IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIFTEENTH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH C.M.A.No.2791/2002 & CROSS OBJECTIONS (SR) No.86850/2002 C.M.A.No.2791/2002 Between: Andhra Pradesh State Road Transport Corporation, Rep.by its Managing Diretor, Mushirabad, Hyderabad and another ..... APPELLANTS AND Smt.Bodigam Bhojamma and 3 others .....RESPONDENTS Cross Objections (SR)No.86850/2002 Between: Smt.Bodigam Bhojamma and 3 others ..... CROSS OBJECTORS AND The A.P.State Road Transport Corporation, Rep.by its Managing Director, Musheerabad, Hyderabad and another .....RESPONDENTS The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH C.M.A.No.2791/2002 & CROSS OBJECTIONS (SR) No.86850/2002 COMMON JUDGMENT: The cross-objectors are the claimants and the appellants in the CMA are the respondents in O.P.843/1999 filed by the claimants on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Nizamabad. The said O.P. filed by the claimants claiming compensation of Rs.4 lakh was allowed. The Andhra Pradesh State Road Transport Corporation (hereinafter referred to as “APSRTC”) filed the appeal contending that there was no rash and negligent driving on the part of the driver of APSRTC bus and the Tribunal below ought to have held that the deceased was also guilty of contributory negligence. It is further contended that there is no proof of income of the deceased and the estimated income of Rs.3,000/- per month is not supported by any evidence. It is further stated that the Tribunal below committed grave error in applying the multiplier 18 instead of 17. It is further contended that the award of Rs.15,000/- towards loss of Estate and Rs.15,000/- towards loss of consortium is without any basis and the Tribunal below ought not to have awarded more than Rs.5,000/- under each of those heads. It is also contended that awarding of Rs.2,500/- towards funeral expenses is also unsustainable. On the other hand, the learned counsel appearing for the claimants who filed cross objections submits that in fact the Tribunal below having found that the claimants are entitled to compensation of Rs.4,64,000/- awarded compensation of Rs.4 lakh only on the ground that the claimants themselves have restricted their claim upto Rs.4 lakh alone. The award of interest @9% p.a. on the compensation amount is lesser than the interest the claimants entitled to, as they are entitled to interest @24% p.a. The questions that arise for consideration in this appeal are (1) whether the accident was occurred due to rash and negligent driving of the driver of APSRTC bus; (2) whether compensation awarded by the Tribunal below is excessive; and (3) whether the claimants are entitled to any enhancement of compensation. It is the case of the claimants that on 27.07.1999 at about 5.30 p.m. the deceased namely Bodigam Gangadas was waiting at Degam village bus stand for bus and after some time the bus bearing No.AP9Z-3679 came from Ch.Kondur and stopped at Degam bus stand. Some persons got down from the bus and after that the deceased while boarding the bus, the driver of the said bus suddenly started the bus with rash and negligent manner without seeing the back, without receiving any signal from the Conductor and without closing the door, due to which the deceased fell down from footboard and back wheel of the bus ran over him. Due to which the deceased sustained crush injuries and fracture injuries and immediately he was shifted to the Government Hospital, Armoor and there from he was referred to Government Hospital, Nizamabad. During course of treatment, he succumbed to injuries at 9.25 p.m on the same day i.e. on 27.07.1999. It is the case of the claimants that the deceased was Barber-cum- Agriculturist and earning Rs.10,000/- per month and used to contribute the entire earnings to the claimants. He was hale and healthy and was aged about 28 years by the time of his death. The first claimant is the wife, second claimant is the son aged 9 years and claimants 3 and 4 are daughters aged 5 and 2 years respectively of the deceased. APSRTC filed counter denying the averments made in the claim petition. The first claimant, wife of the deceased was examined as PW 1 and stated that her husband died in a motor accident, and on coming to know the same through one Devidas, she rushed to the Government Hospital, Nizamabad where her husband died on account of injuries. The police registered the criminal case against the driver of APSRTC Bus and the accident took place on account of rash and negligent driving of the driver of APSRTC bus. She stated that her husband was aged 28 years and he was hale and healthy and barber by profession. He was earning Rs.10,000/- per month by doing barber and agriculture. In the cross examination also she stated that her husband used to run the barber shop. But she has no record to show that her husband owned Ac.4.00 of land and used to cultivate the same. It is stated that there were about 8 barber shops in their village at Nandipet and population of Nandipet is about 5000. She did not file any gram panchayat licence to show that her husband was running the barber shop. There was no record to show that he was earning Rs.10,000/- per month. PW 2 one Mr.Devidas who is said to be the eyewitness to the incident stated that he witnessed the accident on the date of accident as he was waiting for the bus at Degam bus stand to go over to Armoor. At that time, the said bus came from Kondur and stopped at Degam stage and the deceased boarded into the bus and he was at footboard. When the deceased was at footboard, the driver of the bus drove the bus without any signal from the conductor, and due to sudden starting of the bus, the deceased fell down and rear wheel of the bus ran over him, resulting in crush injuries and multiple