THE HON’BLE SRI JUSTICE NOUSHAD ALI C.M.A.Nos.237 of 2001 & 934 of 2003 11-02-2010 C.M.A.No.237 of 2001: Between: The APSRTC rep. by its Vice Chairman and Managing Director, Mushirabad, Hyderabad. ……….Appellant And Pennada Venkata Naga Rajamani and others. ……….Respondents C.M.A.No.934 of 2003: Between: Pennada Venkata Naga Rajamani and others. ……….Appellant And Mudunuri Janakirama Raju and others. ……….Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI C.M.A.Nos.237 of 2001 & 934 of 2003 COMMON JUDGMENT: These two appeals relate to the award in M.V.O.P.No.537 of 1996, dated 05-09-2000 on the file of the Motor Vehicles Accidents Claims Tribunal-cum-II Additional District Judge, West Godavari District at Eluru. C.M.A.No.237 of 201 is filed by the A.P. State Road Transport Corporation (APSRTC) challenging the liability fastened on it. C.M.A.No.934 of 2003 is filed by the claimants for enhancement of compensation. 2. The parties in these appeals are herein after referred to as claimants, APSRTC and as Insurance Company. 3. The brief facts are that the claimant No.1 is the wife of the deceased Venkateswara Rao and claimant No.2 is his son. On 30-07-1996, the deceased was returning from Eluru along with his friend in a Fiat Car bearing Regn. No.ADW 1240. When the vehicle was at Kaikaram village on N.H.5 road, the bus of APSRTC bearing Regn. No.AP9Z 4266 came in the opposite direction, driven by R.W.1, in a rash and negligent manner, hit the car, as a result of which, Venkataswara Rao died on the spot. The claimants filed O.P. claiming compensation of Rs.5,00,000/- contending that the deceased was aged about 42 years and he was doing business and earning Rs.10,000/- per month. 4. R.W.1 although impleaded as R-1 in the O.P., in C.M.A.No.237 of 2001, he is not impleaded as R-1. In C.M.A.No.934 of 2003, filed by the claimants, he is impleaded as R-1. In the O.P., R-1 and R-3 were set ex parte and the APSRTC and the Insurance Company filed their counters and resisted the claim of the claimants. 5. The APSRTC filed counter stating that on the date of incident, the vehicle started from Ravulapalem. The Bus reached Chebrole bus stop, where some passengers got down and some passengers boarded the bus. After the vehicle moved, the driver found a fiat car coming from Eluru side at a high speed and dashed R.T.C. Bus at its right corner. The driver of the R.T.C. bus himself was injured in the incident and that the driver of the fiat car himself was responsible for the accident. 6. The Insurance Company also filed a counter stating that it was not known who was the driver of a car at the time of the accident. The Insurance Company has denied the car was insured. 7. Based on the pleadings, the Tribunal formulated the issues as to whether the accident occurred due to the rash and negligent driving of the RTC Bus? and whether the claimants are entitled for compensation? and if so, to what amount and against which of the respondents?. 8. In respect of Issue No.1, the Tribunal found that the R.T.C. Bus dashed against the fiat car and as regards the quantum of compensation, the Tribunal awarded Rs.2.00 lakhs with interest at 6% per annum as noted above. Denying the liability, the APSRTC has filed an appeal in C.M.A.No.237 of 2001 and aggrieved by the inadequacy of the compensation, the claimants have filed appeal in C.M.A.No.934 of 2003. 9. Heard Sri K.Satyanaayana Murthy, learned counsel appearing for the appellant-Corporation in C.M.A.No.237 of 2001 and for R-2 in C.M.A.No.934 of 2003. Sri N.Siva Reddy, learned counsel appearing for the appellants in C.M.A.No.934 of 2003 and for R-1 and R-2 in C.M.A.No.237 of 2001. Sri G.Purushotham Rao, learned standing counsel appearing for R-4 in both the appeals. 10. In the light of the rival contentions as to the liability on the part of the APSRTC and the quantum, the point for consideration is whether the APSRTC is not liable to pay the compensation and whether the claimants are not entitled for enhancement of compensation. 11. There is no dispute that there was an accident on 30-07-1996. There is also no dispute that Venkateswara Rao was travelling in the car bearing Regn. No.ADW 1240 and that he died in the accident. 12. The learned standing counsel appearing for the APSRTC contended that there was no negligence on the part of its driver. He further contended that the Tribunal should have relied on the evidence of its driver R.W.1. 