APSRTC and Others vs Cheede Atchayamma and Others

Dr. B. Siva Sankara Rao, J.�Aggrieved by the Order, dated 18.02.2008, passed by the Chairman, Motor Accidents Claims Tribunal - cum - District and Sessions Judge, (FAC) I Additional District Judge, West Godavari, Eluru, (for short, ''the Tribunal''), in O.P. No. 107 of 2005 maintained by the claimants under Section 166 of the Motor Vehicles Act, 1988 (for short, ''the Act'') for the death of Cheede Subba Rao (hereinafter referred to as ''the deceased'') in a motor accident that occurred on 15.10.2004, due to negligence act of the 1st respondent - Andhra Pradesh State Eastern Power Distribution Company Limited, Visakhapatnam (for short, ''the APSEPDCL'') and the 3rd respondent, who is the driver of the 2nd respondent -Andhra Pradesh State Road Transport Corporation (for short, ''the APSRTC) bus bearing No. AP 10 Z 4320, the bus came in contact with the Stem of Thumma Plant, due to which the electrical live wire head line fell on the bus, as a result of which the deceased was electrocuted and sustained severe burn injuries and died on 18.10.2004 while undergoing treatment at Kakinada, when the claimants claimed compensation of Rs. 08,02,000/-, since the Tribunal awarded Rs. 7,16,944/- against the respondents 1 to 3 (supra) jointly and severally, the respondents 1 and 2 to the claim petition filed these two appeals respectively against their liability. The respective contentions in the grounds of appeals are that:

"a) MACMA (SR) No. 43042 of 2008 maintained by the Chairman and Managing Director, APSEPDCL, Visakhapatnam, with the contentions that the Tribunal gravely erred in fixing joint liability, which is contrary to law, despite no negligence on the part of the appellant herein instead of dismissing the claim against the appellant; that the Tribunal should have seen that it is due to heavy rain and whirlwind on 15.11.2004 one big tree had fallen across the road obstruct the passage of power line available on the side of the canal touched the luggage of the bus and there was no negligence of APSEPDCL in maintaining the live wires; that the FIR contents also establishes the same; that the tribunal should seen that the burden is on the claimants to prove negligence without which no compensation they are entitled. Hence, to set aside the award fixing joint liability and exonerate the appellant APSEPDCL.

b) MACMA No. 2512 of 2008 maintained by the APSRTC represented by its General Manager with the contentions that the Tribunal gravely erred in fixing joint liability against the APSRTC also for non fault of the APSRTC or the driver of the bus for the alleged accident occurred on account of falling of sagged electric live wire on the bus in which the driver of the bus is not responsible for no act of bus driver contributed to the accident and if at all the accident occurred was from improper maintenance of electrical live wire by the APSEPDCL and its subordinates whose duty was to cut and remove the branches of trees which are above the electrical live wire and the Tribunal should have seen that the RTC is no way liable, the claimants no way attempted to twist the facts even; that the Tribunal gravely erred thereby in fixing the liability of RTC. Hence to set aside the joint liability and to exonerate the RTC."

Learned counsel for the respective appellants also as 5th respondent to the respective appeals reiterated their contention supra in the course of hearing the appeal.

Respondent No. 6, who is the driver of the bus, in both the appeals did not choose to appear. Hence the appeal is taken as heard on his behalf.

Whereas, it is the contention of learned counsel for respondents 1 to 4 of the two appeals (claimants) that the award of the Tribunal is just and for this Court while sitting in appeal there is nothing to interfere and sought for dismissal of the appeals.

Perused the material on record. The parties will hereinafter be referred to as arrayed before the Tribunal for the sake of convenience. As both appeals arise out of the same award impugning respective joint liability, both the appeals taken up together to decide.

Now the common points that arise for consideration are:

"i. Whether the fixing of liability on the APSEPDCL and APSRTC by the tribunal jointly is unsustainable equally in arriving the quantum and if so, with what observation and conclusions and what liability and of whom among them, if any?

ii. To what result?"