fractures. The deceased was shifted to Government Hospital, Armoor and there from to Government Headquarters Hospital, Nizamabad where he succumbed to injuries. He stated that the accident was occurred due to rash and negligent driving of the driver of the APSRTC bus which resulted in the death of the deceased. The deceased was a barber by profession and he was having his own lands of an extent of Ac.4.00 and used to cultivate the same by raising different crops like turmeric, chillies and vegetables and earning Rs.4,000/- per month from agriculture and Rs.6,000/- on profession, totaling Rs.10,000/- per month. In the cross examination, he stated that he did not board into the bus and therefore, he could not give the strength of passengers boarded and traveling in the bus. He stated that about 4 and 5 passengers boarded into the bus including the deceased. Prior to the deceased, 2 and 3 persons boarded into the bus. The conductor neither closed the door nor gave any signal to the driver to start the bus. He denied the suggestion that after receiving signal from the conductor alone the driver started the bus. He also denied the suggestion that he was speaking false to help the family of the deceased because the deceased belongs to his own caste. The learned counsel for the appellants submits that PW 2 was admittedly not waiting at the bus stand and therefore, it cannot be said that the driver of the APSRTC bus did not receive any signal from the conductor. The evidence of PW 2 cannot be believed in so far as his statement about the signal said to have not been given by the conductor to start the bus is concerned. May be PW 2 was unable to observe the signal if any given by the conductor as well as the signal received by the driver, but he being the person waiting at the same bus stand for a bus, his evidence to the extent that when the bus stopped at the bus stand three persons boarded and the deceased was also boarded and at that time the bus started suddenly without closing the door cannot be discarded. He is an eyewitness and he is in a position to state whether the door is closed or not, and he is entitled to say what he had witnessed the incident. Even according to Ex.A1 FIR and the charge sheet, it is clear that on 27.07.1999 at about 5.30 p.m. while the passengers were getting into the bus, the bus driver without noticing the passengers, negligently, rashly and suddenly started the bus and one of the passengers fell down and the rear tyre of the bus ran over him. The charge sheet also indicates that as per the investigation of the police and the statements of witnesses recorded by the police, it is established that on 27.07.1999 at about 5.30 p.m. the driver of the APSRTC bus stopped the bus at Nandipet bus stand where the passengers got down and while the passengers were boarding the bus, the driver in rash and negligent manner suddenly started the bus, due to which one of the passengers i.e. the deceased fell down on the road and rear wheel of the bus went on him. He sustained multiple injuries and fractures and succumbed to injuries. Therefore, it cannot be said that there was no rash and negligent driving on the part of the driver of APSRTC Bus. I am of the opinion that the oral and documentary evidence establishes beyond all reasonable doubt that the accident was occurred due to rash and negligent driving of the driver of APSRTC alone, by reason of which the deceased fell down from the footboard and rear wheel of the bus ran over from him and on account of several fracture injuries he succumbed to injuries on the same day. In so far as the income of the deceased is concerned, though there was no clear evidence about the possession of the agricultural lands and the actual income the deceased used to earn every month, the wife of the deceased and PW 2 stated that the deceased was having one of the barber shops in Nandipet which is Mandal Headquarter and he was also having agricultural land. However, as against the claim of income, the Tribunal below taken into account the income of the deceased as Rs.3,000/- per month which would come to Rs.36,000/- per annum. After deducting one-third towards personal expenses, the contribution to the family was taken at Rs.24,000/- The applied multiplier in this case is 18. The learned counsel for the claimants submits that no doubt as per the judgment of the Hon’ble Supreme Court of India in the case of Sarla Verma v. Delhi Transport Corporation[1] the appropriate multiplier as per Col.No.4 of the schedule mentioned in the said judgment is 17. In the said judgment, the Apex Court held that if the deceased is having four dependents, deduction towards personal and living expenses must be 1/4th from the income of the deceased. In this case, the deceased was having four dependents i.e. wife and three children and therefore, as per the aforesaid judgment, the contribution of the deceased to the family shall be taken into account as 3/4th out of the total income of Rs.36,000/- after deducting 1/4th towards personal and living expenses. If that be so, the income of the deceased would come to Rs.27,000/- per annum and the appropriate multiplier is 17. Therefore, the claimants are entitled to compensation of Rs.4,59,000/- (Rs.27,000/- x 17). Apart from the said amount, the Tribunal below also awarded compensation of Rs.15,000/- towards loss of estate and Rs.15,000/- towards loss of consortium. Admittedly, the claimants have claimed compensation of Rs.4 lakhs alone. I am of the opinion that the claimants are not entitled for more compensation than claimed. The Court below rightly restricted their claim upto Rs.4 lakh only. Accordingly, both the appeal and cross-objections are dismissed. No order as to costs. ___________________ V.ESWARAIAH,J Dated: 15.07.2010 Dsr [1] 2009 ACJ 1298