Andhra HC (Pre-Telangana)
Shamsunder Tiwari @ Shamlal Tiwari And ... vs Narsimha Reddy And Anr. on 7 December, 2006
Equivalent citations: 2008ACJ27, 2007(3)ALD731, 2007(4)ALT221, 2007 A I H C 2310, (2008) 1 ACJ 27, (2007) 3 ANDHLD 731, (2008) 2 ACC 290, (2007) 4 ANDH LT 221
JUDGMENT C.Y. Somayajulu, J.
1. Appellants filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (the Act) seeking compensation of Rs. 2,00,000/- for the death of their unmarried son Ramesh Kumar Tiwari (the deceased) said to be aged 22 years earning about Rs. 4,000/- p.m. as a cashier in Geetha Trading Company, alleging that when the deceased along with his friend was proceeding on a scooter, a lorry belonging to the first respondent and insured with the second respondent being driven in a rash and negligent manner came in the opposite direction of the scooter and dashed the scooter resulting in the death of the deceased.
2. First respondent chose to remain ex parte.
3. Second respondent filed its counter inter alia putting the appellants to proof of the averments in the petition.
4. The claim petition filed by the appellants and another claim petition filed by the legal representatives of another victim were clubbed and common evidence was recorded. In support of the case of the appellants, first appellant was examined as P.W.2 and the first claimant in another claim petition filed by the legal representative of the other victim was examined as P.W.1 and another witness was examined as P.W.3 and Exs.A.1 to A.8 were marked on behalf of the claimants. No evidence either oral or documentary was adduced on behalf of the second respondent.
5. The Tribunal held that the accident resulting in the death of two victims occurred due to the rash and negligent driving of the lorry of the first respondent and awarded Rs. 1,00,000/- as compensation to the claimants. Dissatisfied with the compensation awarded to them, the claimants preferred this appeal.
6. Since this appeal is by the claimants seeking higher compensation than that was awarded and since the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of the lorry of the first respondent has become final, the only point for consideration is to what compensation are the appellants entitled to.
7. The contention of the learned Counsel for appellants is that inasmuch as the deceased was unmarried and since the evidence of P.W.2, the father of the deceased, that the deceased was earning Rs. 4,000/- p.m. stands unrebutted the Tribunal was in error in not awarding adequate compensation. Relying on Nidamanuri Ramana Kumari v. Erukula Sesha Rao , he contended that the contribution of the deceased should be taken at least at Rs. 10,000/- p.a. and in view of Schedule II of the Act, the appropriate multiplier as mentioned in Schedule II of the Act has to be adopted and if it is so done, the appellants would be entitled to the compensation claimed.
8. The contention of the learned Counsel for second respondent is that since the apex Court in Bijoy Kumar Dugar v. Bidyadhar Dutt , held that dependency has to be worked out on the basis of the earnings of the deceased at the time of the accident and that the claimants have to prove that the deceased could have earned more amount from time to time or had special merits or qualifications or opportunity which would have improved his income in future, and as it was also observed that in case of unmarried victims, the dependency has to be calculated on the basis that he would get married and will have to raise a family and the monthly allowances he would be giving to his parents would be cut down, the compensation arrived at by the Tribunal cannot be said to be erroneous.
9. Since appellants are the parents of unmarried deceased, it is not the age of the deceased, but it is the age of the mother of the deceased i.e. second appellant, is relevant for fixing the appropriate multiplier. Appellants did not adduce any reliable evidence to show their ages. Unfortunately, the Tribunal without mentioning as to how it has arrived at the figure of Rs. 1,00,000/-granted a lump sum compensation of Rs. 1,00,000/- to the appellants. So, the basis on which that figure was fixed by the Tribunal is not known. The Tribunals while awarding compensation should state under what head it is awarding what amount of compensation to the claimants so that the appellate forum can find out the entitlement or otherwise of the claimants for the amount awarded by the Tribunal.
10. The evidence of P.W.2 is that the deceased was 22 years by the time of his death and was not married and was a cashier earning Rs. 4,000/- p.m. and so, the appellants are entitled to Rs. 2,00,000/-because they were dependents on him. During cross-examination, he admitted that he did not produce any certificate to show the income of the deceased and denied the suggestion that the deceased was not earning Rs. 4,000/- p.m.
