Andhra HC (Pre-Telangana)
The Managing Director, A.P.S.R.T.C. vs Smt. V. Jayalakshmi, W/O. Nakulan And ... on 29 September, 2004
Equivalent citations: 2006ACJ2620, 2005(1)ALD574
JUDGMENT C.Y. Somayajulu, J.
1. Respondents 1 to 4, who are the widow and children of Nakulan (the deceased), (herein after called the claimants) filed a claim petition seeking compensation of Rs.15,00,000/- from the appellant alleging that when the deceased was proceeding on his scooter, a bus belonging to the appellant being driven in a rash and negligent manner came in his opposite direction and dashed against the scooter of the deceased resulting in injuries and death. Appellant filed a counter contending that the deceased due to his own negligence while proceeding in the same direction in which the bus was going applied sudden brake and lost control and had fallen down and received injuries and that there was no collision between its bus and the scooter of the deceased and so it is not liable to pay any compensation. In support of their case, claimants examined four witnesses as P.Ws.1 to 4 and marked Exs.A.1 to A.12 and Exs.X.1 and X.2. In support of its case, appellant examined three witnesses as R.Ws.1 to 3 and marked Exs.B.1 to B.3. The Tribunal after having held that the accident occurred due to the rash and negligent driving of the 5th respondent while driving the bus belonging to the appellant, awarded Rs.8,88,600/- as compensation to the claimants. Hence, this appeal by the owner of the bus that allegedly caused the accident.
2. The points for consideration are -
1) Did the accident involving the deceased occur due to the rash and negligent driving of R.W.2 i.e. 5th respondent?
2) To what compensation, if any, are the claimants entitled to?
Point No.1:
3. Initially the case of the claimants was that the accident took place when the bus and the scooter of the deceased were proceeding in the same direction at the time of the accident. After the claimants examined two witnesses i.e. P.Ws.1 and 2 and when the case stood posted for their further evidence, claimants filed I.A.No.690 of 1994 seeking leave of the Tribunal to amend the claim petition that the bus came in the opposite direction of the scooter of the deceased and dashed the scooter of the deceased. In spite of the appellant opposing the said petition, the Tribunal allowed the petition.
4. P.W.1, first respondent, not being a witness to the accident, did not state as to how actually the accident took place. P.W.2, the brother of the deceased also was not a witness to the accident but he gave the F.I.R. in connection with the accident, which is marked as Ex.A.12 during his re-examination. Ex.A.12 shows that the case was booked under Section 338 I.P.C. The altered F.I.R., altering the Section of law to Section 304-A I.P.C. was marked as Ex.A.8 during the chief-examination of P.W.1. According to P.W.2, he gave the report on the basis of the information gathered by him. Since the persons who gave the information to P.W.2 are not examined, the evidence of P.W.2, which is in the nature of hearsay, need not be taken into consideration for deciding this issue. Since P.W.4 also was not a witness to the accident, his evidence is not relevant to decide this point.
5. The evidence of P.W.3, an employee in a medical shop at Geet Sangeet Theaters, examined as an eye witness to the accident, is that when he was going to his employer's house near fishing harbour via K.G.H. down road and reached costal battery, a bus coming from beach road and going towards the K.G. Hospital, while taking a right turn at a high speed dashed against a scooterist going in front of him on the left side of the road, resulting in a head injury to the scooterist and that he, the bus driver and another person shifted the injured scooterist to K.G.H. for treatment and that he later came to know that the scooterist died. During cross examination he stated that he was proceeding to his employer's house by foot and that the scooterist was ahead of him by about 3 or 4 feet and that police only noted his address but did not record his statement and that he did not give evidence in any criminal Court and that he does not know the details of the deceased or his relatives or their addresses and that he did not give a report to police about the accident, and that there are houses near the scene of accident on the left side of the road and the office of the costal battery is to the right side of the road and that there is a traffic island there and that the bus has to take the turning at the traffic island, and denied the suggestion that he was not a witness to the accident. Here it should be stated that the deposition of the witness reading "It is true that the RTC bus came and dashed the front portion of the scooter and the front portion of the scooter damaged" might be an error or a mistaken recording of the evidence because when the specific case of the appellant is that the bus and scooter were proceeding in the same direction and that its bus did not cause the accident and that there was not even a contact between the bus and the scooter, and when the amended petition taking the plea that the accident took place when the vehicle was proceeding in opposite direction was opposed, and the suggestion put to the witness is that he was not a witness to the accident, the cross examining counsel could not have suggested that the bus dashed the front portion of the scooter of the deceased.
