IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FOURTH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1971 OF 2001 Between: Ganta Tukka Rao & another ..... Appellants AND Md. Ghousuddin & another ..... Respondents AND M.A.C.M.A.No.388 OF 2005 Between: Ganta Kantha Rao ..... Appellant AND Md. Ghousuddin & another ..... Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1971 OF 2001 & M.A.C.M.A.No.388 OF 2005 COMMON JUDGMENT: These two Civil Miscellaneous Appeals arise out of the same accident and are hence, being disposed of by this common judgment. 2. The appeals are directed against the awards in O.P.Nos.108 and 144 of 1998 in pursuance of the common order passed by the Motor Accidents Claims Tribunal-cum-Additional District Judge, Hyderabad, on 07.11.2000. 3. The factual background for the appeals is that Santosh Kumar and his junior paternal uncle were going on a moped near Mannur village of Adilabad district on 03.02.1997, when lorry No.AP 1T 1343 coming in the opposite direction in a high speed, driven rashly and negligently, hit the moped. Santosh Kumar, who was driving the moped, sustained head injury and other injuries and his junior paternal uncle sustained fracture of both bones of his left leg, grievous injuries on the back and other multiple injuries. Both were shifted to Gudihathnoor Police Station in a Jeep passing by, the owner of which gave a report which was registered as Crime No.11 of 1997 against the lorry driver. The injured and the deceased were referred to the Government Hospital, Adilabad, and then to Seams Hospital, Nagpur, for treatment and Santosh Kumar died four days after the accident, while he was being brought back from Nagpur to Hyderabad, whereas his junior paternal uncle was treated in various hospitals for about four months, but was still unable to regain normal health. 4. The parents of Santosh Kumar filed O.P.No.144 of 1998 claiming Rs.4,00,000/- as compensation consisting of Rs.3,04,000/- towards loss of life, loss of future earnings and loss of love and affection and the balance under other heads. The parents claimed that Santosh Kumar was running a bricks manufacturing and supply unit in Khanapur Mandal Head quarters earning Rs.10,000/- per month and a profit of Rs.5,000/- per month, which was entirely contributed to his parents. The junior paternal uncle was stated to be an under graduate diploma holder in Physical Education, waiting for appointment as a Physical Director and he filed O.P.No.108 of 1998 claiming a compensation of Rs.4,00,000/-. 5. While the owner and insurer of the lorry were sued for the said compensation, the owner remained ex parte before the Tribunal and the insurer denied all the allegations of the claimants. The insurer contended that the drivers of both the vehicles had no valid and subsisting driving licences, the vehicles were not roadworthy and the lorry was not insured with the insurer. The owner and the insurer of the luna moped were stated to be necessary parties and the moped itself was claimed to have been driven rashly and negligently. In any view, the insurer claimed the claims to be excessive. 6. In both the claim petitions, the Tribunal framed the issues about the responsibility for the accident and the entitlement of the claimants to compensation and in O.P.No.108 of 1998, an application under Section 170 of the Motor Vehicles Act, 1988, by the insurer was allowed. 7. During the common enquiry in both the claims, the Tribunal examined P.Ws.1 to 4 and R.W.1 and marked Exs.A1 to A22 and Ex.B1. 8. The Tribunal rendered the common award observing that P.W.2, the father of the deceased Santosh Kumar, was not an eye witness to the accident and it noted the discrepancy about the date of death of Santosh Kumar. The Tribunal, while accepting that Santosh Kumar and his uncle were injured in the accident and Santosh Kumar died due to the result of the injuries sustained during the accident, however, noted that the details of the driving licence of the deceased Santosh Kumar were not furnished inspite of directions of the Tribunal and the age of the deceased was found during the investigation by R.W.1 to be only 14 years. Even according to Ex.B1-Janma Patrika, he was aged only 15 years and consequently, the Tribunal considered P.Ws.1 and 2 to have not placed the truth before the Court and concluded that the owner of the moped was negligent in allowing the deceased boy, who had no age, experience or driving licence, to drive the moped and consequently, there can be no inference that the lorry driver was rash and negligent. On such conclusion about the failure of the claimants to prove the responsibility of the lorry driver for the accident, the Tribunal dismissed both the claims without costs against the owner and insurer of the lorry while noting that the owner and insurer of the moped are not on record. 9. The claimants in both the claims are before this Court with these appeals contending that the accident could not have been presumed to have occurred due to inexperienced driving by the deceased and Exs.A-20 and A-21 showing the business and income of the deceased could not have been ignored. The appellants contended that the deceased aged 20 years, was not a minor and the claimants should have been awarded the compensation as claimed without basing the conclusions on a Janma Patrika filed by the insurer, which is not a public document. 10. Sri Varanasi Venkateshwar, learned counsel for the appellants, and Smt. A. Jayanthi, learned standing counsel for the insurer in both the appeals are heard and the owner of the lorry/first respondent did not enter appearance in both the appeals. 11. The learned counsel for the appellants has also provided the certified copy of the charge sheet filed in Crime No.11 of 1997 before the concerned Magistrate for further elucidation of the claims of the appellants. 