Andhra HC (Pre-Telangana)
Pidigala Linga Reddy And Ors. vs Satla Srinivas And Ors. on 31 July, 2001
Equivalent citations: 2003ACJ692, 2001(6)ALD429, 2001(6)ALT367, 2002 A I H C 121, (2003) 1 ACJ 692, (2001) 6 ANDH LT 367, (2001) 2 ANDHWR 436, (2002) 1 ACC 370, (2002) 1 TAC 253, (2001) 6 ANDHLD 429
Author: G. Rohini
Bench: G. Rohini
JUDGMENT Motilal B. Naik, J.
1. Appellants herein, who are the claimants in O.P. No. 334 of 1991 on the file of the Motor Accidents Claims Tribunal (District Judge's Court), Karimnagar, assail the award dated 30.11.1993 made by the Tribunal in the above O.P., on various grounds.
2. Appellants 1 and 2 are the parents and the 3rd appellant is the wife of the deceased P. Srinivasa Reddy. According to the Appellants on 26.12.1990 while the deceased along with T. Devendar Reddy, who is the 4th respondent in the above O.P., were proceeding on Yamaha Motor Cycle being driven by the said Devendar Reddy to Siddipet, around 1.45 P.M. when they reached the place in front of a barber shop near Alugunuru bus stage, an Ambassador Car bearing No. AAR 9876 came in opposite direction with high speed and in rash and negligent manner, hit the motor cycle causing multiple injuries to the deceased Srinivasa Reddy and Devendar Reddy. The deceased was initially treated in the Government Headquarters Hospital at Karimnagar and was shifted to Nizanis Institute of Medical Sciences at Hyderabad on the same day around 8.15 P.M. On 3.1.1991 while undergoing treatment, Srinivasa Reddy succumbed to the injuries sustained by him in the above accident.
3. The appellants filed the above O.P. before the Tribunal below claiming a compensation of Rs. 5,00,000/-for the death of the deceased, who was the sole bread winner to their family.
4. The 1st respondent, who was the driver of the vehicle involved in the accident, and the 4th respondent, who was the driver of the Yamaha Motor Cycle, were set ex parte. The 2nd respondent, who is the owner of the Ambassador car involved in the accident, and the 3rd respondent-Insurance Company filed separate counters denying the allegations made in the petition and contending that the accident took place due to the rash and negligent driving of the motor cycle by the 4th respondent T. Devendar Reddy, along with whom the deceased was travelling as a pillion rider.
5. Basing on the rival pleadings, the Tribunal below framed the following issues for enquiry.
1. Whether the deceased died due to rash and negligent driving of the Ambassador Car bearing No. AAR 9876 by the let respondent or by the negligent driving of the Yamaha Motor Cycle which was driven by the respondent No. 4 or due to the contributory negligence of both the drivers i.e., respondents 1 and 4?
2. Whether the drivers of both the said vehicles (i.e. Rule 1 and Rule 4) were having valid driving licenses at the time of the accident i.e., on 26.12.1990?
3. To what compensation are the petitioners entitled to and which of the respondents are liable to pay such compensation?
4. To what relief?
6. To substantiate their claim, the appellants-claimants examined P.Ws.1 to 4 and got marked Exs.A.1 to A.8. On behalf of the respondents, none was examined, however Ex.B.1 statement said to have been made by the deceased Srinivasa Reddy recorded by the Police under Section 161 Cr.P.C. was marked.
7. On the basis of oral and documentary evidence, the Tribunal below accepted the claim of the appellants about the rash and negligent manner in which the Ambassador Car bearing No. AAR 9876 was driven causing the death of the deceased. Though Ex.A.6, a certificate showing that the deceased was working as Manager in a cinema theatre, and Ex.A.7 salary certificate of the deceased, were filed by the appellants, the Tribunal rejected the claim made by the appellants for granting compensation on the basis of Exs.A.6 and A.7, but solely relied on Ex.B.1 alleged statement made by the deceased to the police indicating that he is an agriculturist and determined the average monthly income of me deceased at Rs. 1,000/-. While determining the monthly income of the deceased at Rs. 1,000/-, the Tribunal applied multiplier 16.51 and came to the conclusion that after deducting one third from the income of the deceased towards personal expenses, the loss of dependency would be to the tune of Rs. 1,32,080/- and awarded the same amount towards loss of dependency. The Tribunal also awarded an amount of Rs. 7,500/- towards loss of expectation of life and future amenities, an amount of Rs. 7,500/- towards pain and suffering undergone by the deceased, Rs. 5,000/- towards loss of consortium to the wife of the deceased and Rs. 10,000/-under various heads including the medical expenditure spent on the deceased. Thus the Tribunal held that the appellants-petitioners are entitled for a total amount of Rs. 1,62,080/-, which includes the claim, under Section 140 of the Motor Vehicles Act. The Tribunal rounded off the ,total compensation to Rs. 1,62,000/-. The Tribunal awarded interest at the rate of 12% p.a. on the above compensation from 16.9.1993 on which date P.W. 1 was examined till the date of realisation. It is this award, which is assailed by the appellants-claimants before this Court on various grounds.
