IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE ELEVENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1695 of 2000 Between: Smt. G. Seethamahalakshmi & 4 others .. Appellants AND U. Venkateswara Rao & another .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1695 of 2000 JUDGMENT: The appeal is directed against the award in O.P.No.1111 of 1993, on the file of the Motor Accidents Claims Tribunal-cum- Additional Chief Judge-cum-Principal Special Judge for SPE and ACB Cases, Hyderabad, dated 05.11.1996. 2. G.V.R.K. Rao, husband of the first claimant and father of the minor claimants 2 to 4, was working as a driver in APSRTC, earning a monthly salary of Rs.1,939.50 Ps. at the age of 32 years. On 15.06.1993 at about 9.25 p.m., he stopped his bus No.AP 9Z 1275 on the extreme left side of the road and was crossing the road by walk to collect the chart. Allwyn Nissan No.ABT 3020, driven rashly and negligently, dashed against him resulting in grievous bleeding injuries on the head and his death on 05.08.1993 at 8.00 a.m. while undergoing treatment. S.R. Nagar Police registered Crime No.322 of 1993 against the Allwyn Nissan driver and the claimants are totally dependent for their livelihood on the deceased and, hence, they claimed a compensation of Rs.3,00,000/- from the owner and insurer of the Allwyn Nissan vehicle. 3. The owner of the Allwyn Nissan vehicle denied the claimants’ allegations and contended that a false case was registered against his driver though the vehicle was not involved in any accident. The first respondent further claimed the claimed compensation to be exorbitant and desired the claim to be negatived. 4. The second respondent/insurer also denied the allegations of the claimants and put them to strict proof of all their averments. 5. The 5th claimant, who is the father of the deceased, died during the pendency of the claim before the Tribunal. 6. The Tribunal framed issues about the responsibility of the driver of Allwyn Nissan vehicle for the accident, the relationship of the claimants with the deceased and the entitlement of the claimants for the compensation. 7. During enquiry, the Tribunal examined P.Ws.1 and 2 and marked Exs.A-1 to A-8 and Ex.B-1. 8. The Tribunal rendered the impugned award firstly referring to the eye witness account of P.W.2, who was considered by the Tribunal to be not a chance witness having his office just opposite the bus stop near the place of the accident. The Tribunal believed the claim of P.W.2 that he was standing outside the office at the time of the accident, but opined that when the deceased was going to the office of P.W.2 to collect the chart by crossing the road, he should have been more careful and further opined that when the driver of the Allwyn Nissan vehicle was able to stop the vehicle immediately after the vehicle dashed against the deceased, the vehicle could not have been said to be driven at high speed. The Tribunal, therefore, while further referring to Ex.A-1-First Information Report, concluded that there was contributory negligence on the part of the deceased and the driver of the Allwyn Nissan vehicle for the accident. Though the Police filed the charge sheet against the Allwyn Nissan driver only, the Tribunal thought that if the driving was rash and negligent, the vehicle would have run over the deceased and could not have been stopped. In considering the quantum of compensation, the Tribunal accepted Ex.A-6-Salary Certificate in respect of the income and Ex.A-7-Appointment Order in respect of his age and after deducting 1/3rd towards the personal expenditure of the deceased, the Tribunal applied a multiplier of 15.49 to arrive at the loss of dependency at Rs.2,40,500/-. The Tribunal also granted Rs.15,000/- towards medical expenses covered by Ex.A-8-Medical Bill, Rs.15,000/- towards loss of estate and on the total of Rs.2,70,500/-, the Tribunal considered the claimants to be entitled to 60% of the same. The said sum of Rs.1,77,300/- was awarded with interest at 12% per annum. The Tribunal gave further directions about the apportionment and disbursement of the compensation. 9. The claimants were aggrieved by the finding of the Tribunal about contributory negligence and contended that the negligence was totally on the part of the driver of Allwyn Nissan vehicle and the compensation as claimed should have been granted. 10. Sri I. Gopal Reddy, learned counsel for the appellants and Sri R. Venkat Rao, learned standing counsel for the second respondent/insurer are heard, while the first respondent remained unrepresented before this Court. 11. The owner or insurer of the Allwyn Nissan vehicle did not prefer any cross appeal or cross objections against the award and, therefore, the assessment of the compensation to which the claimants are entitled at a sum of Rs.2,70,500/-, had there been no contributory negligence component, has become final. Though the claimants made a request to award compensation as claimed by them in this appeal, there was no specific ground taken to doubt the correctness of the assessment of compensation by the Tribunal. The income and the age of the deceased were taken into account, as claimed by the claimants, for assessing the loss of dependency and for the age of 32 years, a multiplier of 15.49 was adopted which broadly fits in with the multiplier adopted by SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION & ANOTHER[1] needing no interference at this distance of time due to any discrepancy concerning fraction of a figure. The amounts awarded towards medical expenses were based on the bills proved and though no amount was awarded separately towards the funeral expenses, the amounts of Rs.15,000/- each granted towards loss of estate and loss of consortium amount to Rs.10,000/- more than what was permitted by SARLA VERMA’s case (supra 1). 12. Therefore, the total compensation of Rs.2,70,500/- towards loss of dependency, medical expenses and loss of estate, adding a further sum of Rs.15,000/- towards loss of consortium makes a total of Rs.2,85,500/-, while what was granted was only Rs.1,62,300/- plus Rs.15,000/- in view of the conclusion of the Tribunal about contributory negligence. 13. Ex.A-1-First Information Report, being the earliest version, placed the responsibility for the accident only with the driver of Allwyn Nissan vehicle due to rash and negligent driving and the statutory Investigating Agency on independent investigation filed Ex.A-2-Charge Sheet against the Allwyn Nissan driver opining the driver to have committed an offence punishable for causing rash and negligent homicide under Section 304-A of the Indian Penal Code, 1860. Any element of contributory negligence was not found by the Police also and Ex.A-4-Motor Vehicle Inspector’s Report does not allege any mechanical defect in the vehicle to have possibly contributed to the accident. Therefore, the fact remains that when the deceased was crossing the road, the Allwyn Nissan vehicle dashed against him resulting in fatal injuries. The presumption of the Tribunal that when the driver of the vehicle was able to stop the vehicle immediately after dashing against the deceased and when the vehicle did not run over the deceased, the vehicle cannot be presumed to be running at a high speed has no factual basis and any such conclusion on a surmise or conjecture does not appear probable or reasonable. The very fact that the driver was unable to stop the vehicle without hitting the deceased who was crossing the road does not show any exercise of reasonable care and caution in driving the vehicle and P.W.2, in his evidence, no way suggested the possibility of the vehicle going at a very reasonable speed, but still being involved in the accident due to any rash and careless crossing of the road by the deceased. 14. Sri I. Gopal Reddy, learned counsel for the appellants rightly relied on the decision reported in PADMA YADAMMA VS. GADDAM PRABHAKAR GOUD[2], wherein the learned Judge observed that no law prohibits the use of road by pedestrians and crossing of a road is not an offence. The learned Judge found that even where an individual is found to be walking on the road or crossing it unmindful of the traffic, the responsibility of a driver of a motor vehicle increases to ensure that no untoward incident occurs and a driver of a vehicle cannot seek justification for the accident on the ground that the pedestrian or individual was unmindful of the traffic rules. While the learned Judge recognized that there may be cases where in spite of all precautions taken by the driver, the accident may have occurred on account of the negligence of a pedestrian and the extent of liability in such cases must be pleaded and proved by cogent evidence. Here, there is neither any specific pleading nor any specific proof of the contributory negligence of the deceased and like in the case before his Lordship where the Tribunal drew unjustified inferences not based on any pleadings or evidence, the Tribunal herein also drew its own presumptions on the driver of Allwyn Nissan vehicle being not fully negligent in being able to stop the vehicle after fatally hitting the deceased. The provisions of the Motor Vehicles Act, 1988, are intended to protect the victims and the beneficial legislation cannot be diluted by such fanciful interpretations. Therefore, the compensation, as assessed by the Tribunal, should be awarded in full to the claimants ruling out any contributory negligence on the part of the deceased in being fatally injured in the accident. 15. However, the Tribunal granted interest at 12% per annum from the date of the petition till the date of deposit with costs and the period for which interest has to be paid, therefore, will be from the date of the petition in 1993 upto the date of payment which will impose a heavy burden on the insurer, which is also a custodian of public funds. The grant of interest can, therefore, be confined to 6% per annum as done by the Apex Court in SARLA VERMA’s case (supra 1). 16. Accordingly, the claimants 1 to 4 in O.P.No.1111 of 1993, on the file of the Motor Accidents Claims Tribunal-cum- Additional Chief Judge-cum-Principal Special Judge for SPE and ACB Cases, Hyderabad, are awarded a compensation of Rs.2,85,500/- with interest thereon at 6% per annum from the date of the petition till the date of realization with proportionate costs and the first claimant will be entitled to Rs.15,000/- towards loss of consortium and the rest of the compensation can be shared equally between claimants 1 to 4. No further directions need be given about the disbursement of the compensation at this distance of time, more so, as all the three minor children have by now become majors. The award, dated 05.11.1996, in O.P.No.1111 of 1993, is modified, accordingly, and the Civil Miscellaneous Appeal is allowed without costs. ______________________ G. BHAVANI PRASAD, J Date: 11th October, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1695 of 2000 Date: 11th October, 2011 KL [1] 2009 ACJ 1298 [2] 2007 (3) ALD 342