MACMA/2512/2008 of The APSRTC Vs Cheede Atchayamma on 31 December 2014

COMMON JUDGMENT:

Aggrieved by the Order, dated 18.02.2008, passed by theChairman, Motor Accidents Claims Tribunal – cum – District andSessions Judge, (FAC) I Additional District Juddge, West Godavari,Eluru, (for short, ‘the Tribunal’), in O.P. No.107 of 2005 maintained bythe claimants under Section 166 of the Motor Vehicles Act, 1988 (forshort, ‘the Act’) for the death of Cheede Subba Rao (hereinafterreferred to as ‘the deceased’) in a motor accident that occurred on15.10.2004, due to negligence act of the 1[st] respondent – AndhraPradesh State Eastern Power Distribution Company Limited,Visakhapatnam (for short, ‘the APSEPDCL’) and the 3[rd] respondent,who is the driver of the 2[nd] respondent - Andhra Pradesh State RoadTransport Corporation (for short, ‘the APSRTC) bus bearing No.AP 10Z 4320, the bus came in contact with the Stem of Thumma Plant, dueto which the electrical live wire head line fell on the bus, as a result ofwhich the deceased was electrocuted and sustained severe burninjuries and died on 18.10.2004 while undergoing treatment atKakinada, when the claimants claimed compensation ofRs.08,02,000/-, since the Tribunal awarded Rs.7,16,944/- against therespondents 1 to 3 (supra) jointly and severally, the respondents 1 and2 to the claim petition filed these two appeals respectively against theirliability. The respective contentions in the grounds of appeals are that:

a)MACMA (SR) No.43042 of 2008 maintained by theChairman and Managing Director, APSEPDCL,Visakhapatnam, with the contentions that the Tribunalgravely erred in fixing joint liability, which is contrary to law,Chairman and Managing Director, APSEPDCL,Visakhapatnam, with the contentions that the Tribunalgravely erred in fixing joint liability, which is contrary to law, despite no negligence on the part of the appellant hereininstead of dismissing the claim against the appellant; thatthe Tribunal should have seen that it is due to heavy rainand whirlwind on 15.11.2004 one big tree had fallen acrossthe road obstruct the passage of power line available on theside of the canal touched the luggage of the bus and therewas no negligence of APSEPDCL in maintaining the livewires; that the FIR contents also establishes the same; thatthe tribunal should seen that the burden is on the claimantsto prove negligence without which no compensation theyare entitled. Hence, to set aside the award fixing jointliability and exonerate the appellant APSEPDCL.

Arguments

b)MACMA No.2512 of 2008 maintained by the APSRTCrepresented by its General Manager with the contentionsthat the Tribunal gravely erred in fixing joint liability againstthe APSRTC also for non fault of the APSRTC or the driverof the bus for the alleged accident occurred on account offalling of sagged electric live wire on the bus in which thedriver of the bus is not responsible for no act of bus drivercontributed to the accident and if at all the accident occurredwas from improper maintenance of electrical live wire by theAPSEPDCL and its subordinates whose duty was to cut andremove the branches of trees which are above the electricallive wire and the Tribunal should have seen that the RTC isno way liable, the claimants no way attempted to twist thefacts even; that the Tribunal gravely erred thereby in fixingthe liability of RTC. Hence to set aside the joint liability andto exonerate the RTC.

Learned counsel for the respective appellants also as 5[th]respondent to the respective appeals reiterated their contention suprain the course of hearing the appeal.

Respondent No.6, who is the driver of the bus, in both the appeals did not choose to appear. Hence the appeal is taken as heardon his behalf.

Whereas, it is the contention of learned counsel for respondents1 to 4 of the two appeals (claimants) that the award of the Tribunal isjust and for this Court while sitting in appeal there is nothing tointerfere and sought for dismissal of the appeals.

Perused the material on record. The parties will hereinafter bereferred to as arrayed before the Tribunal for the sake of convenience. As both appeals arise out of the same award impugning respectivejoint liability, both the appeals taken up together to decide.

Now the common points that arise for consideration are:

i.Whether the fixing of liability on the APSEPDCL andAPSRTC by the tribunal jointly is unsustainable equallyin arriving the quantum and if so, with what observationand conclusions and what liability and of whom amongthem, if any?

ii.To what result?

