IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE NINETEENTH DAY OF OCTOBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.Nos.18 of 2008 and 3762 of 2009 & Cross Objections M.A.C.M.A.No.18 of 2008 Between: Pitla Vinoda and 4 others ..Appellants AND The General Manager, APSRTC, Musheerabad, Hyderabad and 2 others .. Respondents M.A.C.M.A.No.3762 of 2009 Between: The General Manager, APSRTC, RTC X Road, Musheerabad, Hyderabad ..Appellants AND Pitla Vinoda and 6 others .. Respondents Cross Objections in M.A.C.M.A.No.3762 of 2009 Between: P. Bhoomaiah and another ..Cross Objectors AND The General Manager, APSRTC, Musheerabad, Hyderabad and 5 others .. Respondents COMMON JUDGMENT: Both the appeals and cross objections in M.A.C.M.A.No.3762 of 2009 arise out of the award in O.P.No.301 of 2006 on the file of the Motor Accidents Claims Tribunal-cum- Principal District Judge, Medak at Sanga Reddy, dated 10-05- 2007. The factual background is that on 2-12-2005 Ramakistaiah was going as a pillion rider on the motorcycle driven by his friend and near New Hunnapur village, bus No.AP 11-Z-1602 belonging to APSRTC, driven rashly and negligently, came to the wrong side and dashed the motorcycle. Ramakistaiah sustained head injury and died while undergoing treatment at the hospital. Pulkal police registered Crime No.72 of 2005 against the bus driver and on the death of Ramakistaiah earning Rs.5,000/- per month as contractor, the wife, four minor children and aged parents lost their sole source of livelihood. Therefore, the wife and children filed the claim for a compensation of Rs.5,00,000/- impleading the parents as respondents 2 and 3. The Corporation contested the claim putting the claimants to strict proof and also referring to O.P.No.300 of 2006 already filed by the claimants for compensation on the death of Ramakistaiah. The Corporation also claimed the claim to be excessive and desired the claim to be negatived. Respondents 2 and 3, the parents, contended that all of them together filed O.P. 244 of 2006 and after leaving the company of the parents, the daughter-in-law and grandchildren filed a separate claim in O.P.No.301 of 2006. The parents claimed that they are also entitled to compensation. The Tribunal found on verification that O.P.No.244 of 2006 on its file filed by the claimants and respondents 2 and 3 was in respect of the same cause and therefore, the Tribunal clubbed the said claim in O.P.No.244 of 2006 also with this claim. The Tribunal framed issues on the responsibility for the accident and entitlement of the claimants to compensation and the quantum thereof. PWs.1 and 2 and RW.1 were examined and Exs.A.1 to A.5 were marked during enquiry. The Tribunal rendered the impugned award referring to the evidence of PW.2, who claimed to be an eye-witness to the accident and it observed PW.2 to have been corroborated by the contents of Ex.A.1-FIR and Ex.A.2-charge sheet. The Tribunal also noted that the Motor Vehicle Inspector noted in Ex.A.5 that the accident was not due to any mechanical defect and therefore, in the absence of any contrary evidence, it accepted the claim of PW.2 about the responsibility for the accident being with the driver of the bus. The Tribunal noted the admitted relationship of the claimants and respondents 2 and 3 with the deceased Ramakistaiah and relied on Ex.A.3-Inquest report and Ex.A.4-Post Mortem report to consider the age of the deceased to be 35 years by the time of his death. In the absence of any definite evidence about his income as a contractor, the Tribunal estimated the same at Rs.100/- per day or Rs.3,000/- per month and deducted 1/3rd of such assessed earnings towards personal expenses, which the deceased would have incurred had he been alive. On the remaining sum treated as contribution to the family at Rs.24,000/- per annum, the Tribunal applied a multiplier of 14.81 as per Bhagwan Das v. Mohd. Arif (1987 (2) ALT 137) and further reduced the same to 14 with reference to AIR 1994 SC 1631. Apart from the loss of dependency so calculated at Rs.3,36,000/-, the Tribunal also awarded Rs.15,000/- towards loss of consortium to the wife and Rs.15,000/- towards loss of estate and on the total sum of Rs.3,66,000/-, the Tribunal awarded interest at 7.5% p.a. from the date of petition till realisation and proportionate costs. It gave further directions about the disbursement of the compensation. In M.A.C.M.A.No.18 of 2008, the claimants in O.P.No.244 of 2006 challenged the said award contending that on the death of Ramakistaiah, husband and father of the appellants, the Tribunal should have granted the entire compensation as claimed. As