Andhra HC (Pre-Telangana)
Shamshuddin And Anr. vs Atta Anaruddin And Anr. on 19 June, 2006
Equivalent citations: I(2007)ACC330, 2006(5)ALD50, 2006(6)ALT147
ORDER C.Y. Somayajulu, J.
1. Appellant filed a claim petition seeking compensation of Rs. 2,00,000/-from respondents alleging that their son-Ayub Basha (the deceased), aged 24 years earning Rs. 1,600/- p.m., a van driver, died as a result of an accident, as the van being driven by him was dashed against by a lorry belonging to 1st respondent and insured with 2nd respondent, due to the rash and negligent driving of its driver.
2. 1st respondent chose to remain ex parte both in the Tribunal and in this Court.
3. 2nd respondent filed its counter putting the appellants to proof of the averments in the petition.
4. In support of their case, 1st appellant examined himself as P.W.I and Anr. witness as P.W. 2 and marked Exs-Al to A4. No evidence either oral or documentary adduced on behalf of 2nd respondent.
5. Holding that the accident occurred due to 50% negligence of the deceased and 50% negligence of the driver of the lorry, the Tribunal awarded Rs. 40,000/- as compensation to the appellants. Dissatisfied with the compensation awarded to them, the claimants preferred this appeal.
6. The points for consideration :
1. Due to whose negligence did the accident occur ?
2. To what compensation are the appellants entitled to ?
7. Point No. l : Since P.W.I, father of the deceased, was not an eye-witness to the accident his evidence is not relevant for deciding this point. The evidence of P.W. 2, an injured in the accident, is that he is a clerk of the firm in which the deceased was employed and that he and the deceased after unloading eggs at Madras were returning to their headquarters and when they reached near Sri Perambadur, a lorry came in the opposite direction and dashed against their van resulting the death of the deceased on the spot and injuries to him and that he also filed a claim petition seeking compensation. During cross-examination, he stated that the accident occurred on a wide national high way and that he saw the lorry when it was at a distance of 40 feet and admitted that he, in the claim petition filed by him, alleged that the accident occurred due to negligence of drivers of both the vehicles and sought compensation from the owners and insurer of the both the vehicles involved in the accident.
8. The contention of the learned Counsel for the appellants is that the Tribunal erred in holding that the accident occurred due to negligent driving of the deceased also though there is no such plea and though 1st respondent, the owner of the lorry chose to remain ex parte, and also was in error in drawing an inference on the basis of the evidence of P.W. 2 ignoring Ex-A-3, charge-sheet, which clearly states that the driver of the lorry was responsible for the accident. I am not able to agree with the said contention of the learned Counsel for the appellants, because negligence of a person cannot be judged merely on the ground that he was charge- sheeted. So unless there is evidence to show that the accident occurred due to the negligence of the driver of the lorry, merely on the strength of the averments made in the charge-sheet, it cannot be said that the accident occurred due to rash and negligent driving of the driver of the lorry. The evidence of P.W. 2 shows that the road on the scene of accident is a wide road and that lorry coming in the opposite direction was seen when it was about 40 to 60 ft. away from the vehicle in which he was travelling. Had the deceased been cautious and careful he would have easily averted the accident. Head on collusion between two vehicles usually occurs when drivers of both the vehicles are negligent. Even if one of the drivers is a little careful, there would be possibility to avert the accident. In the claim petition filed by him, P.W. 2 alleged that the accident occurred due to the negligence of drivers of both the vehicles. Therefore, his statement that the accident occurred due to the negligence of the lorry driver cannot be believed and accepted. So I find no grounds to interfere with the finding of the Tribunal that the accident occurred due to 50% negligence of the driver of the lorry and due to 50% negligence of the deceased. The point is answered accordingly.
9. Point No. 2 : The evidence of P.W. 1 is that the deceased, aged about 24 years was earning Rs. 1,600/- per month besides batta of Rs. 100/- per day on working days. Batta is paid to the driver to sustain him when he is away from headquarters. So batta paid need not be taken into consideration for arriving at the contribution of the deceased to the claimants, who are his parents. Since Ex. A4, salary certificate of the deceased was not proved by examining the person who issued it, it cannot be taken into consideration. Even assuming that the deceased was earning Rs. 1,600/-per month, that amount cannot be taken into consideration for arriving at the pecuniary damages payable to the appellants, because, had the deceased been alive, he would have got married and begotten children and would have to maintain his wife and children and so he would not be contributing the same amount which he might be contributing to his parents at the time of his death, in future. The claim petition, and P.W.I also, is silent as to the number of the children of the appellants have. It is not the evidence of P.W.I that he has no other children except the deceased. The other male children also have a duty to maintain the appellants. So appellants cannot be said to be entirely depended on the earnings of the deceased.
10. It is well known that in the case of death of unmarried children the age of the parents but not the age of the deceased that is relevant for fixing the appropriate multiplier. [See A.P. State Road Transport Corporation v. G. Ramanaiah 1987 (2) ALT 526]. The contention of the learned Counsel for the appellants is that since the appellants gave their ages as 55 years and 45 years respectively in the claim petition, the Tribunal ought to have taken those ages as their ages. No doubt, in the claim petition and in the cause title to this appeal also the age of the appellants are shown as 55 and 45 years respectively. So it is not appropriate to take the ages of appellants mentioned in the claim petition as their ages on the date of the death of the deceased, more so because in the deposition of 1st appellant as P.W. 1 his age is noted as 62 years. It is no doubt true that the age of a witness mentioned at the top of the deposition which will be noted before he takes oath, cannot be taken as his age. But, the fact remains that the appellant, who claimed to be 55 years in 1996, while giving evidence in 1998, stated his age 62 years. Since the appellants on whom the burden of proof lay to establish their ages did not choose to adduce evidence regarding to their ages, in the facts and circumstances of the case, their ages at the time of the death of the deceased can be taken as 60 years and 55 years respectively.
11. Though the appellants did not produce the driving licence of the deceased, and did not adduce any satisfactory proof relating to the employment of the deceased, and relied on Ex-A4-Salary certificate, without examining the person who issued it or summoning the accounts of the firm in which the deceased was working, since even a coolie was earning about Rs. 40/- per day during those days, the average contribution of the deceased to the appellants can be taken as about Rs. 700/- per month or Rs. 8,400/- per year and the multiplier can be fixed at 10. So the pecuniary damages payable to the appellants come to Rs. 8,400/- x 10 : Rs. 84,000/-.
12. Since the accident occurred in 1996, in view of the ratio in Y Varalakshmi v. M. Nageswara Rao 1988 (1) ALT 337, the non-pecuniary damages payable to the appellants can be fixed at Rs. 16,000/-. Therefore, appellant would have been entitled to Rs. 84,000/- + Rs. 16,000/- : Rs. 1,00,000/-as compensation for the death of the deceased.
13. As the accident is held to have occurred due to 50% negligence of the deceased appellants are entitled only to 50% of the compensation arrived at i.e., 50% of Rs. 1,00,000/- : Rs. 50,000/-. This point is answered accordingly.
14. In the result, the appeal is allowed in part and an award is passed for Rs. 50,000/-in favour of the appellants against the respondents with interest at 12% p.a. from the date of petition till the date of deposit on Rs. 40,000/- as awarded by the Tribunal and are also entitled to proportionate costs in the Tribunal. Rest of their claim is dismissed without costs. On the additional amount of Rs. 10,000/- awarded in this appeal, appellants are entitled to interest at 9% p.a. from today till the date of deposit into the Court, Parties to bear their own costs in the appeal.