Andhra HC (Pre-Telangana)
Karri Nagapadma Sridevi And Anr. vs Oriental Fire And General Insurance Co. ... on 14 August, 2001
Equivalent citations: 2003ACJ671, 2001(6)ALD844, 2002(1)ALT44
Author: B. Subhashan Reddy
Bench: B. Subhashan Reddy
JUDGMENT B. Subhashan Reddy, J.
1. These two letters patent appeals arise out of the common judgment dated 29-12-1988 rendered by a learned single Judge of this Court in CMA Nos.974 and 1027 of 1986 respectively, which in turn arose out of OP Nos.240 and 105 of 1983 respectively on the file of Motor Accidents Claims Tribunal (District Judge), East Godavary at Rajahmundry, under Section 110-A of the Motor Vehicles Act.
2. In LPA No. 225 of 1990, the minor daughter of the deceased parents is the first appellant, while the second appellant is the mother of the deceased Veera Reddy. In the other LPA No. 277 of 1990, appellants 1 and 2 are the parents of the deceased Syamala, while the 3rd appellant is again the daughter of late Syamala. To say concisely, while LPA No. 225 of 1900 relates to the claim on account of the death of Karri Veera Reddy, LPA No. 277 of 1990 concerns the payment of compensation on account of the death of late Syamala. Late Veera Reddy and Late Syamala were the husband and wife and along with their daughter namely Karri Naga Padma Sridevi aged about 5 months, were proceeding on the Luna Moped on the road-cum-rail bridge of Rajahmundry towards Kovvur on 18-1-1983 at about 6 p.m. and at that time, the lorry bearing Registration NoATP 5688 was coming in the opposite direction and dashed against the said Luna Moped resulting in the death of Veera Reddy and Syamala and injuries to the minor child - Naga Padma Sridevi.
3. OP No. 105 of 1983 was filed by the parents and daughter of late Syamala for compensation on account of the death of late Syamala, OP No. 240 of 1983 was filed by the daughter and mother of deceased Veera Reddy for compensation on account of the death of late Veera Reddy and OP No. 307 of 1983 was filed by the minor child - Karri Nagapadma Sreedevi through her grandfather and guardian Satti Eswara Reddy, the 1st petitioner in OP No. 105 of 1983 for compensation for the injuries caused to her. There were three respondents i.e., Insurer, owner and driver of the lorry -respondents 1 to 3 respectively - in all the three original petitions. The 3rd respondent
- Driver remained ex parte. Counter affidavit has been filed by the 1st respondent -insurer stating that the Luna Moped was carrying heavy load, that late Veera Reddy got confused and turned the vehicle towards right side resulting in the accident and that the lorry was being driven on its left side and the driver was not guilty of any rash and negligent driving. On the basis of the pleadings, two issues have been framed, which are common to all the OPs.
(i) Whether the accident occurred due to the rash and negligent driving of the 3rd respondent-driver?
(ii) Whether the petitioners are entitled for any compensation?
4. PW1 is Satti Eswara Reddy, 1st petitioner in OP No. 105 of 1983 (father of late Syamala and father-in-law of late Veera Reddy), PW2 is Smt. Karri Nagaratnam (mother of late Karri Veera Reddy and mother-in-law of late Karri Syamala), PW3
- Pyla Sreeramulu - is the eye-witness to the accident and PW. 4 is Dr. P. Ramachandra Rao, who has treated the minor girl - Karri Nagapadma Sridevi. The documents marked for the petitioners were Ex.A1 - X-ray, Ex.A2 Photo, Ex.A3 - Certificate issued by the doctor - PW.4, and Ex.A4 is the Proceedings of the Executive Engineer (R&B), Rajahmundry regarding the salary particulars of the deceased Karri Veera Reddy. There was no rebuttal evidence let in, either oral or documentary, by the respondents.
5. These two letters patent appeals have been filed seeking enhancement of compensation and it is submitted by Mr. D. Sudershan Reddy, the learned Counsel appearing for the appellants, that the finding of contributory negligence is unsustainable as it is based on assumptions and that the quantum of compensation awarded is inadequate and not based upon the correct application of legal principles enunciated thereto. Mr. K. Mangachary, the learned Counsel appearing for the 1st respondent-Insurer submitted that the finding of contributory negligence has been correctly recorded, that the compensation has been correctly assessed and that no interference is called for.