8. Sri Rajanna, learned counsel for the appellants submitted that the Tribunal has grossly erred in discarding Exs.A.6 and A.7 for the purpose of ascertaining the monthly income of the deceased, which should have been basis for determining the monthly contribution of the deceased to the family for the purpose of determining the compensation under the head of loss of earnings. He further contended that the Tribunal has erred in relying on Ex.B.1 a statement said to have been made by the deceased to the Police under Section 161 Cr.P.C. wherein the deceased seems to have stated that he is an agriculturist by avocation, and on which basis the Tribunal determined the average monthly income of the deceased at Rs. 1,000/- per month. The counsel also contended that the Tribunal is not justified in deducting one third of the monthly income of the deceased towards his personal expenses. Apart from the above submission, the counsel for the appellants also contended that the Tribunal has not awarded any amount under the head of non-pecuniary damages and awarded only an amount of Rs. 5,000/- instead of Rs. 15,000/-to the wife of the deceased towards loss of consortium, which is quite contrary to the view taken by the Courts so far and submitted the award made by the Tribunal is not just and is liable to be set aside and the appellants are entitled for enhancement of compensation.
9. We have also heard Sri Kota Subba Rao, learned counsel for the 3rd Respondent-Insurance Company, who justified the award made by the Tribunal. He contended that the 161 Cr.P.C. statement made by the deceased to the police was also filed by the claimants themselves, which was marked as Ex.A.5 on their behalf, and therefore, it can be presumed that the deceased had made such a statement and the myth surrounding the acceptance of the 161 Cr.P.C. statement of the deceased by the Tribunal below cannot be agitated now before this Court. He further contended that having regard to the set of circumstances, the Tribunal has rightly accepted the 161 Cr.P.C. statement made by the deceased to the police and awarded just and reasonable compensation, which requires no interference by this Court.
10. Before proceeding to examine the contentions with regard to the question of quantum of compensation, we think the most serious contention in this appeal seems to be about the acceptance of the 161 Cr.P.C. statement said to have been made by the deceased to the police, by the Tribunal for awarding compensation. Under Ex.A.5, the claimants have got marked copy of F.I.R. in Crime No. 130/90, indicating the occurrence of accident on 26-12-1990 as a result of which the deceased P. Srinivas Reddy died. Ex.B.1 said to be the statement made by deceased under Section 161 of Cr.P.C. to the police, though marked on behalf of respondents as Ex.B.1, none is examined to prove the said factor of making statement by the deceased. It is well-established principle that a statement recorded by the Police Authority under Section 161 Cr.P.C., during investigation cannot be used as evidence against an accused person, but however the accused can take advantage of 161 Cr.P.C. statement of a witness to contradict the evidence adduced on behalf of the prosecution. Even though the 161 Cr.P.C. statement said to have been made by the deceased has been filed by the appellants and was marked as Ex.A.5 on their behalf, that cannot be a ground for the respondents to plead that since the appellants themselves have filed the 161 Cr.P.C. statement, its genuineness cannot be questioned. Law is well settled in this regard.
11. Unfortunately, the Tribunal has treated the 161 Cr.P.C. statement said to have been recorded by the Police from the deceased as a dying declaration. In order to accept a dying declaration there are certain requirements which have to be necessarily fulfilled. When a dying declaration is recorded by any Authority, there shall be a certificate issued by the competent Medical Authority indicating that the deceased, who made such dying declaration at the relevant point of time, was not only conscious, but was also in a fit state of mind to make such declaration and the same shall also to be proved in a Court of law by examining the Authority, who recorded such dying declaration and the person who was present during recording of such declaration.
12. In this case neither the Authority who recorded the 161 Cr.P.C. statement of the deceased, has been examined nor there is any supporting medical evidence to show that the deceased was conscious and in a fit state of mind while making such statement. In the absence of all these essential features, we are at a loss to know as to how the Tribunal has accepted the statement said to have been made by the deceased to the police under Section 161 Cr.P.C. and used it against the beneficiaries for the purpose of denying just and reasonable compensation. We are also at a loss to notice that this award has been passed by a senior Officer in the cadre of Grade I District Judge and it is unfortunate that such a Senior Officer is so ignorant of the essential conditions for accepting a dying declaration. As indicated above, we are constrained to say that the determination of compensation by the Tribunal solely relying on the 161 Cr.P.C. statement said to have been made by the deceased to the police is unwarranted and accepting the 161 Cr.P.C. statement as admission by the deceased and using the same against the claimants is unsustainable. Denying just compensation by the Tribunal to the claimants on the basis of alleged admission of the deceased under 161 Cr.P.C. statement is solely illegal. The Tribunal was only determining the compensation but was not deciding criminal case against the accused to make use of the statement as dying declaration.
