Julekha Bee and Others vs O. Bali Reddy and Another

This appeal is filed by the claimants u/s 173 of the Motor Vehicles Act to set aside the award passed by the Tribunal in M.V.O.P. No. 22 of 1990, dated 25-2-1992 and to award compensation as claimed for by them. A few facts which are necessary to dispose of this appeal are as follows:-

The deceased was a Class IV employee working in the Nandyal Branch of the State Bank of India drawing roughly about Rs. 3,000/- per month. On 30-4-1989 at about 7.30 p.m. the deceased and his friend were going on a Moped and the said vehicle was driven by the deceased. At a place near Bommalasatram, the tractor bearing registration No. AAQ 1178 came from the opposite direction and dashed against the moped. As a result of the impact, the deceased fell down from the moped and sustained serious injuries to which he succumbed while undergoing treatment in the Government General Hospital, Kurnool. At the time of his death, he was aged 39 years. The claimants filed an application under Sections 92 and 110A of the Motor Vehicles Act claiming a total compensation of Rs. 6 lakhs. The break-up of the total compensation claimed by the petitioners is as follows:

Loss of earnings upto the date of application: Rs. 15,000/- Funeral expenses: Rs. 6,000/- Compensation for the damage caused to the TVS-50 Moped Rs. 3,000/- Compensation for pain and suffering etc. Rs. 30,000/- Compensation for loss of consortium Rs. 10,000/- Loss of earnings: Rs,5,36,000/-

This application was opposed by respondents 1 and 2. They denied the nature of accident, namely, the negligence on the part of the tractor driver. To support their respective claims, the petitioners examined P.Ws. 1 to 4 and marked Exs. A-l to A-7. On behalf of the respondents, R. Ws. 1 and 2 were examined. R.W.I is the Tractor driver and R.W.2 is the bullock cart driver. They also marked Exs.B-1 and B-2. Ex.B-1 is the copy of Policy and B-2 is the deposition of P.W.3 in C.C. No. 94/89 on the file of the Addl. District Munsiff Court, Nandyal. On the basis of the pleadings, the trial Court framed the following issues:

Whether the driver of the tractor AAQ 1175 drove the Tractor on 30-4-1989 at about 7.00 p.m. near Tobacco Factory in between Bommalasatram and Nandyal rashly and negligently at a high speed and caused the accident resulting in the death of the deceased?

Whether the petitioners are entitled to claim compensation and if so, to what amount and against whom?

Whether the vehicle is insured with the 2nd respondent as on the date of the accident?

To what relief?

The Tribunal after appreciating the entire material evidence on record found that in case negligence had been proved the claimants would have been entitled for a compensation of Rs. 2,16,000/-; that the first claimant would be entitled to a further sum of Rs. 10,000/- for loss of consortium and Rs. 15,000/-can be added to the above amount of compensation towards pecuniary damages payable to the claimants for loss of expectation of life of the deceased and for pain and suffering. Thus, he held that they would be entitled to a total compensation of Rs. 2,41,000/- with interest at 12% p.a. if they had proved that the accident was caused due to the rash and negligent driving of the tractor driver. But as the claimants miserably failed to prove that the accident was caused due to the rash and negligent driving by the driver of the tractor, he held that the claimants are entitled to only a sum of Rs. 25,000/- with interest at 12% per annum. Aggrieved by the said award, this appeal is preferred by the claimants.

It is contended by Sri T. Niranjan Reddy, learned counsel for the claimants that the Tribunal should not have rejected the evidence of P.W.3 who is a de facto complainant and an independent eye witness. His evidence should not have been rejected merely because there are some contradictions in the evidence which he had given in the criminal Court and in the Tribunal. No adverse inference should have been drawn becauseP.W.3 did not choose to appear for cross-examination. The Tribunal should have noticed that either the evidence given or order passed by the criminal Court will not have any bearing in respect of the proceedings initiated u/s 110- A of the M.V. Act.

The learned Standing Counsel for the Insurance Company on the other hand contended that the findings given and reasoning adopted to hold that the claimants are entitled to only a sum of Rs. 25,000/- is quite just and proper. In the absence of negligence on tine part of the tractor driver, the claimants are not entitled to any compensation except Rs. 25,000/- under ''No Fault Liability'', which amount the Tribunal had rightly granted. To support his contention that the claimants are not entitled for the compensation, he placed reliance on a decision of the Supreme Court in Minu B. Mehta and Another Vs. Balkrishna Ramchandra Nayan and Another, . That was a case where the accident occurred due to the mechanical defect of the truck. Dealing with that case, their Lordships held that a person is not liable unless he contravenes any of the duties imposed on him by common law or the statute. In the case of a motor accident the owner is only liable for negligence and on proof of vicarious liability for tine acts of his servant. Proof of negligence is therefore necessary before the owner or the insurance company could be held to be liable for the payment of compensation in a motor accident claim case. He, therefore, contends that negligence on part of the tractor driver is not proved and therefore the petitioners (sic. Respondents) are not liable for compensation.

