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Judgment
Motilal B. Naik, J.—Appellants herein are the claimants in OP No.132 of 1994 on the file of the Court of the Chairman, Motor Accidents Claims Tribunal-cum-District Court, Rangareddy District, who instituted the above OP seeking a compensation of Rs.7 lakhs for the death of one Mohd. Qasim Jeelani, who was working as a Senior Assistant in Central Excise Department, in a motor accident that took place on 22-1-1994 around 4.00 p.m., near Sushma Theatre at Vanasthalipuram Cross Roads in Hyderabad.
The 1st appellant is the wife, appellants 2 to 4 are the minor children and the 5th appellant is the mother of the deceased. According to these appellants-claimants, the deceased Qasim Jeelani was riding the luna along with one Venkateshwarlu as a pillion rider and while he was crossing the road towards left near Sushma Theatre on 22-1-1994 at about 4.30 p.m., the lorry bearing No.AET 2388 driven with high speed and in a rash and negligent manner dashed against the luna resulting in multiple injuries to Qasim Jeelani as well as to the pillion rider Venkateshwarlu. Qasim Jeelani was shifted to Osmania Hospital, where he died after three days while undergoing treatment. The claimants pleaded that the deceased was working as a Senior Assistant in the Central Excise Department and earning Rs.4,500/- per month and contributing Rs.4,000/- per month for the welfare of the family. The claimants further pleaded that as a result of the death of the deceased, the entire family is deprived of the dependency. The claimants also pleaded that the deceased was aged about 40 years at the time of his death and has future prospects of further promotions. Therefore, the claimants claimed a compensation of Rs.7 lakhs in all for the death of the deceased.
Before the Tribunal, on behalf of the 1st respondent, who is the owner of the lorry involved in the accident, a counter was filed denying the allegations about the accident as well as disputing the age, occupation and income of the deceased. The 2nd respondent-Insurance Company also filed a counter stating that there was contributory negligence on the part of the deceased while he was riding the luna, which has resulted in the accident and denied the liability.
Basing the rival pleadings, the Tribunal framed the following issues for consideration:
Whether the accident occurred on 22-1-1994 at 3.00 p.m., was due to the rash and negligent driving of the driver of lorry bearing No.AET 2388?
Whether the petitioners are entitled to any compensation? If so, to what amount and against whom?
To what relief?
To substantiate their claim, the claimants examined two witnesses, PW1 being the wife of the deceased and PW2, being the pillion rider along with the deceased on the fateful day, and got marked Exs.A1 to A10. On behalf of the respondents, none was examined, however Ex.B1 insurance policy was marked.
The Tribunal, on the basis of the evidence of PW2 came to the conclusion that there was contributory negligence on the part of the deceased, which resulted in the death of the deceased. Having reached to such conclusion, the Tribunal felt that one third of the compensation should be deducted in the compensation to be awarded to the claimants. Basing on the evidence, the Tribunal determined the age of the deceased as 40 years at the time of his death and applied multiplier 10.5. Applying the multiplier 10.5 the Tribunal awarded compensation of Rs.2,01,000/- in all which includes loss of consortium as well as loss of estate. As against the award made by the Tribunal dated 16-1-1995, the claimants carried the matter before this Court in the present appeal.
Sri P. Ramakrishna Reddy, learned Counsel for the appellants submits that in order to reach to a conclusion about the contributory negligence on the part of the deceased, who died as a result of the accident, the Tribunal solely relied on the evidence of PW2, who was the pillion rider on the luna driven by the deceased at the time of accident, which according to him is not correct method adopted by the Tribunal. He further states that in the absence of any corroborative evidence on behalf of the respondents, without examining the driver of the lorry who could have been the right person to speak about the contributory negligence on the part of the deceased, the Tribunal ought not to have taken into consideration mere utterance of few words by PW2 in his deposition. However, according to Counsel the Tribunal has taken the same as gospel truth and arrived at the conclusion that the deceased had contributed to the accident and deducted one third of the compensation. The learned Counsel pointed out to the Court that the deceased, who was aged 40 years at the time of his death, was working as a Senior Assistant in Central Excise Department, and the promotional future prospects of the deceased should have also to be taken into consideration while determining loss of earnings. He relied on a decision of the Hon''ble Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, and pleaded that the Tribunal was not justified in awarding a meagre compensation of Rs.2,01,000/- to the claimants, and prayed for awarding appropriate compensation in terms of Section 168 of the Motor Vehicles Act, 1988. The learned Counsel also stated that the Tribunal was not justified in deducting one third income of the deceased towards his personal expenditure, though PW1, the wife of the deceased, categorically deposed in her evidence that her husband was contributing his entire salary for the maintenance of the family.
