Susheela Bajpai vs Andhra Pradesh State Road Trans. Corpn.

V.N. Rao, J.—The claimant in O.P. No. 78 of 1980 on the file of the Motor Accidents Claims Tribunal-cum-Additional Chief Judge, City Civil Court, Secunderabad preferred this appeal claiming the enhancement of award from Rs. 30,000/- to Rs. 5,00,000/- .

Anil Kumar Bajpai (hereinafter referred to as ''the deceased'') was one of the sons of the Petitioner-Appellant. He was owning a Matador tempo bearing registration No. ADT 6077 and he himself was driving it for hire. At about 8.45 a.m. on 6.12.1979, when he was going in the said tempo, Super Delux bus bearing registration No. APZ 1507 belonging to R-1, Corporation, had come from the opposite direction and there was collision between the two vehicles on Tarnaka-Uppal road. In the said accident, the deceased sustained injuries to which he succumbed.

While it is the case of the claimant that the accident had taken place due to the rash and negligent driving of the bus, R-1 Corporation claimed that the accident was due to rash and negligent driving of the tempo by the deceased. The lower Tribunal held that the accident was due to the rash and negligent act of the driver of Super Delux bus belonging to R-1 Corporation.

The deceased was unmarried at the time of his death and he was aged 23 years by then. The version of the claimant is that the deceased was earning Rs. 6,000/- p.m. from the tempo. After taking over the relevant factors into consideration, the lower Tribunal awarded an amount of Rs. 30,000/- with interest at 6 per cent from the date of petition.

So the two points for consideration are:

(1) Whether R-2, the driver of the bus, or the deceased or both of them were responsible for the accident? and

(2) What is the just amount that can be awarded as compensation, if it can be held that R-2, the driver of the bus, or that both the deceased and R-2 were responsible for the accident?

Point No. 1

It can be seen from Exh. B-1 sketch that while the Super Delux bus was going on the up gradient, the tempo driven by the deceased was going along the down gradient. It also suggests that after the accident, the tempo was pushed back by the bus to the pavement left to the direction of the tempo. It is also in evidence that due to the accident, there was a puncture to the right front tyre of the bus. It is not a case of head-on collision. The right front portion of the tempo and the right front portion of the bus had come in contact.

On the basis of the evidence of PWs 4 and 5, the lower Tribunal held that the accident was due to the rash and negligent driving of the bus by R-2. The Learned Counsel for R-1 urged that the evidence of R-2 who was examined as RW 2 clearly discloses that the accident was only due to the rash and negligent driving of the tempo.

PW 5 is an interested witness. The evidence of PW 4 does not inspire confidence. It is doubtful whether he witnessed the accident. Further, persons may lie but not circumstances. Admittedly, while the bus was going up gradient, the tempo was going along the down gradient. Furthermore, on the basis of the evidence, it can be stated that the tempo had overtaken a stationary vehicle before the accident. The deceased while overtaking a stationary vehicle and when it was necessary to go down gradient, should have reduced the speed. Further, though it is also a case of going upgradient for the bus, R-2 should have been cautious in driving the bus when there was a stationary vehicle on his right side and when the possibility of vehicle suddenly coming from behind the stationary vehicle cannot be ruled out. Moreover, it is a case where the tempo was pushed back after the accident. So, it cannot be held that R-2 was not driving the bus rashly and negligently at the time of the accident. So the circumstances suggest that it is a case of negligence, both on the part of the deceased and R-2 and hence both of them are equally responsible for this accident and we find accordingly.

Point No. 2

In Nirmala Narsava v. Vilas Ramachandra Shangda 1989 ACJ 715 (AP), we held that in all cases of claims u/s 110-A of the Motor Vehicles Act which resulted in fatal accidents, an amount of Rs. 7,500/- had to be awarded towards loss of expectation of life and another sum of Rs. 7,500/- had to be awarded towards pain and suffering of the deceased as held in Y. Varalakshmi and Others Vs. M. Nageswara Rao and Others, . Hence in this case also the same amounts have to be awarded under the above two heads by way of non-pecuniary damages towards loss to the estate.

Between January, 1979 and January, 1980 an amount of Rs. 30,000/- was paid by the deceased in discharge of the loan taken for purchasing the tempo. On that basis it was urged for the Petitioner that the deceased used to get Rs. 2,500/- p.m. by running the tempo. It was urged for Respondents that it is merely a loan account and the amounts from the savings account of the deceased were transferred and as pass book is not produced, it cannot be urged that the entire amount utilized in discharging the loan was from out of the earnings of the deceased. Anyhow, when Respondents had not chosen to adduce any evidence to prove that one cannot earn to an extent of Rs. 2,500/- p.m. by operating tempo, the finding of the lower Tribunal that the deceased was earning Rs. 2,500/- p.m. cannot be held as erroneous.

The deceased was aged 23 years at the time of his death. So, if survived, he would have his marriage two or three years thereafter and the earnings of two to three years would come to Rs. 60,000/- to Rs. 90,000/- . Besides his father, he was having one younger sister and two younger brothers. It was stated that the father of the deceased was working as D.S.P. In view of the total number of members in the family it would have been necessary for the deceased to contribute major portion of his income to his family even after his marriage. Even the amount he could have saved and contributed to his family before his marriage would be to an extent of about Rs. 45,000/- if not more as his monthly earnings were estimated at Rs. 2,500/- p.m. The loss of dependency after the probable marriage of the deceased can be fixed at Rs. 40,000/- in view of the earning capacity of the deceased and the necessity for him to contribute to the family even after the marriage.

It is in evidence that an amount of Rs. 25,000/- was received from the insurance company towards value of the Matador tempo. In P.S. Naidu v. American Refrigeration Company 1978 (1) APLJ 364 , this Court held that there is a clear distinction between benefits received on account of death and those that are merely payable on the death of a person. When Petitioner had got an amount of Rs. 25,000/- from the insurance company towards the value of the Matador tempo, it is not an amount received by the claimant on account of death of the deceased. She merely succeeded to the estate of the deceased. Hence the amount of Rs. 25,000/- received from the insurance company towards the value of Matador tempo cannot be deducted from the amount ascertained towards loss of dependency.

Hence the pecuniary and non-pecuniary damages come to Rs. 1,00,000/- . As we held on Point No. 1 that both the deceased and R-2 are equally responsible for the accident, half of the amount ascertained towards pecuniary and non-pecuniary damages had to be awarded to the Petitioner. Hence an amount of Rs. 50,000/- (Rs. 1,00,000/- ? 2) is awarded as compensation.

In the result, the appeal is allowed in part. The award amount is enhanced to Rs. 50,000/- and it carries interest at 12 per cent per annum from the date of petition. In the circumstances, each party has to bear its own costs in this appeal.