* HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR + C.M.A.No. 2874 of 1998 and Cross Objections (sr) No.83612 of 1999 % 15-09-2009 C.M.A. No. 2874 of 1998 # Managing Director, Hyderabad Metropolitan Water Supply and Sewerage Board, Hyderabad. ..… Appellant Vs. $ Smt. A. Saraswathi and others. …Respondents !Counsel for the Appellant : Sri N. Jaya Surya ^Counsel for Respondent Nos.1 to 3: Sri VLNGK Murty Counsel for Respondent No.4: -- Counsel for Respondent No.5: Sri E. Venugopal Reddy Counsel for Respondent No.6: Sri Kota Subba Rao <Gist : >Head Note: ?Cases Referred: 1. (1998) 8 SCC 493 2. (1980) 1 SCC 30 3. AIR 1966 SC 1697 4. (1996) 5 SCC 21 5. AIR 1987 SC 1184 6. 1998 (6) ALT 473 7. 2002 ACJ 1441 8. 1997 ACJ 1081 9. 2009 (3) SUPREME 487 HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A.No.2874 of 1998 and Cross Objections (sr) No.83612 of 1999 COMMON JUDGMENT: (Per Hon’ble Sri Justice B. Chandra Kumar) Since the Appeal and the Cross-objections arise out of the same accident and same order, they are being disposed of by this common Judgment. 2. The appeal by the first respondent in the claim petition is directed against the order, dated 18-02-1998 in O.P.No.464 of 1994 on the file of the Motor Accidents Claims Tribunal-cum-Principal Special Judge for SPE and ACB Cases, Hyderabad, awarding compensation of Rs.13,45,000/- with proportionate costs and 12% interest from the date of petition to the date of payment to the claimants. 3. The cross objections have been filed by the claimants seeking enhancement of the compensation of Rs.98,51,000/-. 4. The parties will be referred to as they are arrayed before the Tribunal for the sake of convenience. 5. The brief facts necessary for the disposal of the Appeal and Cross-objections are as follows: The first claimant is the wife and claimants 2 and 3 are the daughters of late A.B.V. Rao (hereinafter referred to as ‘deceased’), who died in a motor accident. The deceased was working in Nigeria and residing there with the claimants. The deceased and the first and third claimants came to Hyderabad during holidays. They arrived at Hyderabad Airport via Bombay on 20-09-1992. One Mr. Vittal Rao, friend of the deceased, arranged Maruti car bearing No.AP 9/B 6822 to enable the deceased and his family members to go to Hotel Golconda at Masab Tank and One R. Suresh was driving the car. They left the airport at about 2-50 PM in the said car and were proceeding via Banjara Hills. When they were near Hotel Banjara at about 3- 15 PM, the offending jeep bearing No.AP 9C/7655 belonging to the first respondent, being driven by its Driver Rajeswar, came from opposite direction. It is alleged that the driver of the jeep was inebriated condition and he had driven the jeep in a rash and negligent manner and came to wrong side i.e., towards his extreme right side. Seeing this, the car driver tried to move the car towards further left, but in the meanwhile, the jeep dashed on the right side front portion of the car, due to the impact the deceased and other inmates of the car and driver of the car sustained injuries. The injured were shifted to Osmania General Hospital. However, the deceased succumbed to the injuries while undergoing treatment in the hospital. Alleging that the accident occurred due to rash and negligent driving of the driver of the jeep and the first respondent, being the owner of the vehicle, is vicariously liable to pay compensation to the claimants, the claimants filed the claim petition claiming compensation of Rs.1,07,96,000/- under Section 167 of the Motor Vehicles Act, 1989. 6. The further case of the claimants is that the deceased was working with Coutinho Caro & Co, Hamburg as Executive Director with their associated company Countinho, Caro & co (Nigeria) Ltd Lagos – Apapa, Nigeria under an agreement, dated 06-03-1990 on a monthly salary of DM 9000 equivalent to Rs.1,71,000/-. Apart from the said salary, he was also getting local paid salary of 3,000 gross naira equivalent to Rs.4,500/- per month as specified in a separate agreement, dated 07-03-1990 entered into with their associate company. The deceased had also entered into service contract of three years from 01-05-1990 with Coutinho, Caro & Co., Hamburg to work as Executive Director. As per the terms of agreement, the deceased was getting 13 months salary per year. Thus the total income of the deceased per year was equivalent to Rs.22,81,500/-. The further case of the claimants is that the deceased was aged about 