Andhra HC (Pre-Telangana)
Andhra Pradesh State Road Transport ... vs Chatharajupalli Nageswaramma And Ors. on 22 March, 2004
Equivalent citations: II(2007)ACC65
ORDER C.Y. Somayajulu, J.
1. Since both these appeals arise out of the same claim petition they are being disposed of by a common judgment.
2. For the sake of convenience the parties would hereinafter be referred to as they are arrayed in the Tribunal.
3. Claimants who are the widow, children and mother of Apparao (the deceased), who died due to an accident that occurred on 28.5.1996 at about 11.00 p.m., due to a collision between the scooter on which he was proceeding and a bus belonging to the respondent, allegedly due to the rash and negligent driving of the driver of the bus, filed the claim petition seeking compensation of Rs. 3,30,000/- from the respondent on the basis that the deceased who was aged about 46 years was earning Rs. 5,000/- per month. Respondent filed counter inter alia contending that the accident occurred only due to the rash and negligent driving of the scooter by the deceased and that there was no negligence on the part of the driver of the bus belonging to it.
4. In support of their case, claimants examined the first claimant as P.W. 1 and the pillion rider on the scooter being driven by the deceased at the time of accident as RW. 2 and another-witness as P.W. 3 and marked Exs. A-1 to A-18. On behalf of the respondent, the driver of the bus involved in the accident was examined as R.W. 1 and Exs. B-1 and B-2 were marked. The Tribunal held that the accident occurred due to the rash and negligent driving of R.W. 1 (the driver of the bus) and taking the income of deceased at Rs. 15,000/- per annum and his contribution to claimants at Rs. 10,000/- per annum awarded a total compensation of Rs. 1,72,000/- to the appellants. Aggrieved by the award passed against it, the respondent in the claim petition preferred C.M.A. No. 2326 of 1998 and dissatisfied with the compensation awarded to them, claimants in the claim petition preferred C.M.A. No. 1430 of 1999.
5. The points for consideration are:
(1) Whether the accident occurred due to the negligence of R.W. 1 or due to the negligence of the deceased? (2) To what compensation are the appellants entitled to?
Point No. 1:
6. The contention of the learned Counsel for respondent is that in view of Ex. B-1 the Tribunal was in error in accepting the evidence of RW. 2 and ought to have held that the accident occurred only due to the negligence of deceased. The contention of the learned Counsel for claimants is that since the Tribunal by giving cogent reasons held that the accident occurred due to the rash and negligent driving of the bus by R.W. 1 there are no grounds to interfere with the said finding.
7. Since RW. 2 gave Ex. A-1 First Information Report regarding the accident and was cited as a witness to the accident in the charge-sheet filed by the police against R.W. 1 as seen from Ex. A-5 his presence at the scene of accident at the time of accident need not be doubted. Ex. A-4, report of the Motor Vehicles Inspector, shows that the accident did not occur due to any mechanical defects in the bus belonging to the respondent.
8. The evidence of P.W. 2 is that the bus came to the wrong side of the road and dashed against the scooter being driven by the deceased. The contention of the learned Counsel for the respondent is that in view of Ex. B-1 statement given by P.W. 2 to the Depot Manager, the evidence of P.W. 2, which is contrary to Ex. B-1 cannot be accepted, because Ex. B-1 cannot be used as a substantive evidence and can only be used for contradicting P.W. 2. Significantly, the person to whom Ex. B-1 was given is not examined and the contents of Ex. B-1 are not confronted to P.W. 2 when he was in the witness box. As is well known, there is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfills the requirements of Section 21 of Evidence Act, in the latter case a prior statement can be used to discredit the credibility of the witness, and does not become substantive evidence. In the former there is no need to put the statement containing the admission of the party being put to the party because it is evidence pro prio vigore; in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement, unless it has been put to him, as required by Section 145--see Biswanath Prasad and Ors. v. Dwaraka Prasad and Ors. . Therefore, the Tribunal not taking Ex. B-1 into consideration cannot be said to be improper.
9. In view of the fact that there was no mechanical defect in the bus being driven by R.W. 1, and since the evidence of P.W. 2 shows that the accident occurred due to the negligence of the driver of the bus, I hold that the accident occurred only due to the negligence of R.W. 1. The point is answered accordingly.
Point No. 2:
10. The contention of the learned Counsel for claimants is that the Tribunal was in error in not believing the documentary evidence adduced by the claimants to show that the deceased was having a binding work shop and had taken loan from Andhra Pradesh State Finance Corporation and so it has to be taken that the deceased was earning Rs. 5,000/- per month. If the deceased was earning Rs. 5,000/- per month from his business, he ought to be maintaining accounts, and submitting returns of income tax. But, no such documentary evidence is adduced by the claimants. In the absence of such documentary evidence, the Tribunal taking the annual income of the deceased at Rs. 15,000/- cannot be erroneous. When the annual income of the deceased was Rs. 15,000/- his contribution to the claimants would be Rs. 10,000/- per year.
11. Since the post-mortem examination report of the deceased shows his age as '40' years, the age of the deceased can be taken as around '40' years at the time of his death. The contention of the learned Counsel for the respondent is that the Tribunal was in error in fixing the multiplier at '16' when the right multiplier ought to be taken is '12.79' as per Bhagawan Das v. Mohd. Arif 1987 (2) ALT 137. The contention of the learned Counsel for the claimants is that since the Tribunal took into consideration the multiplier as in Schedule II of the Act, it cannot be said that the multiplier fixed by the Tribunal at '16' is erroneous.
12. In Bhagawan Das case (supra), it was held that in case of non-service victims the multiplier can be increased by one or two points approximately. Since the deceased was not a salaried employee, taking into consideration the fact that he was aged 40 years at the time of his death, the multiplier can be fixed at 14' and, so, the pecuniary damages payable to the claimants would come to Rs. 10,000 x 14 = Rs. 1,40,000/-.
13. In Y. Varalakshmi v. M. Nagesrvara Rao , it is held that in every case of a fatal accident a minimum amount of Rs. 15,000/as to be awarded to the claimants towards non-pecuniary damages. In this case the Tribunal awarded only Rs. 5,000/- obviously keeping in view Schedule II. Since the accident in this case occurred about 8 years after Y. Varalakshmi's case (supra) the non-pecuniary damages can be fixed at Rs. 30,000/-.
14. As held in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas , first claimant is entitled to Rs. 15,000/- towards loss of consortium.
15. Thus, claimants are entitled to Rs. 1,40,000 + Rs. 30,000 + Rs. 15,000 - Rs. 1,85,000/- from the respondent. The point is answered accordingly.
16. In the result, the C.M.A. No. 1430 of 1999 is allowed in part and the C.M.A. No. 2326 of 1998 is dismissed and an award is passed for, Rs. 1,85,000/- in favour of the claimants against the respondent with interest at 9% per annum from the date of the petition till the date of deposit into Court with proportionate costs in the Tribunal. Rest of the claim of the claimants is dismissed without costs. From out of the said amount, fifth claimant is entitled to Rs. 25,000/- and interest thereon; claimants 2 to 4 are each entitled to Rs. 36,250/- and interest thereon; and first appellant is entitled to Rs. 51,250/- interest thereon. Parties are directed to bear their own costs in these appeals.