Point No.i:

There is no dispute on the manner of accident from the factualmatrix of the case viz., on the fateful i.e. on 15.10.2004 it was rainingand branch of Thumma plant fallen on road side due to which theelectrical live wire headline fallen on the bus, as a result of which thedeceased herein was electrocuted and sustained burn injuries andwas succumbed therefrom on 18.10.2004 while undergoing treatmentat Kakinada and the deceased was no other than the conductor of theRTC bus of the Narasapuram depot.

Now coming to the liability of appellants in both the respectiveappeals, the tribunal fixed the joint and several liability against them byholding that they are joint tort-feasors since the accident was outcomeof their composite negligence. It is for the reason that at time ofaccident, there was raining and had the bus stopped somewhere, theaccident could be averted. Apart from which, it is from the fall of tree orbranch of tree of road side on the live electric wire without any

protected casing to it and from falling of the live electric wire on thebus, particularly on the conductor of the bus, the electrocution to thebus conductor/deceased was caused and thereby he succumbed tothe burn injuries. It is thus the equal liability of the appellants in boththe appeals, but for fall of the live wire on the bus, otherwise there is noother negligence on the part of the bus driver. Needless to say, the fallof the road side tree also had little contribution. Had the live wire withprotected casing, therefrom even fall of the live wire on the bus theaccident could be averted. Thereby, the APSEPDCL cannot escapefrom its liability even for the reason in non stopping of the bus atsomewhere for heavy rain and proceeding on the road by the busdriver, that live wire touched the conductor on duty.

Having regard to the above, the composite negligence thoughnot be apportioned against both the joint tort-feasors to recoverrespectively for both jointly liable to recover entire amount by theclaimants against any of them as per the latest expression of the 3Judges Bench by the Apex Court in Pawan Kumar and Another vs.

Harkishan Dass Mohan Lal and 6 others[[1]], both the parties beforethe Court are having equally responsible for the accident andtherefrom there is equal liability of them to the claimants, with a right torecover by the claimants against both or any of them as per theprinciple laid down in the expression referred supra. If anybody,among the two respondents paid the compensation, then they canrecover half of the amount paid with interest and costs from the otherrespondent since both are liable equally and both are joint tortfeasors.

Coming to the quantum of compensation, as per Ex.A.7- salarycertificate, the monthly earning of the deceased is Rs.6,711/-, out ofwhich, an amount of Rs.711/- would be deducted towards professionaltax and other deductions, hence an amount of Rs.6,000/- would betaken into consideration towards monthly earning of the deceased.Ex.A.2 – Post Mortem Examination report shows the age of the deceased as 50 years. Besides considering the income of thedeceased at Rs.6,000/- per month, 15% increase would be takentowards prospective earning capacity. Then the earnings of thedeceased to be taken at Rs.6,900/-. Among the four claimants but forwife and unmarried daughter, the major son and married daughter arenot at all dependants on the deceased, but for sufferers if any.Therefrom as per the expression of the Apex Court reported in Sarla Verma v. Delhi Transport Corporation[[2]],where number ofdependent family members is 2 to 6, 1/4[th] of the income is to bededucted towards his personal expenses, since the dependents of thedeceased are below four in number as supra 1/3[rd] towards personalexpenses to be deducted. After deducting 1/3[rd] of the income from hisearnings, it comes to Rs.4,600/- per month, and for the age group of 45to 50, ‘13’ multiplier is applicable, then the loss of earnings comes toRs.7,17,600/- (4,600 x12x13).

Besides the loss of earnings, as per the expression of the Apex

Conclusion

Court in Rajesh v. Rajbir Singh[[3]], the 1[st] claimant would be entitledfor an amount of Rs.1,00,000/- towards loss of consortium; all theclaimants would be entitled for an amount of Rs.25,000/- towardsfuneral expenses and Rs.10,000/- towards loss of estate. In all theclaimants would be entitled for an amount of Rs.8,52,600/-. It is morethan what the tribunal awarded of Rs.7,16,944/-. Thereby, there isnothing to interfere with the award of the Tribunal on the quantum ofcompensation, but for no cross-objections to enhance otherwise. Accordingly, Point No.i for consideration is answered.Point No.ii:

In the result, both the appeals are dismissed with no costs. Miscellaneous petitions, if any, pending in this appeal shall standclosed.

_______________________________

Dr. B. SIVA SANKARA RAO, J

31.12.2014

BV

Note: LR copy to be marked – Yes.

[1]2014(3) SCC 590 2014(3) SCC 590

[2]2009 ACJ 12982009 ACJ 1298

[3]2013 ACJ 14032013 ACJ 1403