IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTYSEVENTH DAY OF JANUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal Nos.2909 of 2003 & 3556 of 2003 C.M.A.No.2909 of 2003 Between: APSRTC, represented by its Managing Director, Jubliee Bus Stand, Secunderabad and another .. Appellants AND Razia Begum and 4 others .. Respondents C.M.A.No.3556 of 2003 Between: Razia Begum and 4 others .. Appellants AND APSRTC, represented by its Managing Director, Jubliee Bus Stand, Secunderabad and another .. Respondents COMMON JUDGMENT: Both the appeals are directed against the award in O.P.No.1012 of 2000 dated 10-03-2003 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, City Civil Court, Hyderabad. C.M.A.No.2909 of 2003 is filed by the respondent-APSRTC represented by two of its officials, while C.M.A.No.3556 of 2003 is by the claimants. Syed Osman Ali was grievously injured due to APSRTC bus AP-9-Z-5695 running over his legs on 6-3-2000 at about 7-15 P.M. near Secunderabad Parade grounds. The driving of the bus was alleged to be rash and negligent and Osman Ali was admitted in Gandhi Hospital, Secunderabad, where he died while undergoing treatment. The wife and children of Osman Ali sought for a compensation of Rs.4,00,000/- claiming the deceased aged 40 years to be earning Rs.3,000/- per month as Hamali under a cement dealer. Mahankali police was claimed to have registered Crime No.45 of 2000 regarding the accident. The Corporation contested the claim contending that when the bus was proceeding near Plaza Cross roads, the deceased hit by an unknown vehicle lost his balance and fell down near the back foot board of the bus. The Corporation is, hence, not liable to pay any compensation. The Tribunal framed issues on the responsibility for the accident and the entitlement of the claimants to compensation and examined PWs.1 and 2 and RW.1 and marked Exs.A.1 to A.5 and B.1 during enquiry. In the impugned award, the Tribunal relied on the eye- witness account of PW.2 and the contents of Ex.A.1-FIR, Ex.A.2- Charge sheet, Ex.A.4-inquest report and Ex.A.5-Post Mortem Report. The Tribunal lent no credence to the claims of the bus driver as RW.1 or the acquittal of the driver under Ex.B.1- Judgment by the Criminal Court as the acquittal was due to non- examination of any eye-witness and non-production of the relevant material. The Tribunal also took note of the different standards of proof in civil and criminal cases and the Tribunal further noted the conduct of departmental enquiry by the Corporation itself against RW.1, which would not have been ordered if there was no accident at all. The Tribunal, after fixing the responsibility for the accident on the RTC bus driver, considered the monthly income of the deceased at Rs.1500/- per month in the absence of any documentary evidence, deducted 1/3rd from the same and on the balance, applied a multiplier of 15 to arrive at a total loss of future earnings or contribution at Rs.1,80,000/-. Considering that loss of consortium and loss of love and affection also have to be compensated, the Tribunal rounded off the compensation to Rs.2,00,000/- payable with interest at 9% p.a. and proportionate costs. The Corporation challenged the award in C.M.A.No.2909 of 2003 contending that the RTC bus was not involved in the accident at all and PW.2, who reached the accident spot within 5 to 10 minutes, was not an eye-witness. The judgment of the Criminal Court and the other circumstances including the conclusion of the Criminal Court about the fabrication of Ex.P.2-statement of the deceased were ignored unjustly. The multiplier applied was also incorrect and in any view, the deceased crossing the road was guilty of contributory negligence. Hence, the Corporation desired the award to be reversed. The claimants in C.M.A.No.3556 of 2003 protested against not taking at least Rs.2,000/- per month, which were the minimum wages of a labourer, into account and not applying a multiplier of 16. They desired that the entire compensation of Rs.4,00,000/- as claimed be awarded. Sri K. Madhava Reddy, learned standing counsel for APSRTC and Sri C. Vikram Chandra, learned counsel for the claimants are heard. The points that arise for consideration in this appeal are,- 1) Whether the accident occurred due to the rash and negligent driving of the RTC bus? 2) If so, what is the just and adequate compensation to which the claimants are entitled? Point No.1: Strong reliance was placed by the learned standing counsel for the APSRTC on Ex.B.1-Judgment in C.C.No.1066 of 2000 on the file of XI Metropolitan Magistrate, Secunderabad, dated 28-09- 2001 under which RW.1 bus driver was acquitted. It is seen from the judgment that the Criminal Court considered PW.1 and PW.2 to be not eye-witnesses and noted PW.3, the Sub-Inspector, to have not gathered the evidence of any eye-witnesses. PW.4 was noted to have only recorded the statements of the injured and the Criminal Court suspected the genuineness of Ex.P.2-statement of the deceased-Osman Ali recorded by PW.4 due to some interpolations without proper initials and the manner of location of the thumb impression of the deceased. The Criminal Court did not rule out the possibility of the injured being in an unconscious state at the alleged time of recording of Ex.P.2 and while noting the evidence of the doctor, who issued Ex.P.5-Post Mortem certificate, to be disclosing run over injuries for the deceased, the Tribunal considered the absence of any direct evidence to be entitling the accused to the benefit of reasonable doubt. Thus, the fact that it was run over injuries that caused the death of the deceased-Osman Ali was not doubted by the Criminal Court, though it did not consider the responsibility of the bus driver for causing such injuries to have been proved. The evidence in the criminal case also did not appear to have in any manner probablised the deceased having been run over by some other vehicle and the case being