MACMA/3462/2012 of The M.D., APSRTC., Vs Md. Rukmoddin on 31 December 2013

JUDGMENT

The claim petition was filed by the parents of the deceasedMohd. Azaruddin claiming compensation of Rs.6,00,000/- for thedeath in the motor accident dated 17.03.2007 while he wasproceeding along with a pillion rider, Abdul Hafeez, met with anaccident involving the crime bus bearing No.AP-11-Z-881 ofrespondents 2 and 3 of the claim petition driven by the firstrespondent of the claim petition. The Tribunal, by award dated06.01.2011, by finding that the accident was the result of the rashand negligent of the bus driver with joint liability on therespondents, fixed compensation of Rs.3,34,000/- with interest at7.5% per annum.

2. Impugning said findings of the Tribunal, the appeal is filedby the APSRTC against the claimants with the contentions that theTribunal erred in finding of rash and negligent of the bus driverwithout considering the contributory negligence on the part of thedeceased bike rider and also erred in adopting the multiplier ‘18’though the age of the first claimant, the mother of the deceasedbachelor, as per the claim petition was 40 years and also in takingthe earnings at Rs.3,000/-per month, and hence, to reduce thequantum of compensation and to fix the contributory negligence onthe part of the deceased and to award a reasonable amountagainst the APSRTC.

3. Whereas, it is the contention of the claimants asrespondents 1 and 2 of the appeal that for this Court while sitting in appeal, there is nothing to interfere with the reasoned judgmentsupported by the conclusions of the Tribunal and hence, todismiss the appeal.

4. Heard Smt D. Radhika, the learned standing counsel for theappellant (APSRTC) and Sri K. Venumadhav, learned counsel forrespondents 1 and 2 (claimants). Perused the material on record. The parties hereinafter are referred to as arrayed before theTribunal for the sake of convenience in the appeal.

5. Now the points that arise for consideration in the appeal are:

1. Whether the award of the Tribunal is unjust and thecompensation awarded is excessive and there is contributorynegligence of the deceased bike rider and if so, to whatcompensation the claimants are entitled to?compensation awarded is excessive and there is contributorynegligence of the deceased bike rider and if so, to whatcompensation the claimants are entitled to?

3. To what result?

-POINTS1 and 2

6. The fact that on the fateful day, the deceased along with thepillion rider, Abdul Hafeez, was proceeding on the motorcyclebearing No.AP-15-Q-8787 at SRSP main canal bridge, theaccident occurred involving the crime bus of APSRTC bearingNo.AP-11-Z-881 is not in dispute. Neither the bus driver nor theconductor was examined and no scene of observation report muchless any sketch filed even to say any contributory negligence onthe part of the deceased or to say no negligence of the bus driver.Ex.A1-FIR is against the driver of the bus and Ex.A4-charge sheetalso discloses the same and there is nothing even to say anycontributory negligence on the part of the deceased bike rider,apart from it, there is direct evidence of P.W.2, who witnessed theoccurrence and deposed that the accident was the result of rash and negligent of the bus driver.

and negligent of the bus driver.

7. Before coming to decide, what is just compensation in thefactual matrix of the case, it is apt to state that perfectcompensation is hardly possible and money cannot renew aphysique or frame that has been battered and shattered, norrelieve from a pain suffered as stated by Lord Morris. In Ward v.James[[1]], it was observed by Lord Denning that award ofdamages in personal injury cases is basically a conventionalfigure derived from experience and from awards in comparablecases. Thus, in a case involving loss of limb or its permanentinability or impairment, it is difficult to say with precise certaintyas to what composition would be adequate to sufferer. The reasonis that the loss of a human limb or its permanent impairmentcannot be measured or converted in terms of money. The objectis to mitigate hardship that has been caused to the victim or his orher legal representatives due to sudden demise. Compensationawarded should not be inadequate and neither be unreasonable,excessive nor deficient. There can be no exact uniform rule inmeasuring the value of human life or limb or sufferance and themeasure of damage cannot be arrived at, by precise mathematicalcalculation, but amount recoverable depends on facts andcircumstances of each case. Upjohn LJ in Charle red HouseCredit v. Tolly[[2]]remarked that the assessment of damages hasnever been an exact science and it is essentially practical. LordMorris in Parry v. Cleaver[[3]]observed that to compensate in money forpain and for physical consequences is invariably difficult without some guess work but noother process can be devised than that ofmaking a monitory assessment though it is impossible to equatethe money with the human sufferings or personal deprivations. The Apex Court in R.D.Hattangadi v. Pest Control (India)Private Limited[[4]]at paragraph No.12 held that in its very naturewhatever a Tribunal or a Court is to fix the amount ofcompensation in cases of accident, it involves some guess work,some hypothetical consideration, some amount of sympathy linkedwith the nature of the disability caused. But all the aforesaidelements have to be viewed with objective standard. Thus, in mostof the cases involving Motor Accidents, by looking at the totality ofthe circumstances, an inference may have to be drawn and aguess work has to be made even regarding compensation in caseof death, for loss of dependent and estate to all claimants; care,guidance, love and affection especially of the minor children,consortium to the spouse, expenditure incurred in transport andfunerals etc., and in case of injured from the nature of injuries,pain and sufferance, loss of earnings particularly for any disabilityand also probable expenditure that has to be incurred from natureof injuries sustained and nature of treatment required.