13. On the other hand, the learned counsel appearing for the claimants and the learned standing counsel appearing for the Insurance Company contended that the driver of the APSRTC was alone responsible for the accident and that the Tribunal rightly fastened the liability on it. 14. It is a specific case of the claimants that on 30-07-1996, the bus of the APSRTC bearing Regn. No.AP9Z 4266 of Ravulapalem depot was proceeding in the opposite direction and driven in a rash and negligent manner with high speed. The driver R.W.1 without observing traffic rules crossed the road and hit the car. To support the contention, the claimants examined P.W.2 Netala Ramanadham who was an eyewitness. He deposed that he was a resident of Sana Rudravaram. At the time of accident, he was present on the road near the place of accident and observed the car coming from Eluru side and the RTC Bus coming from Ravulapalem side. He deposed that the R.T.C. bus dashed against the car and the incident occurred due to the rash and negligent driving of the R.T.C. driver. In his cross- examination, he denied the suggestion that the accident occurred due to the negligent driving of the driver of the car. 15. The APSRTC, in order to rebut the said allegation, examined its driver as R.W.1. Incidentally, it is to be noted that although R.W.1 was impleded as respondent in the O.P., he remained ex parte and he appeared as a witness during the trial. Except examining the driver, the APSRTC did not make any efforts to examine any other witness. The APSRTC could have examined its own conductor who was very much available in the vehicle. On the other hand, the claimants examined an independent eyewitness to the incident. 16. In the circumstances, I am inclined to accept the contention of the learned counsel for the claimants that the accident occurred due to the rash and negligent driving on the part of the driver of the RTC Bus. The evidence of P.W.2 is categoric that the driver of the APSRTC was rash and negligent and responsible for accident. I, therefore, confirm the finding of the Tribunal that the accident occurred due to rash and negligent driving on the part of the driver of the APSRTC Bus. 17. The learned counsel appearing for the claimants contended that the quantum is not just and reasonable whereas the learned standing counsel appearing for the APSRTC contended that the amount is quite excessive and the same is liable to be reduced. 18. The learned counsel for the claimants contended that the Tribunal awarded compensation of Rs.2.00 lakhs without any discussion and without assigning any reasons as to why the claim is restricted to Rs.2.00 lakhs only. The Tribunal did not make any effort to evaluate the annual dependency and the relevant factors relating to the consortium and other non-pecuniary benefits. 19. The learned counsel for the claimants contended that the deceased used to earn Rs.10,000/- per month and that he was aged 42 years at the time of accident. He relied on Exs.A-5 to A-7, Bank Passbooks and Exs.A-29 to A-31, A-33 to A-40 and A-42 and A-43, Invoices, and A-45, Income Tax Deduction Form. The deceased was doing business in seeds and chemicals and as such he was also an income tax assessee. The deceased left behind him his wife, and a minor son, aged about 14 years, claimant Nos.1 and 2, respectively. As such the amount of Rs.2.00 lakhs awarded by the Tribunal is inadequate. 20. Per contra, the learned standing counsel for the APSRTC contended that the aforesaid exhibits do not show the name of the deceased and it is not possible to connect the documents to the deceased. He further contended that the claimants did not file any acceptable documents to show the income of the deceased. At any rate, the Insurance Company also should be fastened with liability as there was contributory negligence on the part of the driver of the car. The learned counsel for the APSRTC sought to rely on the judgment of the Apex Court in Bijoy Kumar Dugar V. Bidyadhar Dutta and Others[1] to support his contention as to the contributory negligence. 21. I am of the view that the judgment of the Apex Court is not applicable to the facts of the present case as there is no evidence supporting the contention as to the contributory negligence. On the other hand, the evidence of P.W.2 is specific that only APSRTC was responsible for the accident. 