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Judgment
Ashutosh Mohunta, J.�As both the appeals arise out of the same Award, they were heard together and are being disposed of by this common judgment. These appeals arise out the Award dated 13-02-2008 passed in O.P. No. 1714 of 2005 by the learned XVII Additional Chief Judge-cum-III Additional Metropolitan Sessions Judge, at Hyderabad. M.A.C.M.A. No. 1775 of 2008 is preferred by the claimants who are the parents of the deceased aggrieved by the inadequacy of compensation, whereas M.A.C.M.A. No. 1118 of 2013 is preferred by the Andhra Pradesh State Road Transport Corporation questioning the quantum of compensation or otherwise.
For the sake of convenience, the parties are referred to as ''claimants'' and ''APSRTC''.
The aforesaid claim petition was filed by the claimants claiming a compensation of Rs. 25,22,127/- on account of death of the deceased Dulam Harsha. It has been averred in the claim petition that on 24-10-2006 at about 6.00 AM, said Dulam Harsha while returning to Hyderabad in Matiz Car bearing No. AP 7 K2444 and when the car reached near Peddapally gate NH 7, the driver of APSRTC bus bearing No. AP HZ 2746 coming in opposite direction drove the same in rash and negligent manner and hit the car while overtaking a lorry. Dulam Harsha sustained multiple injuries and immediately after the accident, he was shifted to Government Civil Hospital, Shadnagar and from there to NIMS Hospital, Patigadda, Hyderabad and while undergoing treatment he succumbed to the injuries on 30-10-2004.
Balanagar police registered a case in Crime No. 172 of 2004 against the driver of the offending APSRTC bus initially under Section 337 IPC and subsequently on the death of the deceased altered the same to Section 304-A IPC.
According to the claimants, the deceased was aged 31 years at the time of accident and he was hale and healthy working as Software Engineer in SPG Media Private Limited, Somajiguda earning a sum of Rs. 31,000/- per month which he used to contribute for the maintenance of the family. It is further stated that the deceased joined in SPG Media Private Limited in June 2004 and underwent training in Malesia in September, 2004 and was even planning to go to USA on job. The deceased was very intelligent having bright future. Due to the sudden death of the deceased, they suffered mental agony and shock. If is also stated that the claimants incurred Rs. 74,927/- towards the medical expenses of the deceased while he underwent treatment.
The respondent - APSRTC filed counter affidavit contending that the petition is not maintainable for non-joinder necessary parties and that the accident had not occurred due to the rash and negligent driving of the driver of its bus. It was also contended that the claim was highly excessive, speculative and disproportionate.
On the strength of the above pleadings of the parties, the Tribunal framed the following issues:
Whether Dhulam Harsha died in the accident caused by rash and negligent driving of APSRTC Bus No. AP 11Z 2746 on 24-10-2004?
Whether the petitioners are entitled to compensation.
If so to what sum and against whom?
To what relief?
In order to substantiate their claim for compensation, P.Ws. 1 to 3 were examined and Exs. A-1 to A-8 were got marked on behalf of the claimants. On behalf of the APSRTC neither oral nor documentary evidence was marked.
The Tribunal after going through the evidence and the material available on record held on issue No. 1 that the evidence of P.W. 2 corroborated by the contents of Exs. A-1 and A-4 clearly and clinchingly established that the accident occurred solely due to the rash and negligent driving of the driver of the APSRTC bus. The Tribunal also held that the claimants are entitled to a total compensation of Rs. 9,76,000/- and accordingly, an award was passed for the said amount together with proportionate costs and interest at 7.5% per annum from the date of the petition till the date of realisation.
The learned Counsel for the claimants submitted that the compensation awarded by the Tribunal is extremely on lower side and the same needs to be enhanced appropriately. He contended that the Tribunal ad taken the salary of the deceased to be Rs. 9,000/- per month even though Ex. A-6 and the evidence of P.W. 3 clearly reveal that the deceased was getting a sum of Rs. 31,000/- per month towards his salary. The Tribunal has also not granted any amount towards the future prospects of the deceased. The Tribunal has also granted less amount towards the funeral expenses.
The learned Standing Counsel for the APSRTC contended that the Tribunal was not right in holding that the driver of the APSRTC bus was solely responsible for the accident and contended that the Tribunal ought to have applied the doctrine ''res ipsa loquitur'' to the facts of the present case. According to him, the rate of interest on compensation awarded by the Tribunal is on higher side.