On the contrary, Sri Prasad, learned Counsel for the 2nd respondent-Insurance Company, submits that the Tribunal has adopted a just and reasonable method while awarding compensation. He, pointing out that the evidence of PW2, who was the pillion rider on the Luna driven by the deceased at the time of accident, that himself and the deceased noticed the lorry coming with high speed which was at a distance of 30 feet from them. Counsel submitted in such a situation the deceased ought not to have taken the risk of crossing over the road, therefore, the Tribunal was justified in accepting the evidence of PW2 and rightly decided to deduct one third of the compensation from the compensation to be awarded to the claimants, for the contributory negligence on the part of the deceased. The learned Counsel also states that the deduction of one third amount from the monthly income of the deceased towards his personal expenses is in accordance with the ratio laid down by the Supreme Court in the decision (supra). Therefore, Counsel pleaded that the award made by the Tribunal is just and proper and no interference is required by this Court.
Having regard to the submissions made by both the learned Counsel, the point for consideration is:
Whether the Tribunal was just in awarding compensation of Rs.2,01,000/-.
So far as the first limb of the submission of the learned Counsel for the appellants regarding the contributory negligence on the part of the deceased is concerned, we must say without any hesitation that merely because PW2 made a statement before the Tribunal that they noticed the lorry at a distance of 30 feet, that could not be a ground for the Tribunal to reach to a conclusion that the driver (deceased) of the Luna has contributed for the accident. A further reading of the evidence of PW2 would reflect that the lorry was coming with high speed. In the present case the place of accident being a cross roads, which has access to various places including a cinema theatre, the time being around 4 p.m., the drivers of heavy vehicles are expected to reduce the speed of the vehicles. Probably, if the Tribunal had noticed the other part of the evidence of PW2 that the lorry was coming with high speed, we are sure that the Tribunal would not have arrived at a conclusion that the deceased had contributed for the accident. That apart, there is no evidence on behalf of the respondents to prove that there was contributory negligence on the part of the deceased. To speak about the contributory negligence on the part of the deceased, the driver of the lorry in question could have been the right person, to say about the factual position. In the absence of any such evidence on behalf of the respondents, in our view, the Tribunal ought not to have reached to such a conclusion. Therefore, we agree with the submission made by the learned Counsel for the appellants and we set aside the finding given by the Tribunal that there was contributory negligence on the part of the deceased, which resulted in the accident.
With regard to the submission of the learned Counsel for the appellants that the Tribunal was not justified in deducting one third of the income of the deceased towards his personal expenses. When there is evidence of PW1 to the effect that the deceased was contributing his entire salary to the maintenance of the family, and the future prospects are also taken into consideration in a recent decision of a Division Bench of this Court, in which one of us (Dr. MBN, J.) is a Member, in CMA No.2058 of 1992, dated 12-6-2001, this Court had an occasion to deal with the situation requiring granting of compensation taking into consideration the future prospects of the deceased also. In that case, the deceased was a Sub-Manager in a Nationalised Bank and was aged 37 years. The Division Bench considered that aspect in tune with the ratio laid down by the Supreme Court in the decision (supra) and adopted a different device by increasing two points to the multiplier, and awarded compensation. Following the said judgment of the Division Bench of this Court, we are of the view that the claimants in this appeal are also entitled to the benefit extended to the claimants in CMA No.2058 of 1992.
In the case on hand, the deceased was aged 40 years and working as a Senior Assistant in the Central Excise Department. To retire, it would take another 20 years and in these twenty years, probably he would be placed in a better position. Since the deceased was aged 40 years, the relevant multiplier to be adopted in this case is 12.79, but not 10.5 as adopted by the Tribunal, which is not in tune with the ratio laid down by the Supreme Court in Bhagawan Das v. Mohd. Arif 1987 ALT 137.
