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Judgment
S. Dasaratharama Reddy, J.—On 6-9-1985 at about 7 p.m. one Ranganayakamma aged about 40 years who was working as Auxiliary Nurse in the Primary Health Centre, Duvuur, died in a road accident involving an oil tanker bearing No. M.D.M. 2325 belonging to the 3rd respondent herein. The sons of the deceased filed O.P.No. 144/86 on the file of Motor Accidents Claims Tribunal, Cuddapah claiming compensation of Rs. 1,00,000/- alleging that the accident was caused due to the rash and negligent driving by the driver of the oil tanker.
The owner of the oil tanker remained ex parte in the Tribunal while the Insurance Company with which the vehicle was insured opposed the claim alleging that the accident occurred due to the negligence of the deceased and in any event the compensation claimed is excessive. The Tribunal held that the accident occurred due to the rash and negligent driving by the driver and awarded compensation of Rs. 1,05,000/- which was split up into Rs. 15,000/-under no fault liability u/s 92-A of the M.V. Act and Rs. 90,000/- under fault liability u/s 110-C of the M.V. Act. The Insurance Company filed this appeal against this order.
Though normally it is not open to the Insurance Company to raise these pleas, in view of the fact that the owner was ex parte in the Tribunal, the Insurance Company was permitted to raise this plea by the Tribunal though there is no formal order to that effect.
Rash and negligent driving:- The learned counsel for the appellant has contended that the accident was caused due to the contributory negligence of the deceased who was negligent in crossing the road after alighting from the bus. As per Ex.A-5 the Motor Vehicles Inspector''s report, the brakes were in good condition and there was no other mechanical defect. P.W.2 who was the eye witness to the accident and who was a resident of the village where the accident took place deposed that the oil tanker was coming with high speed even without blowing horn and the deceased alighted from the bus and came on to the road behind the bus and was run over by the oil tanker. The driver was not examined by the Insurance Company. Under these circumstances, as held by the Supreme Court in Basthi Kasim Saheb v. Mysore S.R.T. Corporation, : AIR1991SC487 the principle of res ipsa loquitur applies, and the burden is on the owner or the driver to show that there was no negligent or rash driving. Hence, the finding of the Tribunal is quite reasonable and is in accordance with law. Hence, the first contention is rejected.
Quantum:- The deceased was working as Auxiliary Nurse drawing a salary of Rs. 1,078/- p.m. rounded off to Rs. 1,100/- p.m. Though as per the service Register Ex. A-3, her date of birth is 1-5-1949 and she was aged 36 years at the time of her death, the Tribunal took her age as 40 years as per the age shown in the petition. However, this discrepancy is not material and does not affect the result of the appeal as well be seen from the following discussion.
The Tribunal has determined that the deceased would have provided Rs. 650/- p.m. for her two sons and accordingly arrived at Rs. 7,800/- as multiplicand. The Tribunal took the multiplier as 18 evidently on the ground that she has 18 years of service more and after deducting 25% for lumpsum payment, determined the present value of future loss of earnings at Rs. 1,05,300/-. But as per the Table given in Bhagwandas Vs. Mohd. Arif, , which was approved by the Division Bench of this Court in Nirmala Narsava v. Vilas Ramachandra Shangda ( 1989 A.C.J. 715), the multiplier will be 13 (12.79 + 0.21, which can be added because the deceased was a female). Thus, the pecuniary damages towards the present value of future loss of earnings will be Rs. 1,01,400/-. But as the respondents have claimed Rs. 1,00,000/- only, the compensation has to be restricted to Rs. 1,00,000/-. But the Tribunal has erred in granting Rs. 90,000/- in addition to Rs. 15,000/- under no fault liability. Evidently, the Tribunal thought that Rs. 15,000/ - u/s 92-A of the M.V. Act is independent, and in addition to the compensation payable under fault liability u/s 110-C of the M.V. Act. This is contrary to Section 92-B of the M.V. Act as per which the total compensation under fault liability must be first determined and if it is more than the compensation payable under no fault liability, the amount under no fault liability has to be ignored and if the fault liability compensation is less than the amount under no fault liability, no fault liability amount has to be given. Thus, in the instant case, the claimants will be entitled to Rs. 1,00,000/- only and not Rs. 1,05,000/-.
The learned counsel for the appellant has also contended that one of the sons of the deceased i.e., P.W.1 was given employment in Government service on compassionate grounds on his mother''s death and hence some amount has to be deducted. I find no substance in this contention. The son got the employment by virtue of the Government Order authorising the head of the department to provide employment to the children of the deceased-employee. P.W.1 did not get the job because of the death of the mother in the accident. He would have got the job even if his mother died due to any other reason. There is no nexus between the death caused by the accident and the job provided to the son and the tort-feasor cannot claim the benefit of any deduction from his liability on this ground.
It is also contended by the learned counsel for the Insurance Company that the compensation claimed is excessive since the sons are employed and do not require any amount. This is based on a misconception. There is no substance in this contention since the dependants have a right to claim pecuniary damages towards loss of earnings which they would have got had the deceased been alive and this right has nothing to do with their needs. If this argument accepted, anomalous result will follow that in case of death of an affluent person, the tort-feasor can escape the liability on the plea that the dependants who are also affluent persons do not need any amount. Such pleas are not relevant in the case of claims of compensation against the tort-feasors.
Though the claimants are entitled to a minimum of Rs. 15,000/- towards non-pecuniary damages for pain and suffering, loss of amenities of life and loss of expectation of life as per the decision in Y. Varalakshmi and Others Vs. M. Nageswara Rao and Others, no further amount can be granted since the petitioners have claimed total compensation of Rs. 1,00,000/- only.
In view of the above, the appeal is partly allowed to the extent of Rs. 5,000/- with costs and is dismissed for the balance of Rs. 85,000/- with costs.