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Judgment
Heard learned standing counsel Sri Thoom Srinivas for the appellant-TSRTC and Sri. K.Venkatesh Gupta, learned counsel for respondents/claimants.
The present appeal has been filed by the appellant-TSRTC challenging the award passed by the Motor Accidents Claims Tribunal-cum-IV Additional District and Sessions Judge at Mahabubnagar (for short, ‘Tribunal’) in MVOP No.348 of 2018, dated 13.12.2022 and thereby to set aside the award passed by the Tribunal.
The brief factual matrix of the present appeal is as under.
On 05.08.2018 at about 7.30 p.m., while the respondent no.1 herein along with his wife-Yadamma and their two daughters were proceeding from Gattu Thumman village to Hyderabad on motor cycle bearing No.TS-06-EF-1176 and when they reached the limits of Panjugula village Kalwakurthy BT Road, a TSRTC bus bearing registration No.AP-28-Z-2271, being driven by respondent no.1, which was proceeding from Kalwakurthy to Tekulapally, in rash and negligent manner and dashed their motor cycle. Due to which, his wife and two daughters fell on the ground and his wife-Yadamma and his daughter-Yamini died on the spot. The Police, Kalwakurthy P.S., registered a case in Crime No.199/2018 under Sections 304-A and 337 IPC against the driver of the offending vehicle and filed charge sheet.
The claimants, i.e., respondent Nos.1 and herein, who are husband and daughter of deceased-Yadamma, have filed claim petition against driver of the bus and the appellant under Section 166 of Motor Vehicles Act, 1988 before the Tribunal claiming compensation of Rs.12,00,000/- along with interest from the date of the petition till the date of deposit.
The deceased was aged about 28 years as on the date of accident, hale and healthy and was working as coolie and earning Rs.10,000/- per month and contributing the same for the benefit of the family and claimants lost the support of the deceased.
The driver of the crime vehicle i.e., respondent no.3 herein, remained ex parte.
The appellant-TSRTC filed counter denying the case of the claimants and disputed the manner and mode of the accident and contended that accident occurred due to negligent riding of the claimant no.1 himself and he has not having driving license and it was not insured, as such, falsely filed the complaint against the driver of the crime vehicle. Moreover, the amount claimed by the claimants is excessive and they are not liable to pay compensation and prayed to dismiss the claim petition.
On the basis of the above pleadings, the Tribunal framed the following issues:
i) Whether the accident dated 05.08.2018 was caused due to the negligence of the vehicle bearing no.AP-28-Z-2271 and due to rash and negligence driving of respondent no.1?
ii) Whether petitioners are entitled for compensation? If so, what is quantum and from whom?
iii) To what relief ?
In order to substantiate the case, on behalf of the claimants, PW.1 was examined and Exs.A1 to A6 were marked. On behalf of TSRTC, no witness was examined and no document was marked.
The Tribunal on due consideration of evidence and material placed on record, came to a conclusion that the accident took place due to rash and negligent driving of TSRTC Bus and awarded compensation of Rs.11,81,000/- along with costs and interest @9% per annum from the date of petition till the date of deposit. The driver of the offending vehicle and the appellant-TSRTC were held to be jointly and severally liable to pay the said compensation.
During the course of hearing of appeal, learned standing counsel for the appellant-TSRTC contended that Tribunal erred in holding that accident occurred due to rash and negligent driving of the driver of bus without there being any acceptable evidence on record. He submitted that Tribunal erred in deducting 1/4th of the income of the deceased instead of 1/3rd towards personal and living expenses. The Tribunal ought to have appreciated that claimant no.1 drove the motor cycle in drunken state in rash and negligent manner and there is contributory negligence on his part. He further submitted that Tribunal erred in adding 40% of the income of the deceased towards future prospects without there being any proof. He further submitted that Tribunal erred in granting interest @ 9% per annum without following the principles laid down by the Hon’ble Apex Court in T.N.State Transport Corporation Ltd., v. S.Raja Priya and others1 and finally, prayed to set aside the award passed by the Tribunal.
On the other hand, learned counsel for the respondent Nos.1 and 2-claimants would submit that on due consideration of the evidence and material placed, the Hon’ble Tribunal had rightly awarded the compensation and the grounds raised by the appellants are untenable and therefore, prayed for dismissal of the appeal.
Consideration :
Coming to the first ground raised by the learned counsel for appellant-TSRTC that the Tribunal erred in coming to conclusion that the accident occurred due to rash and negligent driving of the bus by its driver, disputing the accident that occurred on 05.08.2018, this Court is of the opinion that TSRTC has failed to discharge its obligations so far as proving the contention raised by it by placing cogent, substantial material and evidence in support of its contention. TSRTC neither examined any witness nor marked any document to support their contention.