Insofar as the other aspect of deduction of one third of the income towards personal expenses of the deceased is concerned, in the decision (supra) the Hon''ble Supreme Court has categorically held that in the absence of any evidence to show that the deceased was contributing certain amounts for the family or he was incurring some expenditure for his personal requirements, deduction of one third could be reasonable. In the present case, the wife of the deceased who was examined as PW1, has deposed that her husband was contributing his entire salary to the maintenance of the family. As per Ex.A9, salary certificate, the monthly salary of the deceased as on the date of accident is Rs.3,300/-. Though PW1 deposed that her husband was contributing his entire salary for the welfare of the family, in the judgment made in CMA No.2058 of 1992, dated 12-6-2001 the Division Bench of this Court held that though there was positive evidence, the Division Bench after doing some guess work and taking into the status of the person and the place of work, deducted Rs.1,000/- from the monthly income of the deceased towards his personal expenses. In view of the fact that the deceased in this case was working as a Senior Assistant in the Central Excise Department and working in Hyderabad city, we are of the view in the fact and circumstances of the case, deduction of Rs.1,000/- p.m. from the salary of the deceased for his monthly personal expenses would be reasonable.
Thus, the compensation to which the appellants are entitled could be worked out in the following manner. The monthly income of the deceased was Rs.3,300/-. Out of which, if an amount of Rs.1,000/- is deducted towards his personal expenses, it would come to Rs.2,300/- per month, which would be the contribution by the deceased to his family. The annual contribution of the deceased to his family is Rs.27,600/-. As discussed above, the relevant multiplier to be applied in this case is 12.79, which is rounded off to 13. Following the decision of the Division Bench of this Court in CMA No.2058 of 1992, two points are to be added to the multiplier 13. Thus the relevant multiplier to be adopted in this case is 15 for determining the loss of earnings. Thus the appellants-claimants are entitled to Rs.4,14,000/- (Rs.27,600 x 15) towards loss of earnings. This apart, the 1st appellant, who is the wife of the deceased is entitled for an amount of Rs.15,000/- towards loss of consortium. In addition to that, the claimants are entitled to an amount of Rs.15,000/- towards loss of estate. Thus in all me claimants are entitled to Rs.4,44,000/-towards compensation for the death of the deceased. The appellants are entitled to receive interest at the rate of Rs.12% per annum on the above compensation amount from the date of filing of the petition till the date of realisation.
The next aspect that has to be examined is apportionment of this compensation amount amongst the appellants-claimants. Appellant 1 is the wife, appellants 2 to 4 are the minor children and appellant 5 is the mother of the deceased. The mother of the deceased is aged about 65 years. Therefore, we feel it just and proper to award an amount of Rs.40,000/- to the 5th claimant. The 5th claimant shall be entitled to receive an amount of Rs.40,000/-along with the interest accrued thereon and she is permitted to withdraw the same. As stated above, the 1st claimant shall be exclusively entitled to an amount of Rs.15,000/- towards loss of consortium. Out of the remaining amount of Rs.3,89,000/-, claimants 1 to 4 shall be entitled to get equal shares i.e., Rs.97,250/- each. The 1st claimant is permitted to withdraw the compensation that fell to her share i.e., 15,000/- towards loss of consortium plus Rs.97,250/- = Rs.1,12,250/- along with the interest accrued thereon. Regarding the 2nd claimant, it is stated that he was aged 14 years at the time of filing of the petition and now he attained majority and studying Engineering. It is also submitted by the learned Counsel for the appellants that the 2nd claimant may be permitted to withdraw the entire amount that fell to his share with interest to meet his educational expenses. In the circumstances, the 2nd claimant is permitted to withdraw entire compensation amount awarded to his share along with the interest accrues thereon. As the claimants 3 and 4 are still minors, the 1st claimant is permitted to withdraw 50% of the compensation awarded to claimants 3 and 4 and the remaining 50% shall be in fixed deposit till they attain majority. However, the 1st claimant is entitled to withdraw interest that accrues on the fixed deposit amounts of claimants 3 and 4 once in six months. The 1st claimant is permitted to move the Tribunal to grant permission to withdraw any amount from the fixed deposits made in the names of minor claimants 3 and 4 to meet any contingency arising out of any expenditure that has to be met either in connection with the educational expenses or for other purposes relating to the minor claimants 3 and 4, and on filing such applications, the Tribunal shall examine the circumstances and pass appropriate orders.
The appeal is allowed in part as indicated above. No costs.