Point No. i:

There is no dispute on the manner of accident from the factual matrix of the case viz., on the fateful i.e. on 15.10.2004 it was raining and branch of Thumma plant fallen on road side due to which the electrical live wire headline fallen on the bus, as a result of which the deceased herein was electrocuted and sustained burn injuries and was succumbed therefrom on 18.10.2004 while undergoing treatment at Kakinada and the deceased was no other than the conductor of the RTC bus of the Narasapuram depot.

Now coming to the liability of appellants in both the respective appeals, the tribunal fixed the joint and several liability against them by holding that they are joint tortfeasors since the accident was outcome of their composite negligence. It is for the reason that at time of accident, there was raining and had the bus stopped somewhere, the accident could be averted. Apart from which, it is from the fall of tree or branch of tree of road side on the live electric wire without any protected casing to it and from falling of the live electric wire on the bus, particularly on the conductor of the bus, the electrocution to the bus conductor/deceased was caused and thereby he succumbed to the burn injuries. It is thus the equal liability of the appellants in both the appeals, but for fall of the live wire on the bus, otherwise there is no other negligence on the part of the bus driver. Needless to say, the fall of the road side tree also had little contribution. Had the live wire with protected casing, therefrom even fall of the live wire on the bus the accident could be averted. Thereby, the APSEPDCL cannot escape from its liability even for the reason in non stopping of the bus at somewhere for heavy rain and proceeding on the road by the bus driver, that live wire touched the conductor on duty.

Having regard to the above, the composite negligence though not be apportioned against both the joint tortfeasors to recover respectively for both jointly liable to recover entire amount by the claimants against any of them as per the latest expression of the 3 Judges Bench by the Apex Court in Pawan Kumar and Another etc. Vs. Harkishan Dass Mohan Lal and Others, , both the parties before the Court are having equally responsible for the accident and therefrom there is equal liability of them to the claimants, with a right to recover by the claimants against both or any of them as per the principle laid down in the expression referred supra. If anybody, among the two respondents paid the compensation, then they can recover half of the amount paid with interest and costs from the other respondent since both are liable equally and both are joint tort feasors.

Coming to the quantum of compensation, as per Ex. A.7-salary certificate, the monthly earning of the deceased is Rs. 6,711/-, out of which, an amount of Rs. 711/- would be deducted towards professional tax and other deductions, hence an amount of Rs. 6,000/- would be taken into consideration towards monthly earning of the deceased. Ex. A.2 - Post Mortem Examination report shows the age of the deceased as 50 years. Besides considering the income of the deceased at Rs. 6,000/- per month, 15% increase would be taken towards prospective earning capacity. Then the earnings of the deceased to be taken at Rs. 6,900/-. Among the four claimants but for wife and unmarried daughter, the major son and married daughter are not at all dependants on the deceased, but for sufferers if any. Therefrom as per the expression of the Apex Court reported in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , where number of dependent family members is 2 to 6, 1/4th of the income is to be deducted towards his personal expenses, since the dependents of the deceased are below four in number as supra 1/3rd towards personal expenses to be deducted. After deducting 1/3rd of the income from his earnings, it comes to Rs. 4,600/- per month, and for the age group of 45 to 50, ''13'' multiplier is applicable, then the loss of earnings comes to Rs. 7,17,600/- (4,600 x12x13).

Besides the loss of earnings, as per the expression of the Apex Court in Rajesh and Others Vs. Rajbir Singh and Others, , the 1st claimant would be entitled for an amount of Rs. 1,00,000/- towards loss of consortium; all the claimants would be entitled for an amount of Rs. 25,000/- towards funeral expenses and Rs. 10,000/- towards loss of estate. In all the claimants would be entitled for an amount of Rs. 8,52,600/-. It is more than what the tribunal awarded of Rs. 7,16,944/-. Thereby, there is nothing to interfere with the award of the Tribunal on the quantum of compensation, but for no cross-objections to enhance otherwise. Accordingly, Point No. i for consideration is answered.

Point No. ii:

In the result, both the appeals are dismissed with no costs. Miscellaneous petitions, if any, pending in this appeal shall stand closed.