foisted against the RTC driver. Though PW.1 in the criminal case claimed to have gone to the scene in an auto a few minutes later to the alleged time of accident, it was in his auto that the injured was taken to the hospital and he was told even at the earliest point of time that the accident was caused by a bus. Similar was the information to PW.2 therein, the brother-in- law of the injured, and the suspicious circumstances surrounding Ex.P.2 need not necessarily lead to any assumption of fabrication of Ex.P.2 or falsehood of the claim of involvement of RTC bus in the accident. The judgment clearly discloses that it was the default of the investigating agency in not properly investigating the crime that resulted in the acquittal of the bus driver. In this case, the very counter of RTC shows that when the subject bus admittedly driven by RW.1 was near the scene of accident, the deceased was claimed to have fallen near the back footboard of the bus on being hit by another vehicle. At that part of the day and at that location in Secunderabad city, it can even be taken judicial notice of that the matter would not have gone unnoticed by the people moving on the road at that time. As such, the involvement of an unknown vehicle and the innocence of the bus driver could have been a matter of record immediately and notwithstanding the suspicion against Ex.P.2, it is seen from Ex.A.1 herein that the crime was registered by 11-45 P.M. on the same day i.e. 6-3-2000 and reached the concerned Magistrate by 1-15 P.M. on the next day i.e. 7-3-2000. While the police were not alleged to have had any motive in fabricating a false crime specifying the bus with its number in the earliest version, their investigation concluded against the bus driver was based on the circumstantial evidence collected by them. It is true that no effort appeared to have been made to have the benefit of any eye-witness account, but any deficiency in investigation need not prejudice the claims of the dependants of the deceased for just compensation. PW.2 claimed to have reached the scene within 5 to 10 minutes after the accident and also claimed to have shifted the injured to Gandhi Hospital in an auto accompanying him to the hospital. The witness was unacquainted with the claimants and though he was acquainted with the deceased, he was not shown to have any strong reason to resort to falsehood to help the claimants. The wife-PW.1 also knew about the accident in the manner alleged by the claimants and on the admitted presence of the bus at the time of the accident even according to the counter, the absence of any indication about the involvement of any unknown vehicle and the other circumstances referred to above, the conclusion of the Tribunal that the accident was probablised to have been caused due to the rash and negligent driving of the RTC bus cannot be interfered with, more so, when RW.1 admitted facing a departmental enquiry, which could not have been ordered by the Corporation but for the involvement of the bus in the accident as observed by the Tribunal. Coming to the quantum of compensation, it is true that the deceased aged 40 years was claimed to be working as Hamali earning Rs.3,000/- per month. But, in the absence of any documentary evidence to prove such income or information about the minimum wages payable to a Hamali at the relevant time under the Minimum Wages Act, the Tribunal cannot be considered to have gone wrong in approximately assessing the monthly income of the deceased at Rs.1500/- per month, which is higher than the minimum presumed income of Rs.15,000/- p.a. according to the Second Schedule to the Motor Vehicles Act in case of non-earning persons. However, the Tribunal deducted 1/3rd of such notional income towards the personal expenses, which the deceased would have incurred had he been alive, while the deceased left five dependents. As per Sarla Verma and others v. Delhi Transport Corporation and another[1], in the event of the dependent family members being 4 to 6, the deduction should be 1/4th. If such a deduction were to be made and the loss of dependency calculated, the same comes to about Rs.2,02,500/-. However, even the minimum wages payable to unskilled labourer under the Minimum Wages Act at the relevant time would have been higher and if monthly earnings were presumed at Rs.1,600/- in which an element of guess and estimate are inevitable, the same mode of calculation deducting 1/4th of the assessed income towards personal expenses and applying the multiplier of 15 would result in loss of dependency of Rs.2,16,000/-. Sarla Verma and others v. Delhi Transport Corporation and another (stated supra) itself mandates payment of Rs.10,000/- towards loss of consortium and Rs.5,000/- each towards loss of estate and funeral expenses, and therefore, the total compensation to which the claimants will be entitled will come to Rs.2,36,000/- out of which, of course, Rs.2,00,000/- was already granted by the Tribunal. On the enhanced portion of Rs.36,000/-, interest can be restricted to 6% p.a. in the light of the length of time for which the interest has to be paid by the Corporation, a public body, and proportionate costs of course shall follow suit. While the appeal by the Corporation should, therefore, fail, the appeal by the claimants should succeed to that extent. Accordingly, the award dated 10-03-2003 in O.P.No.1012 of 2000 on the file of the Chairman, Motor Accidents Claims Tribunal- cum-II Additional Chief Judge, City Civil Court, Hyderabad, is modified by granting a further compensation of Rs.36,000/- with interest thereon at 6% p.a. from the date of petition till the date of realisation and proportionate costs, in addition to the compensation already awarded by the impugned award. C.M.A.No.3556 of 2003 is allowed in part accordingly without costs and C.M.A.No.2909 of 2003 is dismissed without costs. ______________________ G. BHAVANI PRASAD, J Date: 27-01-2011 Ksn [1] 2009 ACJ 1298