Insofar as issue No. 1 is concerned, in order to prove that the accident occurred solely due to the rash and negligent driving of the driver of the APSRTC bus, the claimants examined P.W. 2 and got marked Exs. A-1 to A-5. P.W. 2 who is alleged to be an eye witness to the accident deposed as to how the accident occurred and according to him, the driver of the bus was responsible for the accident. Though he was cross examined at length, nothing adverse was elicited to discard his testimony. Further, the fact that Ex. A-1 was filed against the driver of the bus and also the fact that the police after due enquiry filed charge sheet against the driver of the bus to prove the involvement of the driver of the bus. Thus, the Tribunal after thoroughly evaluating the evidence on record found that the accident in this case occurred only due to the rash and negligent driving of the bus by its driver. This Court having due regard to the evidence brought on record does not find any valid and legitimate reason to interfere with the same. Further, it seems from the Award that except making an averment that there was no negligence on the part of the driver of the bus, no legitimate attempt was made by the APSRTC to prove the same. The APSRTC even did not choose to examine the driver of the bus who can speak about the occurrence of the accident.
Insofar as the contention of the APSRTC that the doctrine ''res ipsa loquitur'' applies to the facts of the present case is concerned, the same is liable to be rejected in view of the fact that P.W. 2 who is alleged to be an eye witness to the incident specifically supported the case of the claimants and further, the APSRTC did not choose to examine the driver of the offending bus. Thus the evidence of P.W. 2 remains untouchable.
In view of the above, we concur with the finding recorded by the Tribunal on issue No. 1.
The next issue to be considered is with regard to the quantum of compensation. The claimants have claimed compensation of Rs. 25,22,127/-. The claimants have averred that the deceased was working as a Software Engineer in SPG Media Limited, Somajiguda, Hyderabad earning a sum of Rs. 31,000/- per month which he used to contribute for the maintenance of the family. In proof of the same, they filed Ex. A-6 salary certificate of the deceased which reveals that the deceased as on the date of his death was getting Rs. 31,000/- per month. P.W. 3 who is an employee of the company, in which the deceased worked, deposed with regard to the salary of the deceased and according to him, the deceased was drawing Rs. 31,000/- per month. Taking into consideration the fact that the deceased worked as a Software Engineer and that no person authorized to speak about Ex. A-6 was examined by the claimants and the fact that the APSRTC has also not filed any evidence opposing the income of the deceased, we deem it appropriate to take the income of the deceased to be Rs. 18,000/- per month or Rs. 2,16,000/- per annum. Since no amount of compensation was awarded by the Tribunal towards the future prospects of the deceased, following the judgment of the Supreme Court in Rajesh and Others Vs. Rajbir Singh and Others, , it is just and appropriate to add 50% towards future prospects i.e., Rs. 1,08,000/- giving a total of Rs. 3,24,800/- per annum. Since the deceased was unmarried, 50% has to be deducted towards the personal and living expenses, then contribution of the deceased to the claimants comes to Rs. 16,20,000/-. In view of the judgment of the Supreme Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , as the deceased was aged 31 years as on the date of accident, therefore multiplier ''16'' would be applicable in the present case and hence, the total loss of dependency comes to Rs. 25,92,000/-. Added to the aforesaid amount, Rs. 1,00,000/- has to be awarded towards loss of love and affection and also a sum of Rs. 25,000/- for funeral and transportation charges. Apart from the above, the claimants are undisputably entitled to a further sum of Rs. 74,000/- awarded by the Court below towards the medical expenses. Thus, the appellants - claimants are entitled to total compensation of Rs. 27,91,000/-.
Even though the claimants have claimed only Rs. 25,22,127/-, they are entitled to the aforestated amount since Section 168 of the Motor Vehicles Act empowers the Claims Tribunal to make an award determining the amount of compensation which appears to it to be ''just''. The only requirement for determining the compensation is that it must be ''just''. There is no other limitation or restriction on its power for awarding just compensation (see Nagappa Vs. Gurudayal Singh and Others, . Rajesh and Others Vs. Rajbir Singh and Others, , the Supreme Court held that the Court should award proper compensation irrespective of the claim and, if required, even in excess of the claim. Similar view was also taken by the Supreme Court in Sanobanu Nazirbhai Mirza and Others Vs. Ahmedabad Municipal Transport Service, .
For the reasons discussed above, in our view, under the Motor Vehicles Act there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. As observed by the Supreme Court, the function of the Tribunal/Court is to award ''Just'' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or by enhancing the claim there would not be change of cause of action.
Insofar as the rate of interest is concerned, in view of the judgment of the Supreme Court in Abati Bezbaruah Vs. Dy. Director General Geological Survey of India and Another, and in terms of Section 171 of the Motor Vehicle Act, we hold that the claimants are entitled to interest at the rate of 7% per annum.
In the result, M.A.C.M.A. No. 1775 of 2008 filed by the claimants is allowed awarding a sum of Rs. 27,91,000/- together with proportionate costs and interest at 7% per annum from the date of petition till the date of realization which shall be shared by the claimants in equal proportion. M.A.C.M.A. No. 1118 of 2001 filed by the APSRTC is partly allowed to the extent of reducing the rate of interest from 7.5% to 7% per annum. Miscellaneous petitions, if any, pending consideration shall stand closed. No order as to costs.