6. P.W.3 is a chance witness, as he is an employee in a medical shop at Geet Sangeet Theaters, and since he is said to have been present at the scene of accident as he was going to his employer's house, by foot. Had he not been going to his employer's house there was no scope for him to be present at the scene of accident at the time of accident. How and from whom the claimants came to know that P.W.3 was a witness to the accident, for them to call him as a witness to the accident, when according to P.W.3, the deceased and his relatives or their addresses are not known to him, is not explained. Police of which police station noted the address of P.W.3, whose statement admittedly was not recorded by police is not known. So, possibility of planting P.W.3 as an eye witness cannot be ruled out. Even assuming that P.W.3 was a witness to the accident, his evidence that the accident took place due to the negligence of the bus driver cannot be true, because his evidence shows that the deceased was 'going down' from K.G.H. to beach road, at whose junction there is a traffic island, and the bus was taking a right turn to the K.G.H. road. Since the deceased was 'going down', and since the bus to go to K.G.H. from beach road, has to 'go up' i.e. negotiate an up gradient and a traffic island, it must have been on the correct side of the road more so because it was elicited during the cross examination of R.W.3 (the conductor of the bus) that there is a road divider at the scene of accident. Since it is not the case of the claimants that the bus came to the wrong side of the road, unless the deceased was on the wrong side of the road i.e. right hand side of the road from K.G.H. to R.K. beach, there cannot be a collision between the bus and scooter when they were proceeding in opposite direction. P.W.2, during cross examination, stated that he found scratches on the left side cover of the scooter and that the left side portion of the handle bar of the scooter of the deceased got bended, which is in consonance with Ex.A
9. If the evidence of P.W.3 that the bus while taking a right turn dashed the scooter of the deceased when he was on the left side of the road is true the scooter must have got damaged on the right side, but not left side. Since there is a road divider and traffic island at the scene of accident and since the damage to the scooter is on the left side but not the right side of the scooter, if the evidence of P.W.3 is accepted it means that the deceased was on the wrong side of the road at the time of accident, when the bus was negotiating a right turn. Thus, from the evidence of P.W.3 it cannot be said that the accident took place due to the negligence or rash driving of R.W.2.
7. Ex.A.9, Motor Vehicles Inspector's report, shows that there was no damage to the bus and that the left side side cover, left side front 'cowl' of the scooter were damaged and that brakes of both vehicles did not fail and that the accident was not due to any mechanical defect in any vehicles involved in the accident. If a bus proceeding at high speed dashes against a scooter, the part of the body of the bus which came into contact with the body of the scooter would at least get scratched, if not dented, and some particles of paint of the bus would get attached or transferred to that part of the scooter which came into contact with the bus. There is no such evidence in the case.
8. The evidence of R.W.1 is that she went to a hospital near R.K. beach to give a lunch box to her relative in a hospital there and was returning to her house along with her children in the bus and was sitting in a seat behind the driver's seat and when that bus was taking a turn towards K.G.H., a scooterist who was proceeding in the same direction applied sudden brake and had fallen down and that there was no collision between the scooter and the bus, and that the driver of the bus took the scooterist to K.G.H. in an auto and that the R.T.C. officials recorded her Ex.B.2 statement and that she and her children were sent in another bus. During cross examination she stated that she did not purchase tickets afresh after she boarded another bus and denied the suggestion that the accident took place when the bus and scooter were proceeding in opposite directions.
9. It is true, there is a discrepancy relating to recording of Ex.B.2 statement of R.W.1, in the evidence of R.W.1 and R.W.3. But, that cannot be a ground for disbelieving the evidence of R.W.1 that she was travelling in the bus. The Tribunal ought not to have admitted Ex.B.2, which is the statement of R.W.1, in evidence, because it can only be used for contradiction as per Section 145 Evidence Act, but not to support the case of appellant. Since R.W.1 was made to board another bus for no fault of her, she need not purchase a fresh ticket. Since there were only a few passengers in the bus, the address of R.W.1 might have been noted and must have been called as a witness. Even assuming that Ex.B.1 tickets are not the tickets purchased by R.W.1, since nothing useful was elicited during her cross examination to show that she was not travelling in the bus, her evidence that she was travelling in the bus cannot be disbelieved.
10. The evidence of R.W.2, the driver of the bus i.e. 5th respondent, is that when he was taking a turn to the right on to the K.G.H. road from R.K. beach road near the costal battery, a scooterist coming from behind his bus at a high speed in a drunken condition suddenly applied brake and had fallen down and received injuries and so he shifted that scooterist to K.G.H. and that there was no collision between the bus and scooter. During cross examination, he stated that when he was showing signal and was about to take a turn and even before he actually took the turn the incident took place. This evidence of R.W.2 is in consonance with the averments in para-4 of the counter filed on behalf of the appellant.