6. It is a settled proposition that whoever alleges the act of rash and negligent driving on the part of the other, has to prove the same by adduction of satisfactory evidence. In the instant case, PWs. 1 and 2 are not eye-witnesses and the minor child, who sustained injuries and who was being carried in arms by her late mother Syamala was only 5 months old and then we have got only the evidence of PW.3, who was proceeding on the same road on bicycle and in fact, he was overtaken by Luna Moped being driven by late K. Veera Reddy just before the accident. The evidence of PW.3 - the lone eye-witness - was accepted by the Motor Accidents Claims Tribunal. The said witness has clearly and categorically stated that he was going on his bicycle on the left side of road-cum-rail bridge of Rajahmundry towards Kovvur and Luna Moped being driven by late Veera Reddy with his wife late Syamala being the pillion rider holding the minor child - Nagapadma Sreedevi, has overtaken his bicycle and then proceeded in front of him on the left side of the road and slowly and that the lorry came in the opposite direction from Kowur side and was being driven in rash and negligent manner and dashed against the Luna Moped resulting in fatal injuries to late Veera Reddy and late Syamala, who died on the way to hospital and injuries to the minor child. There is no rebuttal to his evidence and it is surprising that the Motor Accidents Claims Tribunal has just assumed contributory negligence on the part of the deceased - Karri Veera Reddy - on the ground that "the collision could have avoided if any of the two drivers of the vehicles were prudent and cautious. Therefore, I feel that the occurrence is due to the contributory negligence of both drivers of the two motor vehicles and I find issue No. 1 in all the OPs accordingly". This finding has been just affirmed by the learned single Judge of this Court in CMA Nos.974 of 1027 of 1986 as a matter of course without even probing into the evidence of PW.3. PW3's evidence is so clear, consistent and cogent that there was absolutely no fault on the part of late Veera Reddy while driving the Luna Moped and that it was the lorry, which was coming in the opposite direction at a high speed and rash and negligent manner, dashed against the Luna Moped resulting in injuries to the child and deaths of her parents. The assumption of contributory negligence is casual and baseless. There cannot be any assumption as against the clear and cogent eye-witness account of PW 3 whose testimony was not at all doubted. In fact, contributory negligence has to be proved after the negligence of respondent No. 3 is proved and Respondent No. 3-Driver remained ex parte and there is no rebuttal evidence at all to come to the conclusion of contributory negligence. Contributory negligence is a matter of proof and not an assumption. In view of the above, the finding of contributory negligence recorded by the Motor Accidents Claims Tribunal and affirmed by the learned single Judge is set aside and it is held that the accident occurred due to the rash and negligent driving of the lorry by the respondent No. 3-Driver.
7. For the death of late Karri Veera Reddy, compensation towards loss of dependency was determined by the Tribunal at Rs. 72,000/- but deducted 50% i.e., Rs. 36,000/- on account of contributory negligence and again slashed it to Rs. 25,000/-on the ground of lump sum payment. The said amount was awarded towards loss of dependency. Rs. 7,000/- was arrived at for damages towards pain, suffering, mental agony, loss of love and affection, damages to Luna Moped and funeral expenses and on the ground of contributory negligence, it was slashed to 50% i.e., Rs 1,500/- and hence, the total compensation of Rs. 28,500/-was awarded on account of death of late Veera Reddy and out of the same, Rs. 7,500/- to his mother - appellant No. 2 in LPA No. 225 of 1990 and the balance of Rs. 21,000/- to the minor child i.e., appellant No. 1 in LPA No. 225 of 1990.
8. On account of the death of late K. Syamala, her parents, who are appellants 1 and 2 in LPA No. 277 of 1990, were granted Rs,500/- and the 3rd appellant i.e., the child of the deceased at Rs. 21,300/-. Rs. 1000/- was arrived at towards funeral expenses, but awarded Rs. 500/- after deducting 50% on account of contributory negligence. Insofar as the compensation of Rs. 21,300/- is concerned, the same was arrived at by estimating the loss of dependency at Rs. 10/- per day i.e., Rs. 300/-per month, which comes to Rs. 3,600/- per year and for 15 years Rs. 54,000/- and then slashed it by 50% making to Rs. 27,000/-and reducing it to Rs. 20,000/- on the ground of lump sum payment. An amount of Rs. 1,300/- was granted towards pain and suffering and love and affection after deducting 50% towards contributory negligence.