12. The points that arise for consideration in these appeals are: 1. Whether the accident in question occurred due to the rash and negligent driving of the lorry or whether it was due to the rash and negligent driving of the moped or due to any contributory negligence in driving the moped? 2. Whether the claimants are entitled to any compensation from the owner and insurer of the lorry and if so, to what extent? 3. To what relief? 13. POINT NO.1: The injured uncle of the deceased Santosh Kumar stated on oath before the Tribunal as P.W.1 that the lorry, driven rashly and negligently and coming in the opposite direction, turned to extreme right, while towing their two wheeler, resulting in injuries to him and Santosh Kumar. He also stated about the Criminal Case filed by the police against the lorry driver. His cross-examination about the age and driving licence of Santosh Kumar has no bearing on the responsibility for the accident and he denied the suggestions about colluding with the police to foist a false case against the lorry driver. While P.W.2, the father of the deceased, was not an eye witness to the accident, even R.W.1, the Private Investigator engaged by the insurer, was only speaking about the driving licence and the age of the deceased while confirming that Santosh Kumar died due to the injuries sustained in the accident. His evidence throws no light on the responsibility for the accident and the earliest version in Ex.A1-First Information Report is about the lorry dashing against the moped and injuring the two riders on the moped. While there was no other oral or documentary evidence throwing any light on the responsibility for the accident, the positive claims of P.W.1 corroborated by the earliest version in Ex.A1-First Information Report could not have been brushed aside, even in the absence of any documentary evidence with reference to age and absence of driving licence of the deceased. Only mere interestedness of the injured-P.W.1 could not have been a ground to reject his claims. Suspicion, however, strong it might be, about the possible contribution of the deceased to the accident due to his age and inexperience could not have been equated to proof of such circumstances in the face of the positive evidence of P.W.1. 14. The charge sheet in Crime No.11 of 1997, filed by Gudihathnoor Police before the concerned Magistrate shows that the statutory investigating agency, after investigation, opined that the lorry driver was guilty of the offences punishable under Sections 304-A and 338 of the Indian Penal Code, 1860, in respect of the accident and both the offences necessarily involve rash and/or negligent acts. The Sub-Inspector of Police, who filed the charge sheet, stated that the investigation had revealed that the lorry was driven rashly and negligently and in coming to such a conclusion, the police had the benefit of examining the scene of offence and the examination of the lorry by the Motor Vehicles Inspector, apart from examining the person on whose statement, Ex.A1-First Information Report was recorded. Though Sri Varanasi Venkateshwar, learned counsel for the appellants had admitted that the accused-lorry driver was acquitted on being given the benefit of reasonable doubt by the criminal Court, the claim of the learned counsel that the criminal Court did not find the accusation to be false need not be doubted. If so, for the purpose of deciding the civil rights of the parties on the broad human probabilities arising out of the evidence on record, it can be concluded that the accident was probablised to have occurred due to rash and negligent driving of the lorry with no corresponding or contributing negligence on the part of the deceased Santosh Kumar. It has to be incidentally noted that the charge sheet mentioned the deceased Santosh Kumar to be aged 18 years by the time of his death. 15. POINT NO. 2: In view of the conclusion about the responsibility for the accident and in the absence of any dispute about the ownership of the lorry with the first respondent and its subsisting insurance with the second respondent, the claimants are entitled to be justly and adequately compensated jointly and severally by both the respondents. 16. Insofar as the deceased Santosh Kumar is concerned, there was controversy about his age and also his doing the alleged business and earning the alleged income by the time of his death. The father of the deceased as P.W.2, produced Exs.A20 and A21 relating to the business, in bricks, of the deceased and P.W.4 was examined to corroborate the claims of P.W.2 about such business. More over, in view of the controversy about the age of the deceased, which was stated to be anywhere between 14 years to 20 years and in the absence of any evidence about the probable income, which he was deriving from his alleged business, an element of guess and estimate becomes inevitable in assessing the compensation to which the parents are entitled. 17. Smt. A. Jayanthi, learned standing counsel for the insurer, invited attention in this connection to the decision reported in ORIENTAL INSURANCE CO. LTD. VS. SYED IBRAHIM AND OTHERS[1], wherein the Apex Court pointed out that there are some aspects of human life which are capable of monetary measurement, but the determination of damages for loss of human life is an extremely difficult task and becomes all the more baffling when the deceased is a child and/or a non-earning person. Still, the Apex Court took into account that the child has a prospect to earn and a good deal of guesswork is involved in arriving at the figure of compensation. While the age of the parents was stated to be the relevant factor, the Apex Court laid down that in case of young children of tender age, in view of the uncertainties, neither their income at the time of death nor the prospects of the future increase in their income, nor chances of advancement in their career are capable of proper determination on estimated basis and the financial loss suffered by the parents is also stated to be incapable of mathematical calculation. Consequently, the Apex Court confirmed the award of compensation of Rs.51,500/- by the Tribunal in respect of a boy of seven years. 