(Prayer: Appeal filed under Order 41 of CPC before the High CourtStay all further proceedings in M.V.O.P.No.10 of 2012 dt.18.10.2012 on the file of the Court of the Motor Accident Claims Tribunal, Ongole, before the III Addl Dist Judge's Court, Ongloe and pass.)

Introductory:

1. The 2nd respondent - APSRTC in MVOP No. 10 of 2012 on the file of the III Additional District Judge’s Court- Motor Accident Claims Tribunal, Ongole [for short ‘the learned MACT’], filed the present appeal questioning the award and decree dated 18.10.2012 passed therein, disputing the liability imposed and the quantum of compensation awarded at Rs.4,77,500/- .

2. The 6th respondent herein is the first respondent and driver of the RTC bus bearing No. AP 11 Z 4365 [for short ‘the offending vehicle”] and respondents Nos.1 to 5 herein are the claimants before the learned MACT.

3. For the sake of convenience, the parties will be hereinafter referred to as the claimants/petitioners and the respondents, with reference to their status before the learned MACT.

Case of the claimants:

4. [i] One Mekala Nageswara Rao, [hereinafter referred as the deceased], is the husband of petitioner No. 1, father of petitioners No.2 and 3 and son of the petitioners 4 and 5. He owned land in an extent of Ac.13.00 of land, cultivating the same together with the land in an extent 5 acres taken on lease and earning Rs.30,000/- per month by raising all types of crops. He was aged about 44 years.

               [ii] On the fateful day i.e. on 27.12.2011 at about 03.30 p.m. when the deceased was travelling on his motorcycle near Market Yard of Kurichedu, within the limits of Darsi Police Station, the driver of the offending vehicle drove the same in a rash and negligent manner and dashed the motorcycle causing the accident, whereby the deceased fell down and sustained injuries and lost his breath on the way to the hospital.

               [iii] A case in Crime No.167 of 2011 was registered for the offences under Section 304A IPC and 134 r/w 187 of M.V. Act, in Darsi Police Station against the driver of the offending vehicle – 1st respondent.

               [iv]     The petitioner was a sole breadwinner of his entire family. The petitioners/claimants are dependents on his income. Since the driver of the offending vehicle was negligent and responsible for the accident, the 2nd respondent being employer of the 1st respondent and owner of the offending vehicle, liable to pay compensation just and reasonable compensation.

5. The 1st respondent remained ex-parte.

Case of the 2nd respondent- APSRTC/appellant:-

6. [i] Driver of the offending vehicle is not negligent.

               [ii] Rider of the motorcycle was negligent as he was carrying gas cylinder and gas stove on his bike, having lost control on the motorcycle, met with an accident. Therefore, there was no negligence on the part of the 1st respondent and liability on the second respondent.

               [iii]     The claimant shall prove the accident, negligence, death of the deceased due to accident; age, occupation and income of the deceased, the dependency of the claimants, justification for the compensation claimed.

               [iv]     In any event, the quantum of compensation claimed is excessive and the 2nd respondent- APSRTC is not liable to pay any compensation.

Evidence before the Learned MACT:-

On behalf of the petitioners/claimants:

7. [i]  1st petitioner/claimant was examined as PW1, driver of the offending vehicle was examined as RW1.

               [ii]      Claimants relied on Exs.A1 to A5 i.e., Ex.A1- FIR, Ex.A2- inquest report, Ex.A3 - post mortem report certificate, Ex.A4- Motor Vehicles Inspector Report, Ex.-A5 charge sheet. Claim is laid under Section 163-A of Motor Vehicles Act.

Findings of the learned MACT:-

8. [i]  Documentary evidence covered by Exs.A1 to A5, evidence of PW.1 and admission of RW.1 as to filing of charge sheet are sufficient to believe the negligence of the driver of the offending vehicle. Since there is involvement of the offending vehicle and negligence of the driver of the offending vehicle, the claimants are entitled for compensation and respondents are liable.

               [ii] For want of proper proof etc., the income of the deceased can be taken notionally at Rs.3,900/- per month and 1/3rd of the same shall be deducted towards his personal expenses, 2/3rd of the income comes to Rs.31,200/- per annum.

               [iii]     By the application of multiplier ‘15’ provided for the age group between 41 to 45, the loss of dependency comes to Rs.4,68,000/- and claimants are entitled for Rs.2,000/- towards funeral expenditure, Rs.2,500/- towards loss of estate and first claimant is entitled Rs.5,000/- towards loss of consortium.

Arguments in the appeal:-

For the Appellant/APSRTC :-

9. [i] Negligence of the rider of the motor vehicle is ignored.

               [ii] There is no basis in adopting the income at ₹3,900 per month.

Compensation awarded is excessive.

For the Claimants/ respondents:-

10. [i] Learned MACT failed to award the compensation under all the heads in tune with the directions of the Hon'ble Supreme Court.

               [ii] Involvement of the offending vehicle alone is sufficient as the claim is laid under Section 163-A of Motor Vehicles Act.

11.  Perused the material on record.

12. Thoughtful consideration is given to the arguments advanced by both sides.

13.  The points that arise for determination in these appeals are:

               1. Whether the compensation awarded and the liability fixed under the impugned award and decree dated 18.10.2012 passed by the learned MACT in MVOP.No.10 of 2012 are sustainable in law and on facts? Or require any interference? If so, on what grounds and to which extent?

               2. What is the result of the appeal?

Point No.1:

Negligence:-

14.  Claim is made under Section 163-A of M.V. Act.    It is settled law that negligence need not even be pleaded when the claim is made under Section 163-A of M.V. Act. It is sufficient if the involvement of the offending vehicle is shown. RW.1 admitted about the criminal case against him.

