioner No.2 and Rs.50,000/- each is awarded to the petitioner Nos.3 to 6.

The compensation amount, as aforesaid, with interest, excluding the amount, if any, already deposited shall be deposited within (02) two months, from the date of receipt of this judgment.

On such deposit, all the petitioners are permitted to withdraw their shares of compensation as awarded supra along with accrued interest thereon, excluding the amount, if any, already paid.

There shall be no order as to costs.

As a sequel thereto, pending miscellaneous petitions, if any, shall stand closed.