61 years as on the date of accident, and he had still eight months service by the date of his death under the agreement dated 06-03-1990 and that he would have drawn a total salary of Rs.15,75,000/- for 10 months and he would have spent at least Rs.11,81,000/- on his family. The further case of the claimants is that the deceased was a professional man having very rich experience in cost accountancy and was having high educational qualifications in accountancy and would have continued with the company in which he was working or he would have got better offer in other parts of the world. The deceased would have worked for another 9 years had he not met with the accident and earned Rs.10,00,000/- per year. So, the claimants claimed Rs.90,00,000/- for the loss of earnings besides Rs.11,81,000/- for the remaining period of his contract with the company referred above. The further case of the claimants is that they suffered mental agony, and that the third claimants was a student on the date of filing of the claim petition and that the first and third claimants were solely depending on the income of the deceased. Their further case is that the first claimant and the third claimants are forced to stay in USA along with the second claimant. They claimed Rs.10,00,000/- towards compensation for mental agony and Rs.5,000/- towards funeral and other expenses. The first claimant claimed Rs.10,000/- for the injuries sustained by her in the same accident. 7. The first respondent filed counter and denied the material averments made by the claimants. The averments of the claimants with regard to the age, occupation and income of the deceased have been denied. It is also denied that the driver of the jeep was in inebriated condition and that the accident occurred due to his rash and negligent driving. Their further case is that the accident occurred due to rash and negligent driving of the driver of the car. Their further case is that the accident occurred on Sunday and that the jeep was unauthorisedly used by its driver and therefore, no vicarious liability arises. It is also averred that after departmental enquiry the driver was removed from service for unauthorisedly using the official vehicle. It is also averred that the claimants cannot claim compensation both in India and Nigeria and that they have not specified to what extent they are entitled to receive compensation in Nizeria on account of the death of the deceased. It is also averred that the claimants have not furnished the other particulars regarding the income and age of the deceased. 8. The second respondent is the driver of the jeep. The third respondent is the United India Insurance Company Ltd. However, as per the order in I.A.No.627 of 1995, dated 06-06-1995, the name of the third respondent was deleted and the fourth respondent India Assurance Co. Ltd., was added. The second and third respondents remained ex parte. 9. The fourth respondent filed counter and contended that though the jeep was insured with the Insurance company, the policy was in force from 09-09-1991 to 08-09-1992 and that the respondent issued a cheque bearing No.400869, dated 25-09-1992 towards premium amount and accordingly, the fourth respondent issued policy w.e.f. 25-09-1992 to 24- 09-1992 and therefore, on the date of accident i.e., on 20-09-1992, the vehicle was not insured with the fourth respondent insurance company and therefore, the fourth respondent is not liable to pay compensation. 10. The claimants, in order to prove their case, examined the first claimant as PW-1 and one Laxmi Desiraju as PW-2 and marked Exs.A-1 to A-11. On behalf of the first respondent, RW-1 was examined and on behalf of the fourth respondent, RW-2 was examined. Exs.B-1 to B-4 were marked on behalf of the first respondent and Exs.B-5 and B-6 were marked on behalf of the fourth respondent. 11. The Tribunal, on appreciation of oral and documentary evidence, came to a conclusion that the accident occurred due to rash and negligent driving of the driver of the jeep. It was further held that the jeep was not insured with the fourth respondent insurance company. Therefore, the fourth respondent is not liable to pay compensation. It was further held that the first respondent, being the master, is vicariously liable for the acts of its driver and therefore, first respondent is liable to pay compensation to the claimants. The Tribunal also did not accept the version of the first respondent that the jeep driver had used it for his private work and that it was not used for official purpose. 12. As far as the income of the deceased is concerned, the Tribunal assessed the income of the deceased for the remaining period of service at Rs.19,86,000/- and awarded 1/3rd of the same towards loss of dependency. The Tribunal also calculated the future income of the deceased at Rs.20,94,000/- per annum and awarded 1/3rd of the same at Rs.8,00,000/- . The Tribunal also awarded Rs.30,000/- towards compensation for mental agony and sufferance and Rs.5,000/- towards funeral expenses and Rs.10,000/- to the first claimant for the injuries sustained by her. Thus in all the Tribunal awarded Rs.13,45,000/- with 12% per annum interest from the date of petition till the date of payment. 13. The learned counsel for the Appellants submitted that the claimants have to prove that the accident occurred due to rash and negligent driving of the driver of the jeep and that the negligence is the foundation to claim the compensation. It is further submitted that there is no proof of rash and negligent driving by the driver of the jeep and that the maxim res ipsa loquitur is not applicable and in the absence of proof of rash and negligent driving, the claimants cannot claim compensation. He has relied on STATE OF KARNATAKA v. SATISH [1], and also on SYED AKBAR v. STATE OF KARNATAKA [2] in support of his contention that the maxim res ipsa loquitur is not applicable to the facts of this case. 14. His second submission is that the jeep was not used for official purpose and therefore the question of first respondent becoming vicariously liable does not arise. It is argued that the accident occurred on Sunday and that the jeep was kept in the office premises and that there was no occasion for the driver to take the jeep out of the office premises on that day. It is further submitted that the driver had taken the jeep out of the office for his own use and that he was not on official duty and that the vehicle was not used for the official purpose and therefore, the principle that the master is vicariously liable for the acts of his servant is not applicable. In support of his contention, he relied on SITARAM v. SANTANUPRASAD [3]. 15. He further submitted that nobody is examined with regard to Exs.A-5 and A-6 and that mere averment that the deceased was working in Nigeria or earning huge salary is not sufficient to prove the income of the deceased. It is also his submission that no documents have been filed to show that the deceased in fact worked as per agreements in Ex.A5 and A6 and no pay slips or bank account passbooks have been filed to show the actual salary received by the deceased and in the absence of any satisfactory evidence, there is nothing to say that the deceased received salary as per agreements in Exs.A-5 and A-6. 16. The learned counsel for the claimants submitted that PW- 1 is an injured witness and that her evidence proves that the accident occurred due to rash and negligent driving of the driver of the jeep. It is his further submission that the RW-1 admitted that the vehicle was being used for official purpose on Sundays and other holidays and that two log books were being maintained and in the absence of any evidence to show that the vehicle was used for the personal pursuit of the driver, the finding of the Tribunal cannot be disturbed. 17. In support of his contention that the first respondent is liable to pay compensation on the principle of vicarious liability, the learned counsel has relied on SOHAN LAL PASSI v. P. SESH REDDY [4], SKANDIA INS. CO. LTD. v. KOKILABEN CHANDRAVADAN [5] and N. SURYANARAYANA v. J. CH. VENKATARAMANA [6]. 18. He further submitted that the deceased was hale and healthy and would have worked for another 9 to 10 years and that the Tribunal was not justified in deducting pension and that the pension and other amounts received by the claimants cannot be deducted from the compensation and in support of his contention, he has relied on UNITED INDIA INSURANCE CO. LTD. v. PATRICIA JEAN MAHAJAN [7]. 19. The points that arise for consideration are: 1. Whether the accident occurred due to rash and negligent driving of the driver of the jeep? 2. Whether the first respondent, being the master of the driver of the jeep, is vicariously liable to pay compensation to the claimants? 