THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED CIVIL MISCELLANEOUS APPEAL No.2402 OF 2003 And CROSS OBJECTIONS (SR)77677 OF 2003 ORAL JUDGMENT: This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (for brevity “the Act”) by the Andhra Pradesh State Road Transport Corporation (herein after referred to as ” the Corporation”) assailing the order and decree dated 20-01-2003 in O.P.No.829 of 2001 by the learned Chairman, Motor Accidents Claims Tribunal-cum-Chief Judge, City Civil Court, Hyderabad filed by the respondents 1 to 5 herein (legal representatives of deceased Mergoju Narayana) under section 166 of the Act claiming compensation of Rs.10,00,000/- on account of death of deceased who met in a motor vehicle accident. 2. The facts, in brief, are as follows: The first respondent is the wife, respondent 2 is the mother of the deceased-Narayana. According to the claim of the respondents in the O.P that on 04-02-2001 at about 1.00 P.M while the deceased was proceeding on his Scooter bearing No.AP-36-8761 slowly on extreme left side of the road, near Cherial Crossroad on the road running from Hyderabad to Karimnagar, the A.P.S.R.T.C. bus bearing No.AP-10-Z 7805 of Dubbaka Depot driven by its driver with high speed rashly and negligently from Siddipet Side towards Komarzvlli, came on its wrong side and dashed against the scooter of the deceased, due to which the deceased fell down from the scooter and received injuries on his head, right hand, right leg and also other fatal injuries, as a result of which, he succumbed to injuries. Due to the accident, the scooter in which the deceased was traveling was completely damaged. Later, police registered a case in Cr.No.8 of 2001 under Section 304-A of IPC. 3. The respondents/appellants resisted the claim petition by filing a counter-affidavit denying all the allegations. 4. The Tribunal on the basis of the pleadings framed the following issues for trial. 1. Whether the accident in question has taken place on account of the rash and negligent driving on the part of the driver of A.P.S.R.T.C Bus bearing No.AP-10-Z- 7805 belonging to the respondents Corporation? 2. Whether the petitioners are entitled to the compensation and if so, to what amount from the respondent-Corporation? 3. To what relief? 5.Heard both sides. 6. To substantiate the contention of the claimants, PWs.1 to 5 were examined and Exs.A-1 to A-12 were marked. On behalf of the appellants/respondents neither oral nor documentary evidence is adduced. 7. The learned counsel for the appellants contended that, in as much as the deceased was also responsible for the accident, the Tribunal ought to have applied the theory of contributory negligence. 8. Per contra, the learned counsel appearing for the respondents/claimants contended that the Tribunal was justified in applying the multiplier and the theory of contributory negligence has no application in the case on hand in as much as it is evident from the record that the accident occurred purely because of the rash and negligent driving of the driver of the bus belonging to the Corporation. 9. Now, the points for consideration are: (1) Whether the accident occurred due to rash and negligent driving of the driver of the Corporation bus alone or whether the theory of contributory negligence has to be applied? (2) Whether the compensation awarded by the Tribunal is justified? Point No.1: 10.There is no dispute as to the fact that on 04-02-2001 at about 1.00 P.M near Cherial Crossroad on Hydeabad to Karimnagar Road, the accident took place due to collision between the Scooter being driven by the deceased and the Corporation Bus. Due to the accident, the deceased who was driving the Scooter was hurled to about 20 feet distance into a canal under the bridge and died on the spot having received fractures to his scull, right hand and right leg and the scooter in which the deceased was traveling was also completely damaged. These facts can be gathered not only from the oral evidence adduced on record but also through Exs.A-6 (certified copy of the report of the observation of the incident conducted by the Investigation Officer), Ex.A-1 (FIR) and Exs.A-7 (bunch of photographs pertaining to scene of offence). So, the finding of the Tribunal that the accident occurred due to rash and negligent driving of the driver of the Corporation cannot be found fault with and the theory of contributory negligence has no application in the instant case. The point is answered accordingly. POINT NO.2: 11.The Tribunal while taking into consideration of Ex.A-10 salary certificate showing the salary of deceased as Rs.13,062/- and further taking into consideration of average monthly salary of the deceased during the four years subsequent to his death, arrived at the monthly income of the deceased as Rs.15,000/- and after deducting 1/3rd of the salary towards personal expenses, it would come to Rs.10,000/- per month and following the judgment of the Supreme Court in Bhagwan Das Vs. Md.Ariff (ACJ 1987 page 1052), granted a compensation of Rs.4.80 lakhs besides Rs.10,000/- towards damage to the Scooter; Rs.5,000/- towards transport expenses, Rs.10,000/- towards cremation and obsequies expenses, Rs.2,000/- towards damages to clothing, Rs.15,000/- towards pain and suffering; Rs.15,000/- towards loss of estate and another amount of Rs.15,000/- towards loss of consortium and thus totaling to 6,32,900/- with interest @ 9% per annum from the date of filing of the petition till the date of deposit of the said amount into Court. 12. But as per the judgment of the Apex Court in SARLA VERMA VS. DELHI TRANSPORT CORPORATION ([1]) the appropriate multiplier which can be applied to the deceased is “11”. But the Tribunal has wrongly applied the multiplier as enunciated in Bhaghawan Das Case (supra). Therefore, the loss of deceased’s future earnings would come to Rs.1,20,000/- x 11 =13,20,000/-. 13. So, the total amount of compensation payable to the claimants would come to Rs.13,20,000/- + Rs.10,000/- towards damage to the Scooter; Rs.5,000/- towards transport expenses, Rs.10,000/- towards cremation and obsequies expenses, Rs.2,000/- towards damages to clothing, Rs.15,000/- towards pain and suffering; Rs.15,000/- towards loss of estate and another amount of Rs.15,000/- towards loss of consortium = 13,92,000/-. 14. At this juncture, the learned counsel for the Insurance Company contended that since the claim is restricted to Rs.10 lakhs the compensation may be restricted to Rs.10 lakhs. He also contended that the interest awarded by the Tribunal is highly excessive. In Nagappa Vs. Gurudayal Singh and others([2]) the Apex Court on an evaluation of the material on record, held that under the provisions of the Motor Vehicles Act,1988 there is no restriction that compensation could be awarded only up to the amount claimed by the claimant and that in an appropriate case where from the evidence brought on record if Tribunal/Court considers that claimant is entitled to get more compensation than claimed, it may pass such Award, but the only embargo is that it should be “Just” compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. The learned counsel for the respondents/claimants submit that he is ready and willing to pay the deficit court fee on the enhanced compensation. However, the interest is reduced from 9% to 6% per annum. 15. Therefore, the Appeal is allowed in part and the Cross Objections therein is allowed. The award of the Tribunal is modified and an award is passed for Rs.13,92,000/- with proportionate costs before the Tribunal payable by the appellants/APSRTC with interest @6% per annum from the date of petition till the date of realization. The claimants are permitted to deposit the deficit court fee in the Tribunal. No order as to costs. ___________________ GHULAM MOHAMMED, J 5TH AUGUST, 2010 TSNR [1] AIR 2009 SUPREME COURT 3104 [2] AIR 2003 SUPREME COURT 674