9. As we have held mat the finding of contributory negligence is unsustainable, then the amounts, which are payable on account of the death of late Veera Reddy remain at Rs. 72,000/- for loss of dependency and Rs. 7,000/- towards pain and suffering, mental agony, loss of love and affection, damage to Luna Moped and funeral expenses. Likewise, in the case of death of late Syamala, the amount remains at Rs. 54,000/- towards loss of dependency and Rs. 3,600/- towards pain and suffering, loss of love and affection and funeral expenses.
Insofar as the compensation awarded on account of injuries to the minor child is concerned, since there is no appeal before us, we are not dwelling on the same.
10. Coming to the correctness of the quantum of compensation determined by the Tribunal, which is slightly enhanced by the learned single Judge to Rs. 30,000/-towards loss of dependency on account of death of late Veera Reddy, thus awarding Rs. 5,000/- more than what the Tribunal has awarded and also enhancing the compensation to be payable on account of the death of late Syamala from Rs. 20,000/-to Rs. 25,000/-, we now advert to the quantum determined by the learned single Judge only towards loss of dependency of both the deceased namely K. Veera Reddy and his wife K. Syamala and not relating to other heads like pain and suffering etc., as the said grounds have not been raised by the learned Counsel for the appellants and arguments have been advanced only on the issues of contributory negligence and correctness of quantum of loss of dependency.
11. We will first deal with the quantum of loss of dependency on account of the death of late K. Veera Reddy. He was in the service of Roads and Buildings Department of Government of Andhra Pradesh and was drawing a salary of Rs. 650/- per month as is evident from Ex.A4. He was aged 27 years at the time of his death and the multiplier of 18 is applicable basing upon the judgment of the Supreme Court in U.P. State Road Transport Corporation v. Trilok Chandra, . Out of Rs. 650/- per month 1/3rd should be deducted towards personal expenses of the deceased. Then the loss of dependency comes to Rs. 433/-per month, and Rs. 5196/- per year and applying the multiplier of 18, it comes to Rs. 93,528/-. But the multiplicand at Rs. 433/-per month and Rs. 5,196/- per year cannot be static as the deceased Veera Reddy had still 31 years of service and he would have certainly get promotion and also increase in salary, which cannot be assessed at less than 4 times of salary he was getting at the time of his death and in no event, less then two times of the said salary and following the judgment rendered by the Supreme Court in General Manager, KSRTC v. Susamma Thomas, , the loss of dependency can be doubled by determining the multiplicand at Rs. 866/- per month, which would come to Rs. 10,392/- per year and multiplied by 18, it would come to Rs. 1,87,056/-. We hold that the 1st appellant in LPA No. 225 of 1990 is entitled to 3/4th of the said amount and the 2nd appellant in LPA No. 225 of 1990 is 1/4th having regard to her age. This is in addition to the compensation of Rs. 7,000/- payable on account of pain and suffering, loss of love and affection, damages to Luna Moped and funeral expenses. Loss of dependency insofar as late Syamala is concerned, it is a matter of guess work as she was a house wife and Rs. 10/- per day estimated by the Tribunal and slightly enhanced by the learned single Judge is too modest a figure and considering that no mid-servant can be picked up for not less than Rs. 500/- per month and applying the multiplier of 18 in accordance with the judgment of Trilok Chandra's case (supra), it would come to Rs. 1,08,000/- (Rs. 500 x 12 x 18) and this amount is payable to the 3rd appellant in LPA No. 277 of 1990. This amount shall be in addition to the grant of Rs. 3,600/-payable on account of pain and suffering, loss of love and affection and funeral expenses. The above amounts determined shall carry interest at the rate of 9% per annum from the date of original petition till payment.
12. Accordingly, these two letters patent appeals are allowed in part to the extent indicated above. No costs.