13. By producing Exs.A.6 and A.7 the appellants have brought to the notice of the Tribunal that the deceased was working as Manager in a cinema theatre and earning an amount of Rs. 3,600/- per month. Exs.A.6 and A.7 are supported by the evidence of P.Ws. 3 and 4. Nothing contra is elicited from the cross-examination of P.Wa. 3 and 4 on behalf of the respondents to discard the evidence of P.Ws. 3 and 4. Therefore, when Exs.A.6 and A.7 are available before the Tribunal with the supporting evidence of P.Ws. 3 and 4, the Tribunal ought not to have discarded Exs.A.6. and A.7, Though none was examined to prove Ex.B.1 161 Cr.P.C. statement said to have been made by the deceased to the Police, the Tribunal accepted the same and determined the income of the deceased to be at Rs. 1,000/-per month as income from agriculture, whereas failed to take notice of Ex.A.6 and A.7, though proved by PW3 and P.W.4, which indicate that the deceased was working as a Manager in a cinema theatre. Through Ex.A.7 the appellants have proved that the deceased, at the relevant point of time, was earning Rs. 3,600/- per month. There is no reason for us to discard the evidence relating to Ex.A.7 for the purpose of determining just compensation.
14. Admittedly, the deceased was aged 30 years at the time of his death. We therefore accept the income of the deceased to be at Rs. 3,600/- per month and deduct one third from it towards his personal expenses. Hence the monthly contribution by the deceased to the family is determined at Rs. 2,400/-.
15. Following the ratio laid down by the Supreme Court in Bhagawandas vs. Mohd. Arif, 1987 (2) ALT 137, the relevant multiplier to be applied in this case is 16.51, which can be rounded off to 17. Therefore, the appellants are entitled to an amount of Rs. 4,89,600/- towards loss of earnings. The Tribunal has grossly erred in awarding only an amount of Rs. 5,000/- to the wife of the deceased towards loss of consortium, even though she is entitled for more. Therefore, we award an amount of Rs. 15,000/- to the 3rd appellant, who is the wife of the deceased, towards loss of consortium. We also award an amount of Rs. 15,000/- towards loss of estate. It is seen from the evidence that the claimants have incurred huge expenditure for the treatment of the deceased and for shifting him from Karimnagar to Hyderabad and taking the dead body from Hyderabad to Karimnagar. Therefore, we award an amount of Rs. 10,000/- towards this expenditure. Thus in all the appellants shall be entitled to a compensation of Rs. 5,29,600/-. We noticed that the Tribunal awarded interest on the compensation amount not from the date of the petition, but from 16.9.1993 on which date P.W. 1 was examined, which is also quite unjust and contrary to the view taken by the Courts so far. Therefore, we award interest at the rate of 12% per annum on the above compensation amount from the date of the petition till the date of realisation.
16. The learned counsel or the 3rd Respondent-Insurance Company contended that the liability should be fastened to the 4th respondent also for the reason that there was also rashness and negligence on the part of the 4th respondent. We are not persuaded to agree to the said submission for the reason that the Tribunal below has given a finding that the deceased died due to the accident which is due to the rash and negligent driving on the part of the driver of the Ambassador Car bearing No. AAR 9876. Therefore, in our view, the Tribunal was justified in fastening the entire liability on the insurer of the Ambassador Car AAR 9876, who is the 3rd respondent herein.
17. The learned counsel for the 3rd Respondent-Insurance Company made yet another submission contending that the appellants have restricted their claim only to an amount of Ra.5,00,000/-, therefore, they shall not be entitled to any compensation more than Rs. 5,00,000/-. We are not persuaded to accept the above submission as the said issue whether the claimants are entitled to compensation over and above the compensation claimed by them has been examined and decided by us in favour of the claimants by a detailed judgment rendered by us in C.M.A. No. 1328 of 1995, dated 5.7.2001. Since we have already taken a view on this aspect, the contention of the learned counsel is rejected.
18. For the foregoing reasons, the appeal is allowed awarding a compensation of Rs. 5,29,600/- to the appellants, which carries interest at the rate of 12% per annum from the date of the petition till the date of realisation. As the appellants have paid Court fee on Rs. 5,00,000/-, they shall now pay the deficit Court fee on Rs. 29,600/-.
19. Out of the above compensation amount, appellants 1 and 2, who are the parents of the deceased shall be entitled to Rs. 1,50,000/- each and they are permitted to withdraw 50% of the amount from their share along with the accrued interest and the remaining amount shall be kept in fixed deposit in a nationalized bank for a period of five years. The 3rd appellant, who is the wife of the deceased, shall be entitled to an amount of Rs. 2,14,600/- which includes Rs. 15,000/- towards loss of consortium and she is permitted to withdraw 50% of the amount from her share and the remaining amount shall be kept in fixed deposit for a period of five years in a nationalized bank. We also make it clear that in case of any urgency, the appellants 1 to 3 shall be at liberty to file a petition before the Tribunal for withdrawal of any amount from the fixed deposits made on their names, and on filing such petitions the Tribunal shall examine the circumstances and pass appropriate orders.