15. (i). As per Section 176 of the Motor Vehicles Act, the State Governments are entitled to make rules for the purpose of carrying effect to the provisions of the Motor Vehicles Act.

               (ii). In relation to claims before the learned MACT, Rule 455 to Rule 476 of the A.P. Motor Vehicles Rules, 1989, vide Chapter No.XI provides comprehensive guidance. As per Rule 476 of the A.P. Motor Vehicles Rules, 1989, the claims Tribunal shall proceed to award the claim basing on the registration certificate of the vehicle, Insurance Policy, copy of FIR and Post-mortem certificate etc.

Precedential Guidance:

16. The Hon’ble Apex Court in Bimla Devi and others Vs. Himachal Road Transport Corporation (2009 (13) SCC 530), in para 15 observed as follows:

               “15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties..”

Reasoning and Findings:

17. In the light of the statutory and precedential guidance, since the claim is laid under Section 163-A of M.V. Act, proof of accident is sufficient and there is no necessity to establish the negligence. In the present case, both occurrence of the accident and involvement of offending vehicle are shown. Hence, the objection as to absence of negligence on the part of the driver of the offending vehicle i.e., the 1st respondent as well as the negligence on the part of the motor cyclist, is liable to be rejected in the factual context of the case. Therefore, findings of the learned MACT do not warrant any interference, either on the aspect of liability of the respondents or entitlement of the claimants.

Quantum of compensation:

Precedential guidance:

18. (i). For having uniformity of practice and consistency in awarding just compensation, the Hon’ble Apex Court provided guidelines as to adoption of multiplier depending on the age of the deceased in Sarla Verma (Smt.) and Ors. vs. Delhi Transport Corporation and Anr. (2009 (6) SCC 121) and also the method of calculation as to ascertaining multiplicand, applying multiplier and calculating the compensation vide paragraph Nos.18 and 19 of the Judgment.

               (ii).     Further, the Hon’ble Apex Court in National Insurance Company Ltd. vs. Pranay Sethi and Others (2017(16) SCC 680) case directed for adding future prospects at 50% in respect of permanent employment where the deceased is below 40 years, 30% where deceased is between 40-50 years and 15% where the deceased is between 50-60 years. Further, in respect of self-employed etc., recommended addition of income at 40% for the deceased below 40 years, at 25% where the deceased is between 40-50 years and at 10% where the deceased is between 50-60 years. Further, awarding compensation under conventional heads like loss of estate, loss of consortium and funeral expenditure at Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively is also provided in the same Judgment.

               (iii).    Further in Magma General Insurance Company Ltd. vs. Nanu Ram and Others ((2018) 18 SCC 130), the Hon’ble Apex Court observed that the compensation under the head of loss of consortium can be awarded not only to the spouse but also to the children and parents of the deceased under the heads of parental consortium and filial consortium.

Just Compensation:

19. In Rajesh and others vs. Rajbir Singh and others ((2013) 9 SCC 54), the Hon’ble Supreme Court in para Nos.10 and 11 made relevant observations, they are as follows:

               “10. Whether the Tribunal is competent to award compensation in excess of what is claimed in the application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At para 10 of Nagappa case [Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 : 2003 SCC (Cri) 523 : AIR 2003 SC 674] , it was held as follows: (SCC p. 280)

               “10. Thereafter, Section 168 empowers the Claims Tribunal to ‘make an award determining the amount of compensation which appears to it to be just’. Therefore, the only requirement for determining the compensation is that it must be ‘just’. There is no other limitation or restriction on its power for awarding just compensation.”

               The principle was followed in the later decisions in Oriental Insurance Co. Ltd. v. Mohd. Nasir [(2009) 6 SCC 280 : (2009) 2 SCC (Civ) 877 : (2009) 2 SCC (Cri) 987] and in Ningamma v. United India Insurance Co. Ltd. [(2009) 13 SCC 710 : (2009) 5 SCC (Civ) 241 : (2010) 1 SCC (Cri) 1213]

               11. Underlying principle discussed in the above decisions is with regard to the duty of the court to fix a just compensation and it has now become settled law that the court should not succumb to niceties or technicalities, in such matters. Attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim.”

Analysis, reasoning and Finding:-

20. (i). Although it was pleaded that the deceased owned agricultural land and taken certain land on lease, considering the absence of proper material in support thereof, the learned MACT adopted a guesswork and assessed the income of the deceased at Rs.3,900/- per month. There is no basis for such assessment. Even if the income is taken at Rs.3,000/- per month, for the age group around ‘40’, adding around 30% is permissible towards future prospects. Therefore, income taken can be considered as proper and inclusive of future prospects. Multiplier adopted is also proper. Hence, the same require no interference. However, with regard to awarding compensation under conventional heads - loss of estate, funeral expenditure etc., the guidance of the Supreme Court, which is law of land mandates awarding of Rs.15,000/- each in terms of the ratio laid down in Sarla Verma's case and Pranay Sethi's case.

               [ii] Further in terms of the directives of the Supreme Court in Magma General Insurance Company Ltd., the compensation under the heads of parental, spousal, and filial consortium @Rs.40,000/- can be awarded to each of the claimants. Wife is entitled for spousal consortium, children are entitled for parental consortium and parents are entitled for filial consortium. Therefore all the claimants together entitled for just compensation under the said heads. Therefore, the compensation awarded need addition under these heads.

               [iv] Awarding compensation under the heads of conventional heads at higher rates than what prescribed under Section 163 A is permissible in view of the observations of the Hon'ble Supreme Court made in Smt.Sarla Verma and Other’s case, wherein it is observed that the scales are fixed at decades back and revisit is necessary.

21.  In view of the reasons and the evidence referred above, the entitlement of the claimants for reasonable compensation in comparison to the compensation awarded by the learned MACT is found as follows: