* THE HON’BLE MR. JUSTICE R. KANTHA RAO + C.M.A.NO.3171 OF 2000 AND CROSS OBJECTIONS (SR) No. 94124 of 2000 % Date:25.03.2010 C.M.A.NO.3171 OF 2000 Between: # APSRTC …Appellant And/- A.V.Swarupa Rani and another …Respondents ! Counsel for the Appellant: Mr. K.S.Murthy ^ Counsel for the Respondents: Mr.Y.V.Ravi Prasad CROSS OBJECTIONS (SR) No. 94124 of 2000 # A.V.Swarupa Rani and another …Appellants And/- APSRTC …Respondent ! Counsel for the Appellant: Mr.Y.V.Ravi Prasad ^ Counsel for the Respondents: Mr.K.S.Murthy <GIST: > HEAD NOTE: ? Cases referred [1] AIR 1979 SC 621 2 1997 ACJ 593 HON’BLE SRI JUSTICE R. KANTHA RAO C.M.A.NO.3171 OF 2000 AND CROSS OBJECTIONS (SR) No. 94124 of 2000 DATED: 25.03.2010 C.M.A.NO.3171 OF 2000 BETWEEN: APSRTC .. Appellant And AV.Swarupa Rani and another .. Respondents X OBJECTIONS (SR) No. 94124 of 2000 BETWEEN: A.V.Swarupa Rani and another .. Cross Objector and A.P.S.R.T.C. .. Respondents HON’BLE SRI JUSTICE R. KANTHA RAO C.M.A.NO.3171 OF 2000 AND CROSS OBJECTIONS (SR) No. 94124 of 2000 COMMON JUDGMENT: C.M.A.No.3171 of 2000 is filed by the A.P.S.R.T.C and the cross objections are filed by the widow of the deceased who is one of the claimants against the award dated 03.07.2000 passed by the Motor Accidents Claims Tribunal-cum-I Additional District Judge, West Godavari District, Eluru in O.P.No.530 of 1998. 2. I have heard Sri K.S.Murthy, learned Counsel for the A.P.S.R.T.C and Sri Y.V.Ravi Prasad, learned Counsel for the claimant No.1. 3. The unfortunate accident occurred on 25.09.1997 at 12.00 mid night when an A.P.S.R.T.C bus was on its way to Hyderabad carrying 46 passengers. According to the claimants, the first respondent-driver of the APSRTC bus, was driving the bus at the relevant time in a rash and negligent manner and while negotiating the river bridge at Rangapur on National Highway No.7, dashed the left side railing of the bridge and the bus fell in to the waters of river Krishna, as a result of which, 43 passengers died and only three persons survived. The first respondent, who was driver of the bus is one among the three survived. The deceased Areti Venkata Subba Rao aged 52 years working as Deputy Executive Engineer, Irrigation Department, Cheglamarri Sub Division, Mydukur, Kurnool District died in the unfortunate accident. 4. One Kappeta China Nagappa, who is one among the three persons survived, gave a report in the Pebbair Police Station of Mahaboobnaar District at about 3.00 AM on 26.09.1997, basing on which, a case in Crime No.71 of 1997 for the offence punishable under Section 304-A and 337 IPC was registered. As per the version of the informant, who lodged the report, the accident was as a result of rash and negligent driving of the driver of the APSRTC bus. 5. All the above mentioned facts are not in dispute. However, it is the contention of the learned counsel for the claimants that the accident was caused due to rash and negligent driving of the driver of the RTC bus, whereas the contention of the learned counsel for the corporation is that the accident was due to mechanical defect which was suddenly developed in the bus at the time of accident. As against the claim of Rs.20,00,000/-, the learned Tribunal granted an amount of Rs.7,06,460/-, but deducted an amount of Rs.1,00,000/- from the compensation amount which was said to be paid by APSRTC to the cross objector-claimant No.1 and that the learned Tribunal held that the claimants are entitled for an amount of Rs.6,06,460/-. Learned counsel for the appellant corporation argued that filing of O.P.No.709 of 1998 before the Motor Vehicles Accident Claims Tribunal-cum-Chief Judge, City Civil Court Hydrabad claiming an amount of Rs.8,10,000/- by the claimants, withdrawing the same subsequently and filing O.P.no.530 of 1998 before the Motor Accidents Claims Tribunal-cum-I Additional District Judge, West Godavari, Eluru claiming an amount of Rs.20,00,000/- renders the subsequent O.P. against which the present appeal and the cross objections arose, not maintainable. 6. Basing on the contentions urged by the learned counsel for the cross objectors as well as the A.P.S.R.T.C., the following points arise for consideration by this Court: 1. Whether the accident was caused due to rash and negligent driving of the RTC bus by its driver- respondent No.1? 2. Whether Exs.B.1 to B.3 (Ex.B.1 is the willingness letter given by PW.1, Ex.B.2 is the affidavit given by PW.1 and Ex.B.3 is the receipt cum undertaking given by PW.1) are genuine, if so receiving an amount of Rs.1,00,000/- from APSRTC by the cross objector-first claimant on behalf of the claimants debars them from filing a claim petition under Section 166 of the Motor Vehicles Act? 3. Whether the said amount can be deducted from the total compensation payable to the claimants? 4. Whether the compensation granted is just and reasonable? POINT No.1 7. Admittedly the accident took place on 25.09.1997 at 12.00 mid night while RTC bus was crossing the river bridge and after dashing the railing of the bridge on the left side. There is no dispute about the fact that the bus suddenly fell in to the river and 43 passengers out of 46 persons died and three persons escaped including the driver. The factum of occurrence of accident is not disputed by the appellant corporation. Ex.A.3-attested photostat copy of FIR dated 26.09.1997 and Ex.A.4- attested photostat copy of charge sheet, prima facie disclose that the accident was due to rash and negligent driving of the driver of the RTC bus. One of the passengers lodged the F.I.R at the earliest point of time soon after the accident, and therefore, the authenticity of FIR cannot be disputed. Moreover, the police after thorough investigation filed charge sheet against respondent No.1-driver of the RTC bus indicting him for the offences punishable under Sections 304-A and 337 IPC. When once the factum of accident is proved, the burden is heavy on the appellant corporation to prove that it is not on account of rash and negligent driving of the respondent No.1, who was driving the RTC bus. Further the appellant corporation took a specific plea that the mechanical defect which was suddenly developed in the bus caused the accident and not the act of rash and negligent driving of the driver. The said fact has to be proved by the appellant corporation by adducing convincing evidence. The proper person to speak about the circumstances which led to the accident is respondent No.1, the driver of the bus, but for the reasons best known, the appellant corporation, did not choose to examine the respondent No.1 on it’s behalf which is fatal to its case and an adverse inference can be drawn against it’s case to the effect that had the respondent No.1 been examined, he would not have withstood the cross examination charging him with rash and negligent driving of the bus at relevant time. Therefore, considering the manner in which the accident took place and the failure on the part of the appellant corporation to discharge its burden, the learned Tribunal rightly held that only due to rash and negligent driving of the RTC bus by respondent No.1, the accident occurred. This point is thus answered in favour of the cross objector-claimant No.1 and against the appellant corporation. POINT No.2 8. The cross objector Sri A.V.Swarupa Rani, who is the widow of the deceased examined as PW.1 admitted her signature and her daughter’s signature. But her contention is that the signatures were obtained on blank papers on the pretext of paying ex-gratia of Rs.1,00,000/-, but they have not agreed for full and final settlement of Rs.1,00,000/- and they never undertook not to file any claim for compensation as contended by APSRTC. Exs.B.1 to B.3 and Ex.A.5 were attested by the Deputy Executive Engineer and the Assistant Engineer, Irrigation Department. Even though, it is for the cross objector-PW.1, to explain the circumstances under which they subscribed their signatures, the fact that the appellant corporation also failed to examine the Executive Engineer and the Assistant Engineer, who attested the said documents to prove that the amount was paid as full and final settlement of compensation, but not as ex-gratia cannot be ignored. 9. It is the contention of the learned standing counsel for the APSRTC that in view of the fact that the cross objector received an amount of Rs.1,00,000/- on behalf of the legal heirs of the deceased Subba Rao, she is estopped from filing a claim petition under Section 166 of the Motor Vehicles Act since the doctrine of promissory estoppel comes in the way. The learned counsel relied on a decision in M/S MOTILAL PADAMPAT SUGAR MILLS CO. LTD. V THE STATE OF UTTAR PRADESH ANDOTHERS[1] which is not applicable to the present case. The reason being the cross objector while receiving the amount presumably not fully conscious of their right to claim compensation under law and the extent of the liability of the appellant corporation. 