Andhra HC (Pre-Telangana)
Tatineni Meena vs Shaik Mansoor Ali And Ors. on 19 June, 2006
Equivalent citations: 2007ACJ520, 2006(5)ALD368, 2006(6)ALT34
JUDGMENT C.Y. Somayajulu, J.
1. Dissatisfied with the compensation awarded to her, one of the claimants in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (the Act) preferred this appeal.
2. The case, in brief, of the claimants is that Paturi Raghuram (hereinafter referred to as the deceased), aged about 29 years and drawing Rs. 3,127-61ps per month as salary as Sub-Editor in Andhra , Printers Limited, while proceeding on his scooter died in an accident caused due to the rash and negligent driving by the first respondent of the lorry belonging to the second respondent and insured with the third respondent, and so they are entitled to a compensation of Rs. 6,00,000/-. The case of the first respondent is that the accident occurred only due to the rash and negligent driving of the scooter by the deceased, and that he was not driving the lorry on that day and that the police foisted a criminal case against him in connection with the accident. Second respondent chose to remain ex parte. Third respondent filed its counter putting the claimants to proof of the averments in the claim petition. In support of their case, claimants examined the appellant as P.W.I and marked Exs.Al to A5. No evidence either oral or documentary was adduced on behalf of respondents 1 and 3. The Tribunal held that the accident occurred due to 50% negligence of the deceased and due to 50% negligence of the first respondent and awarded Rs. 67,000/- as compensation to the claimants.
3. The points for consideration are:
1. Whether the accident occurred due to the rash and negligent driving of the lorry by the first respondent ?
2. To what compensation is the appellant entitled to ?
Point No. 1:
4. The contention of the learned Counsel for appellant is that the Tribunal was in error in finding that the accident occurred due to 50% negligence of the deceased though there is no evidence in that regard.
5. Since the claimants filed the petition alleging that the accident involving the deceased occurred due to the rash and negligent driving of the lorry -involved in the accident by the first respondent and since the first respondent filed his counter denying his driving the lorry at the time of accident, and took a plea that the deceased himself was responsible for the accident and that the case was foisted against him, the burden of proof to establish that the accident occurred due to the rash and negligent driving of the lorry by the first respondent is on the appellant. P.W.1, admittedly, was not a witness to the accident and so she cannot say how the accident occurred. Since there is no other evidence on record to show how actually the accident occurred and since the documentary evidence adduced by the claimants in respect of the accident are Exs.A.3 to A.5 i.e., Xerox copies of F.I.R., Post-mortem Report and Motor Vehicles Inspector's Report and since Ex.A.5 shows that the Motor Vehicles Inspector inspected the vehicles in the police station and that he did not go to the scene of accident, as the vehicles involved in the accident were already removed from the scene of accident and since the claimants, for reasons best known to them, did not produce a copy of the panchanama of the scene of accident and the panchanama of inquest, which gives an indication as to how actually the accident could have happened and since they also failed to produce the charge-sheet, and adduce any evidence to show that police filed any charge-sheet against the first respondent in connection with the accident, it cannot, by any stretch of imagination, be said that the claimants discharged the onus that lay on them. In fact, the appellant should have felt satisfied that the Tribunal, in spite of lack of evidence, held that the accident occurred due to 50% negligence of the first respondent. Accidents due to head on collision between vehicles generally occur if drivers of both the vehicles involved in the accident are either rash or/and negligent, because even if one of them is careful, he can, in normal circumstances, avoid collision between his vehicle and the vehicle coming in his opposite direction. Therefore, I find no grounds to interfere with the finding of the Tribunal that the accident occurred due to 50% negligence of the first respondent and due to 50% negligence of the deceased. The point is answered accordingly.
Point No. 2:
6. The learned Counsel for appellant placing strong reliance on Fakeerappa and Anr. v. Karnataka Cement Pipe Factory , New India Assurance Co. Ltd. v. Kiran Singh 2004 (5) SCALE 153 and Divisional Controller, KSRTC v. Mahadeva Shetty 2003 (5) ALD 119 (SC) : (2003) 7 SCC 197, contended that the compensation claimed by the claimants is reasonable and that the Tribunal was in error in taking the contribution of the deceased to the appellants as Rs. 1,500/- per month, though he was drawing Rs. 3,217-61 ps per month as salary.
7. In Fakeerappa's case (supra) relied on by the appellant, the Apex Court held that there is no rigid rule relating to percentage of deduction and that it depends upon the facts and circumstances of each case and that, usually, Courts deduct l/3rd of the salary towards personal expenditure. Since the deceased met with the accident while going on a scooter, it is clear that he had a scooter and so he must be spending some amount for its maintenance and fuel etc. The deceased was drawing more than Rs. 3,200/- per month as salary. The Tribunal held that the parents of the deceased i.e., respondents 4 and 5 were not depending on his income. They did not prefer an appeal against that finding and so the contribution of the deceased to the appellant can be taken as Rs. 1,800/- per month or Rs. 21,600/- per year. Since the Date of Birth of the deceased shown in Ex.A.l is 10-6-1963 and since the accident occurred on 5-5-1992, it is clear that the deceased was aged around 29 years at the time of his death. Learned Counsel for the appellant relied on Mahadeva Shetty case (supra) in support of his contention that claimants are entitled to compensation as per Schedule II of the Act. I am not able to accept the said contention. The accident in that case occurred after 1994 amendment to the Act, which has no retrospective effect. The accident in this case took place in 1992 prior to introduction of Schedule II into the Act. In Kiran Singh case (supra), the Apex Court held that the multiplier cannot exceed '18'. So, the multiplier which has to be fixed as per the ratio in Bhagawan Das v. Mohd. Arif 1987 (2) ALT 137 is, '17'.
8. As held in Y. Varalakshmi v. M. Nageswara Rao , the appellant is entitled to non-pecuniary damages of Rs. 15,000/-. Loss of consortium of Rs. 10,000/- awarded by the Tribunal is reasonable and so the claimants would have been entitled to Rs. 1,800/- x 12 x 17 : Rs. 3,67,200/- + Rs. 15,000/- + Rs. 10,000/- -Rs.3,92,200/- as compensation.
9. On the ground that the amounts claimed by the claimants under some heads is less than the amounts arrived by it, the Tribunal reduced the compensation under those heads to the extent of the amounts claimed by them, without keeping in view of the fact that compensation claimed can be shifted from one head to other head, but the total amount of compensation awarded cannot be beyond the compensation claimed. Since the accident occurred due to 50% contributory negligence of the deceased, claimants are entitled only to 50% of the compensation arrived at i.e., 50% of Rs. 3,92,200/- i.e., Rs. 1,96,100/-.
10. Since the Tribunal held that respondents 4 and 5 are each entitled to Rs. 5,000/- and since the appellant did not take out notice to them on the ground that they are not necessary parties and since the amount awarded to respondents 4 and 5 cannot be reduced without affording an opportunity to them, appellant is only entitled to Rs. 1,86,100/- i.e., Rs. 1,96,100.00 - Rs. 10,000.00. The point is answered accordingly.
11. In the result, the appeal is allowed in part and the award passed by the Tribunal is modified. An award is passed for Rs. 1,96,100/- in favour of the claimants against the respondents jointly and severally.
Claimants are entitled to interest at 12% per annum on Rs. 67,000/- from the date of petition till the date of payment and appellant is entitled to interest at 9% per annum on the enhanced portion of compensation of Rs. 1,29,000/- from this date till the date of payment with proportionate costs before the Tribunal. Rest of the claim of the claimants is dismissed without costs. Parties are directed to bear their own costs in this appeal.