3. What is the just and reasonable compensation in the facts and circumstances of the case? POINT NO.1: 20. The specific case of the claimant is that on 20-09-1992 PW- 1, deceased and third claimant were travelling in the Maruti car from Hyderabad Airport to Masab Tank and that when their car reached Banjara Hills, Road No.1, the jeep belonging to the first respondent driven by the second respondent came in a rash and negligent manner at high speed to its extreme right side and dashed against their Maruti car and that the accident occurred due to the negligence of the driver of the jeep. The first claimant, wife of the deceased, has been examined as PW-1. According to her they came from Nigeria for holidays and arrived at Hyderabad Airport and were proceeding in the car provided by the friend of the deceased. Her specific case is that when their car reached Road No.1 of Banjara Hills, the jeep driven by the second respondent in a rash and negligent manner at high speed came towards its right side and dashed against their Maruti car. The deceased was sitting in the front seat of the car and he sustained severe injuries and after reaching the hospital, the deceased breathed last. PW-1 also sustained a minor head injuries and fracture of ribs. 21. PW-1 is an injured witness. Her presence at the time of accident in the car cannot be disputed. Her evidence specifically shows that the jeep came towards its extreme right side and dashed against the Maruti car. Except the oral evidence of PW-1, there is no other oral evidence in this case to speak about the accident. According to RW-1, the driver of the jeep was unauthorisedly driving the jeep and that he was in inebriated condition. But as seen from the contents of the counter filed by R-1 and Ex.A-4 reply notice sent by R-1, the first respondent denied the allegation of the claimants that their jeep driver A. Rajeswar was in inebriated condition. Ex.A-8 is the C.C. of FIR. The contents of Ex.A-8 go to show that the driver of the Maruti car R. Suresh gave statement to the police, basing on which the police, Banjara Hills, registered a case in Crime No.322 of 2002 against the driver of the jeep. Ex.A-9 is the C.C. of charge sheet which shows that the police, after completing investigation, laid charge sheet against the driver of the jeep. Ex.A-10 is the sketch plan. Ex.A-11 is the postmortem report of the deceased. 22. The learned counsel for the appellants contended that the claimants have to prove the rash and negligent driving of the driver of the jeep. It is further submitted that mere saying that the driver had driven the jeep at high speed is not sufficient and that the words ‘high speed’ is a relative term. It is also his submission that there cannot be any presumption with regard to rash and negligent driving of the driver and that the maxim res ipsa loquitur is not applicable to fasten the liability on the driver of the jeep. He has relied on SATISH’s case (1 supra), wherein it was held that in the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “res ipsa loquitur”. 23. The facts of the above case are entirely different. In that case, the respondent was driving a truck which turned turtle resulting the death of 15 persons and injuries to 18 persons. The courts did not record any finding as to the negligent or rash driving by the respondent but relied on the doctrine of res ipsa loquitur. The respondent was convicted for the offence under Sections 337 and 338 and 304-A of IPC on the ground that he was driving the truck at high speed. However, the High Court acquitted the respondent on all the charges. When the matter was carried to the Supreme Court, it was held that: “Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “res ipsa loquitur”.” As seen from the above facts it is clear that the above case is a criminal case and facts are distinguishable hence not applicable to this case. 24. In SYED AKBAR’s case (2 supra), the facts of which reveal that at the material time the accused was driving the bus slowly as a narrow bridge was 30 feet ahead and when the child suddenly appeared on the road, he immediately swerved the vehicle to the extreme right side of the road in order to save the collision. It was also clear that if he had moved the bus further to the right, it would have fallen in the ditch endangering the lives of the passengers. All the eyewitnesses turned hostile. The trial Court and appellate Court applied maxim res ipsa loquitur and convicted the accused. The Hon’ble Supreme Court observed that maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. The above cited case also arises out of a criminal case and not applicable to the