There is no dispute with regard to the death of the deceased-Yadamma. As per Ex.A2-copy of inquest panchanama and Ex.A4-copy of PME report of the deceased, it was established that on 05.08.2018 deceased Yadamma received injuries and died due to head injury and the said injury was caused in a road accident by offending vehicle driven by its driver i.e., respondent no.3 herein. Further, there is no material on record to substantiate the contention that respondent no.3 herein was not responsible for the said accident. Thus, this Court is of the considered opinion that the Tribunal had rightly came to conclusion that accident occurred due to rash and negligent driving of TSRTC Bus by its driver.
Insofar as the other contention raised by the learned standing counsel for appellant that the Tribunal erred in deducting 1/4th of monthly income of the deceased instead of 1/3rd, as per the decision of Hon’ble Apex Court in Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another (2009) 6 SCC 121, at paragraph-30, where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third, where the number of dependent family members is 2 to 3. The Tribunal deducted 1/4th towards personal expenses of the deceased. In the present case, the dependents of the deceased are only two i.e., husband and daughter of the deceased. Therefore, the deduction should be 1/3rd towards personal and living expenses of the deceased.
In view of the above, in considered opinion of this Court, the Tribunal erred in deducting 1/4th, instead of 1/3rd towards personal and living expenses of the deceased and the compensation amount has to be recalculated by deducting 1/3rd towards personal and living expenses of the deceased.
Insofar as addition of income of the deceased towards future prospects, the Tribunal had added 40% of the income of the deceased towards loss of future prospects. Since the deceased was self-employed and was aged about 26 years as on the date of accident, in view of the paragraph-59.4 of the decision of Hon’ble National Insurance Co. Ltd., vs. Pranay Sethi and others (2017) 16 SCC 680, the Tribunal had rightly added 40% of the income of the deceased towards future prospects. In considered opinion of this Court, there is no need to interfere with the addition of 40% of the income of the deceased towards loss of future prospects.
The other contention raised by the learned standing counsel with regard to contributory negligence on the part of the claimant no.1 in driving the motor cycle in a drunken state, the Tribunal on considering Ex.A3-CDF and Ex.A5-report of MVI, held that offending vehicle was at fault and there is no material on record to prove that driver of the crime vehicle was not responsible for the said accident and even the driver did not turn up and disprove the allegations leveled against him. In considered opinion of this Court, there is no contributory negligence on the part of the rider of the motor cycle i.e., respondent no.1 herein.
With regard to the quantum of interest awarded, the Hon’ble Supreme Court very recently in the case of Anjali and others vs Lokendra Rathod and others 2023(1) ALD 107(SC) decided on 06.12.2022, had granted interest @ 9% per annum. find any reason to interfere with Tribunal. Therefore, this Court does not the interest awarded by the Tribunal.
Conclusion:
In view of the above discussion, the compensation amount is recalculated as under:
Sl.No.
Head
Compensation awarded
1
Income
Rs.60,000/- per annum (Rs.5,000/- per month)
2
Future prospects
Rs.24,000/- (i.e., 40% of the income)
3
Deduction towards personal expenses
Rs.28,000/- (i.e., one-third of Rs.60,000/- + Rs.24,000/-)
4
Total Income
Rs.56,000/- (i.e., Rs.60,000/- +
Rs.24,000/- (-) Rs.28,000/-)
5
Multiplier
17
6
Loss of dependency
Rs. 9,52,000/- (i.e., Rs.56,000/- x 17)
7
Compensation for loss of consortium (Rs.40,000/- x 2)
Rs. 80,000/-
8
Loss of estate
Rs. 15,000/-
9
Funeral expenses
Rs. 15,000/-
Total compensation to be paid :
Rs.10,62,000/-
In the result, Appeal is partly allowed and the impugned award passed by the Tribunal insofar as compensation amount is concerned, is modified. The above compensation amount shall carry interest @ 9% per annum from the date of the claim petition till the date of realization. The appellant-TSRTC and the driver of the crime vehicle i.e., respondent no.3 herein are jointly and severally liable to pay the above compensation amount to the claimants and are directed to deposit the said amount within a period of six weeks from the date of receipt of copy of this order, duly adjusting the amount already deposited by the appellant. The claimants are entitled to the apportionment of the amount as directed by the Tribunal. There shall be no order as to costs.
Pending miscellaneous applications if any shall stand closed.