8. From the above legal position with reference to the factualmatrix of the case on hand, the Tribunal in its finding afterelaborate discussion has came to the conclusion that the accidentis the out come of the rash and negligent driving of the driver ofRTC bus bearing No.AP-11-Z-881 of the appellant.

9. The contention of the appellant-APSRTC that in the cross-examination of P.W.2, he deposed that there is a heavy traffic at

the place of occurrence and thereby the things itself speak thatthere is no possibility for the driver to proceed rashly andnegligently in causing the accident, but for, if at all from thenegligence of the deceased, if not full, contributory negligence onhis part also, is un sustainable in the absence of evidence. Thereis no any presumption that because of the crowded place, the busdriver did not proceed in a rash and negligent manner much less tobelie said evidence of P.W.2 on that ground. When the othermaterial also clearly points out the rash and negligent driving onthe part of the bus driver that caused the accident, there is alsonothing including from P.W.2’s cross-examination to say anycontributory negligence on the part of the deceased, as such, forthis Court while sitting in appeal, there is nothing to interfere withsaid reasoned finding of the Tribunal, so also, regarding the rate ofinterest at 7.5% per annum.

10. Now, coming to the quantum of compensation, the deceasedwas aged about 19 years at the time of accident. The secondclaimant is the mother of the deceased, whose age was shown at40 years, and there is no dispute regarding the age of the motherincluding in cross-examination of P.W.1, the father of thedeceased. The Tribunal there from erred in taking or adopting themultiplier at ‘18’ by considering the age of the deceased instead oftaking the age of the mother. As per the settled expression inSarla Verma v. Delhi Transport Corporation[[5]],the multiplierthat is applicable for the persons aged between 36 to 40 is ‘15’.The monthly income of the deceased estimated by the Tribunalwas at Rs.3,000/-. Though the contention of the claimants as respondents 1 and 2 to the appeal is that Exs.A2 and A7 speak theavocation of the deceased and also his earnings and the Tribunalerred in taking only Rs.3,000/-per month, there is no proofregarding the said earnings of the deceased, and mere filing andexhibiting Ex.A7 is not sufficient, as rightly concluded by theTribunal at page 11, paragraph 13 of the award. However, the factremains that even a fixed wage earner not only salaried employeebut also skilled worker, the prospective earning capacity shall betaken into consideration. Here, if that is taken into considerationeven from the age of the mother about 40 years, the increase mustbe at 30%, which comes to Rs.3,900/-per month, if half of theamount is deducted for personal expenses of the deceasedbachelor from the parents-appellants, it comes to Rs.1950/-x12x15=3,51,000/- and for funeral expenses of the deceased,6]Rs.25,000/- is awarded vide Rajesh v. Ranabir Singh[[]and forloss of estate, Rs.10,000/- is awarded vide Sarla Verma’s caseand Rajesh’s case supra, it comes to Rs.3,86,000/- and what theTribunal awarded of Rs.3,34,000/- is thereby no way on high sidebut for to say a low amount and though it is the just compensation,the claimants are to be awarded this Court while sitting in appealhas no power with no cross-objections filed by the claimants muchless any independent appeal, since there is a bar on the power ofthe Court even to exercise any power under Order XLI, Rule 33C.P.C to enhance the quantum from what is laid down in RanjanPrakash V. Divisional Manager[[7]]that in the appeal filed by thedriver or owner or insurer, in the absence of cross-objections bythe claimants they have no right and Court also has no power to enhance the compensation, but for to support the quantum on oneground or the other.

11. In the result, the appeal is dismissed with no costs. Theapplication for vacating the stay is thereby closed for no ordersare necessary as the appeal itself is disposed of.

_________________________

Dr. B. SIVA SANKARA RAO, J

31[st] December, 2013

sj

[1]1965(1) A11. E.R-5631965(1) A11. E.R-563

[2]1963(2) All.E.R-4321963(2) All.E.R-432

[3]1969(1)A11.E.R –5551969(1)A11.E.R –555

[4]1995 ACJ 366(SC)-CA Nos.1799 &1800 of 1989 with SLP(Civil) 4586 of 19891995 ACJ 366(SC)-CA Nos.1799 &1800 of 1989 with SLP(Civil) 4586 of 1989

[5]2009 ACJ 12982009 ACJ 1298

[6]2013(4)ALT 35(SC)2013(4)ALT 35(SC)

[7]2011(8) SCALE 2402011(8) SCALE 240