facts of this case. 25. In the case on hand, we have the evidence of PW-1 and the relevant documents filed on behalf of the claimants i.e., C.C. of FIR, C.C. of charge sheet and C.C. of sketch plan. Admittedly, the driver of the jeep was not examined on behalf of the respondents and no other witnesses were examined. The maxim res ipsa loquitur applies to a case where the circumstances themselves prove the rash and negligence driving of the driver of the vehicle involved in the accident. For example, in a case where the vehicle left the road and hit a road side tree or fallen in a right side ditch and the circumstances themselves undoubtedly show that the accident occurred due to the rash and negligent driving of the driver of the vehicle, then the maxim res ipsa loquitur applies. There are no such circumstances in the case on hand. The sketch plan under Ex.A-10 itself shows that the jeep belonging to the first respondent driven by the second respondent came towards right side and dashed against the Maruti car. While the Mariti car was proceeding along with the left side of the road, the driver of the Maruti car moved the car towards his further left. Therefore, the evidence is clear and it proves the negligence of the jeep driver. There was no occasion to invoke the maxim res ipsa loquitur in this case. Therefore, the above referred decisions cited by the learned counsel for the appellants do not apply to the facts of this case. POINT NO.2: 26. The specific case of the first respondent is that the accident occurred on Sunday and RW-1 did not instruct the driver of the jeep to bring the vehicle and that the vehicle was not plying on official duty and that it’s driver was driving the same without any instructions from RW-1. As far as this point is concerned, there is oral evidence of RW-1 and documentary evidence of Exs.A-8 to A-10 and B-1 to B-4. Admittedly the vehicle was under the control of RW-1. According to RW-1 Ex.B-1 is the log book of the jeep and the last entries were made in Ex.B-1 on 18-09-1992. According to him he did not use the vehicle on 19-09-1992 and on 20-09-1992. The vehicle was kept in their office at Khairatabad. RW-1 was residing at Masab Tank. He was working with Tata Constants on behalf of the Water Works Department. The Tata Consultancy office was situated at Begumpet. RW-1 admitted that the entries in Ex.B-1 show that the vehicle was used on holidays including on Sundays also. He further deposed that the entries in the log book will be made at the end of the day. According to RW-1, there will be watchman at their office. He says that the key of the vehicle was with the driver. He says that he did not know whether the rules provide that the key should be with the Controlling Officer. He further admitted that no entry will be made in the log book whenever the vehicle was sent for servicing. He further admitted that when the vehicle was not found in the office, he did not give any police complaint. Ex.B-1 is the log book. However, RW-1 himself admitted that he does not know whether the rules provide for maintaining two types of log books one for petrol bill and another for mileage. He has admitted that Ex.B-1 is the log book for the petrol account. 27. The Tribunal observed that several columns in the log book were kept blank and that Ex.B-1 was not properly maintained. Since the entries in the log book will be made only after using the vehicle, it appears that Ex.B-1 is not helpful. Suffice to say that even on holidays and Sundays, the vehicle was used. Ex.B-3 is the report given by RW-1. Ex.B-4 is the order removing the driver of the jeep from service. The allegation against the driver is that he has unauthorisedly used the vehicle and that he was in drunken state. As seen from Ex.B-3, there is no allegation of RW-1 that the driver was in a drunken state at the time of accident. As seen from the contents of the counter filed by the first respondent, the first respondent had denied the averments of the claimants that the driver of the jeep was in a drunken state. The first respondent cannot take different pleas on different occasions to suit its convenience. The first respondent had taken a stand in the counter that the driver was not in drunken state. However in Ex.B-4 the first respondent has taken a different stand. 28. In SYED AKBAR’s case (2 supra), the Supreme Court held that: “But in India the rules of evidence are governed by the Indian Evidence Act, 1872 under which the general rule is that the