the deceased was earning Rs.5,000/- per month as petty contractor at the age of 30 years, on whom 7 members of the family were dependent, the Tribunal was claimed to have gone wrong in assessing the compensation against the decided precedents. Hence, they sought for allowing the claim as made. In M.A.C.M.A.No.3762 of 2009, the APSRTC challenged the award contending that PW.1 was not the complainant before the police or the Magistrate and the complainant on whose report the FIR was registered was not examined. The Corporation also contended that PW.2, never cited as a witness earlier in the FIR and the charge sheet, therefore, could not have been considered by the Tribunal. The Corporation also contended that the claimants have to establish the rash and negligent driving by the driver of the bus in which they failed and in fact, it is a case of collision between the two vehicles and the percentage of contributory negligence on the part of the driver of the motorcycle ought to have been determined to reduce the compensation. The Corporation also contended that the assessment of the income of the deceased at Rs.3,000/- per month, the assessment of his age without any evidence and award of high compensation are not sustainable and the Corporation, therefore, desired the claim of the claimants to be negatived. The parents filed their cross-objections in M.A.C.M.A.No.3762 of 2009 contending that the Tribunal erred in deducting 1/3rd towards personal expenses of the deceased. The dependents on the deceased Ramakistaiah being seven, the deduction ought not to have exceeded 1/5th of the assessed income. The total compensation as claimed by the claimants ought to have been awarded and the Tribunal failed to follow the accepted principles of assessment of compensation in awarding only a meagre compensation. The parents also, therefore, desired that the entire claim be awarded. Heard Sri C. Sunil Kumar Reddy, learned standing counsel for APSRTC, Sri B. Laxman, learned counsel for the cross- objectors in M.A.C.M.A.No.3762 of 2009 and Sri Arun Kumar Nalimela, learned counsel, representing Sri V. Ravi Kiran Rao, learned counsel for the appellants in M.A.C.M.A.No.18 of 2008. The following points arise for consideration on the above material on record. 1) Whether the responsibility for the accident could have been fixed on the driver of RTC bus? 2) Whether the claimants and the parents of the deceased are entitled to the entire compensation claimed? 3) To what relief? Point No.1: The Tribunal placed the responsibility for the accident on the bus driver based on the evidence of PW.2 on oath before it, corroborated by the contents of Ex.A.1-FIR, Ex.A.2-Charge sheet and Ex.A.5-M. V. Inspector’s report. While Ex.A.5 ruled out the possibility of the accident occurring due to any mechanical defect in the bus, Ex.A.2-charge sheet contains the result of independent investigation by the statutory investigating agency confirming the suspicions in the earliest version in Ex.A.1 about the culpability of the bus driver alone in causing the accident with his rash and negligent driving. If the Corporation has any contrary evidence, it ought to have placed the evidence before the Tribunal. But, no oral or documentary evidence was adduced by the Corporation before the Tribunal. PW.2 is now claimed in the grounds of appeal to be not an eye-witness, but no material is available on record to suspect the claims of PW.2 to be an eye-witness and merely on the strength of unconfirmed grounds raised in the grounds of appeal by the Corporation, it cannot be concluded that PW.2 was not an eye-witness or Ex.A.1-FIR and Ex.A.2-charge sheet do not have any dependable corroboration to the claims of PW.2. While it is true that the factum of rash and negligent driving of the offending vehicle has to be proved by the claimants, in the light of the positive evidence of PW.2 and Exs.A.1, A.2 and A.5, it cannot be said that the claimants failed in discharging the said burden of proof. In the absence of any contradicting evidence for the Corporation, the conclusions of the Tribunal cannot be considered either baseless or unreasonable and therefore, this point has to be answered against the Corporation. Point No.2: Coming to the assessment of the compensation, the Tribunal was cautious enough in not accepting the claims of the claimants about the age of the deceased and as against the claim that he was aged 30 years, it depended on Ex.A.3-Inquest report and Ex.A.4-Post Mortem report, to assess the age of the deceased as 35 years. The independent mediators, who conducted the inquest under Ex.A.3 and the medical expert, who