11. R.W.3 is the conductor of the bus being driven by R.W.2. His evidence is also the same as R.Ws.1 and 2.
12. Though in para-4 of the counter of the appellant it is specifically alleged that-
"he (R.W.2) also stated that when he got down the bus to help the scooterist he had noticed alcohol smell from the mouth of the scooterist. Since nobody was there on the road to assist him, he had taken him to K.G.H. on humanitarian grounds".
Claimants did not take steps for production of the record of the deceased maintained in K.G.H. which would have contained notings on his condition at the time of his admission into the hospital i.e. whether he was smelling alcohol or not. So, an inference has to be drawn against the claimants for not taking steps for production of the record relating to the deceased from K.G.H.
13. Another important fact in this case is absence of evidence to show that police either arrested or laid a charge sheet against R.W.2 in connection with the accident involving the deceased. Neither the sketch nor the panchanama of scene of accident is produced, which also is a circumstance against the claimants. In the above circumstances, the evidence of R.W.2 that when he was taking a right turn the deceased got confused and applied sudden brake appears to be more probable. Most probably when the deceased was intending to over take the bus, R.W.2 must have taken a right turn, probably without showing hand signal, and so the deceased might have applied a sudden brake and being unable to control the vehicle must have fallen down to the left. Here it is relevant to mention that R.W.1 during cross examination stated that she did not observe if the driver gave a hand signal while taking a turn.
14. Since there was no collision between the two vehicles, police might not have charge sheeted R.W.2 in connection with the accident. But, from the fact that R.W.2 is not charge sheeted, only, it cannot be said that R.W.2 was not responsible for the accident resulting in death of the deceased. Since R.W.2 taking a sudden right turn, without minding the traffic on the rear, appears to be the cause for the deceased applying sudden brake, and since the deceased also must have been proceeding on the scooter in a rash and negligent manner, for his falling down on application of a sudden brake, I hold that the accident involving the deceased took place due to 75% negligence of the deceased and due to 25% negligence of R.W.2. The point is answered accordingly.
Point No.2:
15. Ex.X.1 salary slip of the deceased for the month of August, 1992, produced by P.W.4 shows that the monthly salary of the deceased was Rs.9,469/-. Ex.A.5 salary certificate of the deceased shows that basic salary of the deceased was Rs.5,300/- besides Dearness Allowance of Rs.2,086/- and other allowances. Exs.A.1 and A.2 income tax receipts show that the deceased was earning a total income of more than Rs.2,00,000/- per annum and was paying income tax of about more than Rs.70,000/-. Since the gross income of the deceased was around Rs.2 lakhs per year, keeping in view the income tax being paid by the deceased and the savings he had to make for reducing his tax liability, his contribution to respondents per year can be taken as around Rs.80,000/-.
16. Since Ex.A.5 shows that the date of birth of the deceased was 27.03.1951 and since the deceased died on 27.09.1992 it is clear that the deceased was in his 42nd year by the date of his death. Since the accident took place prior to 1994, when the second schedule to the Motor Vehicles Act, 1988, was not in existence, the multiplier has to be fixed as per Bhagawan Das v. Mohd. Arif1 but not by taking into consideration the second schedule of the Motor Vehicles Act, 1988. So, the relevant multiplier can be taken as '12'. So, respondents would have been entitled to Rs.80,000/- X 12 = Rs.9,60,000/- towards pecuniary damages.
17. In Y. Varalakshmi v. M. Nageswara Rao2 it is held that in every case of a fatal accident a minimum compensation of Rs.15,000/- has to be awarded towards non-pecuniary damages. Keeping in view the age and earnings of the deceased, the non-pecuniary damages can be fixed at Rs.1,00,000/-.
18. Since first respondent lost her husband she is entitled to loss of consortium of Rs.40,000/-.
19. Thus, respondents 1 to 4 would have been entitled to Rs.9,60,000/- + Rs.1,00,000/- + Rs.40,000/- = Rs.11,00,000/-. But since on point No.1 I held that the deceased died due to 75% negligence of his own, claimants are entitled only to 25% of Rs.11,00,000/- i.e. Rs.2,75,000/- and so, I hold that the claimants are entitled to Rs.2,75,000/- as compensation from the appellant. The point is answered accordingly.
20. In the result, the appeal is allowed in part. Award of the Tribunal is modified and an award is passed for Rs.2,75,000/- with interest at 9% p.a. from the date of the petition till the date of deposit into Court in favour of respondents 1 to 4 against the appellant with proportionate costs before the Tribunal. Rest of the claim of the appellant is dismissed without costs. Parties are directed to bear their own costs in this appeal. From out of the said amount, respondents 2 to 4 are each entitled to Rs.62,500/- and interest thereon and 1st respondent is entitled to Rs.87,500/- and interest thereon.