11. The evidence of P.Ws.1 and 3 is not relevant for deciding the point.
12. Nidamanuri Ramana Kumari's case (supra), relied on by the learned Counsel for the appellants is a case relating to the death of an unmarried girl. The contribution made by her parents to the claimants was taken as Rs. 10,000/- per annum. In that case, the decision of the apex Court in Bijoy Kumar Dugar's case (supra), as to how the compensation in respect of unmarried have to be arrived at i.e. dependency has to be calculated on the basis that the deceased would get married and will have a family and so the monthly allowances to their parents would be cut down was not taken into consideration. So, I do not wish to take that decision into consideration and would follow the principles laid down by the apex Court in Bijoy Kumar Dugar's case (supra).
13. P.W.2 is silent as to the number of children he has. There is nothing on record to show that the deceased was the only son of the claimants. Why the first appellant (P.W.2) who is said to be aged 50 years has shown his occupation as nil is not known. While giving evidence as P.W.2 he did not state why he is not taking up any work to earn his livelihood. Probably to make it appear that he and his wife were depending on the income of the deceased, P.W.2 might have shown his occupation as Nil.
14. As per Section 166 of the Act, the legal representatives of a deceased victim only would be entitled to compensation. Mother being the legal heir to the estate of a deceased son, as per Hindu Succession Act, would only be his heir. So second appellant only would be entitled to make a claim for compensation. It is well known that wife has to be maintained by the husband and during the lifetime of an able bodied father, son is not bound to maintain his mother. So, the primary duty to maintain the second appellant is on the first appellant. So first appellant cannot, on the basis that the deceased was earning, refuse to maintain and take care of the second appellant.
15. Be that as it may, even assuming that the deceased was a hawker and was contributing some amount to the appellants for their maintenance, as observed by the apex Court, the contribution that was being made by the deceased to the appellants would be reduced in due course, after he gets married and begets children. So the average contribution of the deceased to the appellants can be taken as around Rs. 800/- per month or Rs. 10,000/- per annum.
16. Keeping in view the age of the deceased, the age of the second appellant can be taken as around 47 years. Learned Counsel for the second respondent relying on Tamil Nadu State Transport Corporation v. S. Rajapriya , contended that since the Apex Court adopted the multiplier of 12 for a person of 38 years, the multiplier for a person aged 47 years should be far less. Since the Apex Court in Uttar Pradesh State Road Transport Corporation v. Krishna Bala , held that the multiplier in Schedule II is only a guide and is not invariable rule, the multiplier can be taken as '12' and so the pecuniary damages payable to the appellants due to the death of the deceased would come to Rs. 1,20,000/- (Rs. 10,000 x 12). As per Schedule II of the Act appellants are entitled to funeral expenses of Rs. 2,000/- and loss of estate of Rs. 2,500/-also.
17. Thus, the appellants are entitled to Rs. 1,20,000/- + Rs. 2,000/- + Rs. 2,500/- : Rs. 1,24,500/- as compensation for the death of the deceased.
18. The contention of the learned Counsel for second respondent is that inasmuch as the driver of the offending vehicle was not having a valid driving licence, the Tribunal was in error in making the second respondent also liable for payment of compensation. It is his contention that the second respondent filed an appeal questioning the award with a delay condonation petition and the appeal is not yet numbered and so, it is not listed with this appeal. The apex Court in National Insurance Co. Ltd. v. Swaran Singh , clearly held that breach of policy condition i.e., like driver not having a valid driving licence has to be proved by the insurer for avoiding its liability. So in order to avoid its liability the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of vehicle by duly licensed driver etc. As there is no such evidence in this case, the second respondent cannot be exempted from liability. Second respondent by establishing that the first respondent was guilty of negligence, and had knowingly entrusted the vehicle to a person who is not having a valid licence, can recover the amount paid by it to the claimants from the owner in separate proceedings, but in this appeal no relief can be given to the second respondent.
19. In the result, the appeal is allowed in part and an award is passed for Rs. 1,24,500/- with interest at 12% p.a on Rs. 1,00,000/- from the date of petition till the date of deposit as awarded by the Tribunal and with interest at 9% p.a., on Rs. 24,500/-, awarded in this Court, from this date till the date of deposit into the Court with proportionate costs in the Tribunal. Rest of the claim of appellants is dismissed without costs. Parties are directed to bear their own costs in this appeal.