conducted the post mortem on the dead body of the deceased Ramakisthaiah under Ex.A.4, can be relied on in the absence of any contrary evidence concerning the age of the deceased, and therefore, the said conclusion of the Tribunal needs no interference. Coming to the occupation of the deceased, there was positive evidence of PW.1, apart from the claims of PW.2 and RW.1 that the deceased was doing petty contract works. Though the claim that he was earning Rs.5,000/- per month is not only tainted with interestedness, but also unsupported by any documentary evidence, the assessment of the Tribunal about his income at Rs.100/- per day or Rs.3,000/- per month cannot be considered to be too high or too low keeping in view that at or about the relevant time, the minimum wages, which an unskilled labourer would have earned under the Minimum Wages Act, are about Rs.2,200/- or Rs.2,300/-. The deceased having responsibility to maintain his wife, 4 minor children and aged parents would have undoubtedly engaged himself in some avocation that would provide minimum sustenance to all of them and there is also no reason, in the absence of any positive material, to deviate from the assessment of the probable income by the Tribunal with its experience and wisdom and it is well settled that in such assessment, an element of guess and estimate are inevitable. Coming to the multiplier that should have been adopted, irrespective of the decisions on which the Tribunal placed its reliance in this regard, by now, in view of the decision reported in Sarla Verma and others v. Delhi Transport Corporation and another[1] the appropriate multiplier for a person aged 35 years would have been 16 and the same should be applied. Coming to the deduction made at 1/3rd of the assessed income towards personal expenses, which the deceased would have incurred had he been alive, it is now well settled in the same decision that in case of married persons, the deduction towards personal and living expenses should be 1/5th where the number of dependant family members exceeds ‘6’. As the dependents on the deceased Ramakistaiah in the present case are 7, the deduction should be confined to 1/5th alone. If the monthly income of the deceased were to be assessed at Rs.3,000/- and 1/5th of the same were to be deducted towards personal expenses of the deceased, the loss of dependency for 7 dependants would be Rs.2,400/- per month or Rs.28,800/- per annum. If a multiplier of 16 were to be adopted, the total loss of dependency would be Rs.4,60,800/-. The amount of Rs.15,000/- granted towards loss of consortium to the wife and Rs.15,000/- towards loss of estate are at the normal scales and needs no interference and if so, the total amount to which the claimants should be entitled would come to Rs.4,90,800/- and it can be rounded off to Rs.4,91,000/-. The said compensation can be directed to be shared in the same proportion in which the Tribunal directed the compensation awarded by it to be shared between the claimants and the parents. Insofar as the interest to be awarded on the enhanced portion of the compensation is concerned, in view of the length of time for which the Corporation, a public concern, should pay such interest, the same can be confined to 6% p.a. and proportionate costs shall follow suit. Accordingly, the award in O.P.No.301 of 2006 on the file of the Motor Accidents Claims Tribunal-cum-Principal District Judge, Medak at Sanga Reddy, dated 10-05-2007 is modified by granting a further compensation of Rs.1,25,000/- with interest thereon at 6% p.a. from the date of petition till realisation and proportionate costs, in addition to the compensation already awarded by the impugned award and the compensation shall be shared between the claimants 1 to 5 and respondents 2 and 3 in the same proportion, in which the original compensation was directed to be shared between them by the Tribunal in the impugned award. There is no need to give any further directions about the disbursement of the compensation at this distance of time except clarifying that the enhanced shares of compensation of minor petitioners 2 to 5 shall be invested in a Nationalised Bank until they attained majority respectively with an option to the mother, the first petitioner, to withdraw the annual interest accrued thereon for upkeep and maintenance of the minor children. M.A.C.M.A.No.18 of 2008 and Cross objections in M.A.C.M.A.No.3762 of 2009 are accordingly allowed in part and M.A.C.M.A.No.3762 of 2009 is dismissed and the parties shall bear their own costs. _____________________ G. BHAVANI PRASAD, J Date: 19-10-2010 Ksn [1] 2009 ACJ 1298