We had perused tine evidence and the judgment of tine Tribunal. The Tribunal committed a mistake in coming to a conclusion that the claimants failed to prove that the accident occurred due to the negligence on the part of the tractor driver. In order to prove the negligence on tine part of the tractor driver, they should have made available P.W. 3 for cross-examination. The Tribunal should have noticed that the claimants are not supposed to make out a case for the respondents. Adverse inference should not have been drawn because of non-appearance of P.W.3. The evidence of P.W.3 and the evidence of the other witnesses if considered properly, the finding would have been that the negligence was contributory in nature. Hence, the finding of the Tribunal with regard to negligence is incorrect. When it is said that the accident was due to the negligence of both parties, it is needless to say that the claimants are entitled for compensation. Regarding notional compensation arrived at by the Tribunal, though its approach is correct, but the multiplier applied and taking the loss of dependency, are incorrect. It is not in dispute that the deceased was 39 years at the time of his death. But as per Ex.A-7, his age was 42 years. Taking the age of the deceased to be between 39 and 42, the proper multiplier would be 12. The deceased was drawing roughly about Rs. 3,000/-. Under normal circumstances, if no accident had occurred, he would have got promotion and would have got higher salary. Hence, on an average, his earnings can be taken as Rs. 4,000/- per month. This view of ours is supported by a decision of the Supreme Court in P.C. Kakar Vs. Commandant, Military Hospital, Trimalgiri and Others, , wherein their Lordships held as follows:

"In the present case the deceased was 39 years of age. His income was Rs. 1032/- per month. Ofcourse, the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. While the chance of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of the claimant whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed many factors have to be put in to the scales to evaluate the contingencies of the future. All contingencies of the future need not necessarily be baneful. The deceased person in this case had a more or less stable job. It will not be inappropriate to take a reasonably liberal view of the prospects of the future and in estimating the gross income it will be unreasonable to estimate the loss of dependency on the present actual income of Rs. 1032/- per month. We think having regard to the prospects of advancement in the future career, respecting which there is evidence on record, we will not be in error in making a higher estimate of monthly income of Rs. 2,000/-asthegross income. From this has to be deducted his personal living expenses, the quantum of which again depends on various factors such as whether the style of living spartan of bohemian. In the absence of evidence it is not unusual to deduct one-third of the gross income towards the personal living expenses and treat the balance as the amount likely to have been spent on the members of the family and the dependents. This loss of dependency should capitalize with the appropriate multiplier. In the present case we can take about Rs. 1,400/- per month or Rs. 17,000/- per year as the loss of dependency and if capitalized on a multiplier of 12, which is appropriate to the age of the deceased, the compensation would work out to Rs. 17,000 x 12 = 2,04,000/- to which is added the usual award for loss of consortium and loss of the estate each in a conventional sum of Rs. 15,000/-"

It is stated that the deceased was living a simple life and had no bad habits. He was hardly spending a sum of Rs. 300/- towards his personal expenses. Whatever it is, the fact remains that out of the gross income arrived at, a portion has to be deducted towards his personal expenses. Taking into consideration his style of living and also the number of dependents, we feel that out of the gross salary of Rs. 4,000/-, we have to deduct Rs. 1,000/- towards his personal expenses and the balance of Rs. 3,000/- has to be multiplied by 12 and per annum it comes to Rs. 36,000/-, the amount which he would have been contributing towards his family. As the age of the deceased was between 39 and 42 it would be appropriate to take the multiplier of 12. Hence, the total loss of dependency would come to Rs. 4,32,000/-. However, a further sum of Rs. 15,000/- towards loss of consortium and Rs. 15,000/- for loss of estate can be granted. Hence, the total compensation now awarded comes to Rs. 4,62,000/-. As there is contributory negligence on both sides, the claimants are entitled to only 50% of the compensation now granted by us. Hence, the claimants are entitled to a total compensation of Rs. 2,31,000/- plus interest at the rate of 12% from the date of the petition upto the date of realisation. Out of this amount, 40% would be given to the first claimant and the balance including interest accrued shall be apportioned equally in the name of claimants 2 to 6 and the same shall be deposited in any nationalised Bank till they (claimant 2 to 6) attain majority. In case of those claimants who have attained majority, there shall be a direction to keep their shares in fixed deposit for at least two years. In case of other minor-claimants the deposit now ordered to be made shall be renewed for every three years till they attain majority.

It is made clear that the compensation, if any, was already paid to the claimants, the same shall be deducted from out of the compensation now ordered and the balance shall be paid as indicated above.

The appeal is accordingly allowed. No costs.