22. Sri G.Purushotham Rao, appearing for R-4-Insurance Company in both the appeals contended that the liability should not be fastened to the insurer as the Tribunal gave a categorical finding that the driver of the APSRTC alone was responsible for the accident. He, further, contended that the claimants also, in fact, sought for the compensation only from the APSRTC and that the Insurance Company was made a proforma respondent. He, therefore, contended that no liability should be attached to the Insurance Company. 23. Having regard to the rival contentions as to the income of the deceased, it is essential to ascertain the probable income if not the actual income of the deceased. 24. In the evidence of P.W.1, the claimant No.1, it is clear that her husband was doing business in seeds and chemicals. She also deposed that he was running a computer centre and that the deceased was earning Rs.10,000/- per month. However, the claimants did not file any document to show that the deceased was running computer centre and no specific evidence was let in to show that the deceased was earning Rs.10,000/- per month. The very statement of the claimants without the support of any document cannot be accepted that the deceased was earning Rs.10,000/- per month. However, it cannot be ignored that the deceased was married and maintaining his own family. It is not possible to maintain the family without there being some income earned and contributed for the maintenance. Even if no reliance is placed on the documents, referred to above, it is reasonable to assume that the deceased was earning Rs.3,000/- per month at Rs.100/- per day. The age of the deceased at 42 is not in dispute. Having regard to the fact that there are two claimants, who are the only dependents on the deceased, I am of the view that 1/3rd is liable to be deducted from out the income of Rs.3,000/- per month. Therefore, the dependency can be fixed at Rs.2,000/- X 12 = 24,000/- per annum. Having regard to the age of the deceased, multiplier ‘14’ is to be applied. Therefore, the loss of dependency can be fixed at Rs.3,36,000/-. Hence, I am of the view that the claimants are entitled for this amount of a loss of dependency. However, the 1st claimant being wife is entitled for consortium of Rs.10,000/-. The claimants are also entitled for Rs.2,000/- towards funeral expenses. In all, claimants are entitled for Rs.3,48,000/-. The Tribunal has awarded Rs.2.00 lakhs only. Thus, the claimants are entitled to the deferential amount of Rs.1,48,000/- towards enhancement of compensation. The claimants are entitled for the said sum for this account with interest at 6% per annum on the enhanced amount from the date of this order till the date of realization. 25. It is true that while deciding issue No.1, the Tribunal found that the accident occurred due to the rash and negligent driving on the part of the driver of the APSRTC. In the present appeal, I too reached the same conclusion. However, the Tribunal, while deciding issue No.2, directed that all the respondents to deposit the amount. The decreetal order also shows that all the respondents were made liable to pay the compensation amount. There is apparent contradiction as to the finding on issue No.1 and on the final conclusion. However, the Insurance Company has not chosen to challenge its liability by filing an appeal. I, therefore, cannot upset its liability insofar as the award in the O.P. is concerned. As I reached a conclusion that the accident occurred due to the rash and negligent driving of the vehicle, by the driver of the APSRTC, I hold that the respondents 1 and 2 in C.M.A.No.934 of 2003 are alone jointly and severally liable to pay the amount enhanced in this appeal. 26. In the result, the C.M.A.No.237 of 2001 is dismissed without costs and the C.M.A.No.934 of 2003 is allowed in part against respondents 1 and 2 and dismissed against the respondents 3 and 4 holding that the claimants are entitled for Rs.1,48,000/- as enhancement of compensation with 6% interest on the enhanced amount from the date of this order till the date of realisation. The award in O.P.No.537 of 1996, dated 05-09-2000, is modified accordingly. There shall be no order as to costs. ______________________ 11th February 2010 KVR [1] 2006 (3) S.C.C. 242