18. In contrast, Sri V.V.N. Narayana Rao, learned counsel for the appellants relied on a decision reported in STATE OF HARYANA AND ANOTHER VS. RAM BHAJ[2], in which in respect of the death of a boy aged 15 years, the Apex Court applied a multiplier of 15 to the notional income of Rs.15,000/- per annum under the Second Schedule to the Motor Vehicles Act, 1988, and awarded compensation of Rs.2,25,000/-. 19. In the absence of proof of the income of the deceased from the business he was allegedly carrying on and also the absence of definite proof about his age in controversy, adopting the notional income prescribed by the Second Schedule to the Motor Vehicles Act, 1988, as the basis at Rs.15,000/- per annum and taking the loss of contribution to the parents as 2/3rd of such income deducting 1/3rd towards the probable expenses, which the deceased would have incurred had he been alive, the compensation can be awarded on an annual loss of contribution of Rs.10,000/- and the appropriate multiplier referable to the age of the mother at 47 years under the said Second Schedule is 13. Apart from Rs.1,30,000/- so awardable, the Second Schedule also provides for grant of Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate apart from one time medical expenses of Rs.15,000/- and general damages for pain and suffering for injuries and disabilities. In the present case, the deceased was under treatment for four days after the accident and he was first shifted to the nearest Mandal hospital and then to the hospital at Nagpur and when he was being brought back to Hyderabad, he died on the way. Granting a further sum of Rs.20,000/- in lump sum towards various pecuniary and non- pecuniary damages to which the claimants may be entitled will be awarding just and adequate compensation. Therefore, the parents are entitled to a total compensation of Rs.1,50,000/- in the case of death of Santosh Kumar. 20. In respect of the claim of his uncle based on the consequences of the injuries suffered during the accident, he claimed as P.W.1 about spending Rs.2,500/- for transport to Nagpur, Rs.2,000/- towards fee to Dr. Ramulu, Rs.9,500/- towards treatment with Dr. Prashanth Katem, apart from three bills of Rs.6,800/- for the transport and two bills of Rs.704/- and Rs.147/- for diesel and medicines respectively. He also claimed that he has spent Rs.100/- for Ex.A16-Pathological Report and the specific amounts about which he had spoken thus, come to about Rs.25,700/-, apart from his claim of needing Rs.15,000/- to Rs.20,000/- for his further surgery. The injuries suffered by him are not evidenced by any medical certificate admitted into evidence and Ex.A7-Disability Certificate shows that there was mal-united fracture of both bones of the left leg resulting in 50% disability. However, the person, who issued Ex.A7, was not examined nor was there any other medical evidence to probablise any temporary or permanent disability sustained by P.W.1 due to the fracture injury to the left leg. As such, for assessing a reasonable compensation payable to him, it has to be concluded that he has suffered a fracture in the left leg and he had incurred expenses for the treatment, transport and other inevitable consequential expenses. His claim for Rs.4,00,000/- as compensation is obviously abnormally exaggerated and cannot be considered. For the pain and suffering he has suffered due to the grievous injury, the loss of income for the period of hospitalization, the expenses towards medicines, transport, attendant charges and other inevitable expenses and all other heads of pecuniary and non-pecuniary damages, award of a lump sum compensation of Rs.30,000/- will meet the ends of justice. As there was no definite evidence of any disability temporary or permanent, the claims of P.W.1 about requirement of any more treatment or any more surgeries cannot be acted upon and all the amounts covered by Exs.A7, A8, A9, A10, A11 and A16 cannot be permitted in the absence of any evidence by the persons connected with the issuance of those documents. 21. Under these circumstances, the compensation has to be confined to Rs.30,000/-. 22. In view of the length of time for which the respondents have to pay interest on the compensation being awarded now, it can be restricted to 6% per annum and proportionate costs on the compensation awarded have to follow suit as a natural consequence. 23. In the result, the awards in O.P.Nos.108 and 144 of 1998, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, Adilabad, dated 07.11.2000, are set aside and in O.P.No.108 of 1998, a compensation of Rs.30,000/- with interest thereon on 6% per annum from the date of petition till the date of realization and proportionate costs is awarded to the claimant against the respondents 1 and 2 jointly and severally and in O.P.No.144 of 1998, a compensation of Rs.1,50,000/- with interest @ 6% per annum from the date of the petition till the date of realization and proportionate costs thereon is awarded to both the claimants against the respondents 1 and 2 jointly and severally and the compensation shall be shared equally between the claimants 1 and 2. No further directions need be given at this distance of time regarding disbursement of the compensation to the claimants in both the cases and O.P.Nos.108 and 144 of 1998 are thus, allowed in part and the Civil Miscellaneous Appeals are, accordingly, allowed in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 24th September, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1971 OF 2001 & M.A.C.M.A.No.388 OF 2005 September 24, 2010. KL [1] AIR 2008 Supreme Court 103 (1) [2] 2005 ACJ 100