10. As rightly contended by the learned counsel appearing for the cross objector, basing on the judgment of the High Court of Madhya Pradesh in BENI RAM SAHU v BEER SINGH[2] which is to the effect that “the ex-gratia payments made to the dependants of the deceased are not subject to adjustment in the interim compensation payable under Section 140 of the Act”. The cross objector and the other claimants have the statutory right to claim compensation and the right cannot be jeopardized by the alleged final settlement made by the appellant corporation. Despite the fact that the cross objector received an amount of Rs.1,00,000/-, even assuming for a moment towards full and final settlement of the claim, the claim petition for reasonable compensation by the claimants, who are the legal representatives of the deceased, is not barred. This point is therefore answered in favour of the cross objector. POINT No.3: 11. In view of the rival contentions regarding the payment of Rs.1,00,000/- compensation and the alleged undertaking given by the cross objector, it is obligatory on the part of the appellant corporation to prove that the amount was in fact paid towards full and final settlement and not as ex-gratia. Responsible officials of the irrigation department are the attesting witnesses to Ex.B1 to B.3 documents. The failure on the part of the appellant corporation to examine them to prove that the amount was in fact paid towards full and final settlement and not as ex-gratia is fatal to it’s contention. Further the conduct of the officials of the RTC in obtaining the signatures of the legal heirs of the deceased on Ex.B.1 to B.3 is highly reprehensible and they ought not to have resorted such a course affecting the rights of the cross objector and her daughters in claiming compensation for which they are legally entitled as per the provisions of the Motor Vehicles Act which is a beneficent statute. Under these circumstances, this Court holds that the said amount is deemed to have been paid towards ex-gratia and it is not towards any compensation payable to the cross objector and other claimants under the Motor Vehicles Act. The amount of Rs.1,00,000/- so paid shall not be deducted from the total compensation awarded to them in their claim petition filed under Motor Vehicles Act. POINT No.4 12. In view of the rival contentions regarding the reasonableness and adequacy of the compensation, it is obligatory on the part of this Court to assess the compensation afresh for which the cross objectors are entitled according to law. As per Ex.A.5-salary certificate of the deceased A.V.Subba Rao, he was working as Deputy Executive Engineer at the time of accident, his gross salary was Rs.7,924/- and his net salary was Rs.7,164/-. The Tribunal considered the net salary of the deceased for the purpose of compensation. However, since the deceased was aged 52 years at the time of his death and still had six more years of service, the learned Tribunal should have taken into consideration his future prospects in the job and it was most likely that the deceased would have been promoted to a higher post and would have earned more salary. In view of the nature of job which the deceased was holding in Government service, the future prospects are required to be considered. As it is a rare and exceptional case involving special circumstances where the general rule if the age of the deceased is more than 50 years there should be no addition, can be departed as laid down in SARALA VERMA (Smt) AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER[3]. Considering the future prospects of the deceased for the purpose of computing the compensation his salary can be fixed at Rs.9,000/-. From this 1/3rd i.e. Rs.3,000/- per month has to be deducted towards his personal and living expenses and the contribution to the family comes to Rs.6,000/- per month. The amount of contribution to the family by the deceased per annum comes to Rs.6,000/- x 12 = 72,000/-. To arrive at the loss of dependency the said amount has to be capitalized with ‘11’ the multiplier relevant to the age of the deceased. Calculated on that basis, the loss of dependency comes to Rs.72,000/- x 11 = Rs.7,92,000/-. The claimants are also entitled for a sum of Rs.5,000/- towards loss of estate and a further sum of Rs.5,000/- towards funeral expenses. The cross objector-claimant No.1 (PW.1, who is the widow of the deceased) is entitled for a sum of Rs.10,000/- towards loss of consortium. In all the cross objector and the other claimants are entitled for compensation of Rs.8,12,000/-. Thus, the enhanced compensation comes to Rs.Rs.2,55,040/- (Rs.8.12,000/- minus Rs. 6,06,460/-). The interest granted by the Tribunal below at the rate of 6% per annum being low, it is enhanced from 6% per annum to 7.5% per annum from the date of petition till the date of realization. 13. For the foregoing reasons, the C.M.A. is dismissed and the Cross objections are partly allowed as indicated above. There shall be no order as to costs. _______________ R.KANTHA RAO,J Dated: 25.03.2010 Note: L.R. copy to be marked b/o Kvrm HON’BLE SRI JUSTICE R. KANTHA RAO C.M.A.NO.3171 OF 2000 And Cross Objection (SR) No. 94124 of 2000 Dated: 25.03.2010 [1] AIR 1979 SC 621 [2] 1997 ACJ 593 [3] (2009)6 SCC 121