(Prayer: Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased toto set aside the Order and Decree passed in MVOP No. 554 of 2007 dt. 14-11-2011 on the file of Motor Accidents Claims Tribunal Family Court, SPSR Nellore by fixing contributory negligence and pass

IA NO: 1 OF 2012(MACMAMP 2406 OF 2012

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay the orders and Decree dated 14.11.2011 passed in MVOP.No.554/2007 by Motor Accidents Claims Tribunal Family Court, SPSR Nellore, pending disposal of the CMA

IA NO: 3 OF 2012(MACMAMP 9493 OF 2012

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased

IA NO: 1 OF 2013(MACMAMP 4748 OF 2013

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim order passed by this Hon'ble Court granted in MACMA MP No. 2406 of 2012 in MACMA No. 680 of 2012, dated 27.04.2012, and pass)

Introductory:

1. The sole respondent / A.P.S.R.T.C. in M.V.O.P.No.554 of 2007 on the file of the Chairman, Addl. Motor Accident Claims Tribunal-cum-Judge, Family Court, S.P.S.R. Nellore District (for short “the learned MACT”), feeling aggrieved by the award and decree dated 14.11.2011, filed the present appeal.

2. Respondent Nos.1 and 2 herein are the claimants.

3. For the sake of convenience, the parties are hereinafter referred to as the claimants and the respondent.

Case of the claimants:

4 (i). One Bapanapalli Venkateswarlu (hereinafter referred to as “the deceased”) is the only son of the claimants, aged about “27‟ years and was working as a teacher and was earning Rs.6,000/- per month. He was also taking tuitions.

                  (ii). On 10.02.2007, the fateful day, in the morning at about 9:00 A.M., the deceased along with some others boarded an Auto bearing registration No. A.P. 26 X 3725 and was proceeding towards Jaladanki to attend his duty at his school. At about 09:30 A.M., when the auto was near Budamgunta cross road, the A.P.S.R.T.C. bus bearing No.Ap 28 Z 500 (hereinafter referred to as “the offending vehicle”), proceeding from Udayagiri to Kavali, driven by its driver, came in a rash and negligent manner and dashed the auto, causing the accident. The deceased and others sustained grievous injuries.

                  (iii). The deceased was immediately shifted to Area Hospital, Kavali, from there to Narayana Hospital, Nellore and thereafter to Vijaya Hospital, Chennai. On 17.02.2007, while undergoing treatment, he succumbed to the injuries. Due to the death of the deceased, the claimants lost everything and their entire future became dark. Hence, they are entitled for Rs.8,90,000/-.

                  (iv). They had to incur Rs.1,20,000/- towards medical expenditure and heavy expenditure towards transportation.

5. A case in Crime No.24 of 2007 was registered against the driver of the offending vehicle.

Case of the respondent / A.P.S.R.T.C (appellant):

6(i). The negligence of the driver of the auto is the cause for the accident.

                  (ii). Neither the driver of the A.P.R.T.C. bus nor the respondent Corporation is liable to pay any compensation to the claimants.

                  (iii). The claimants are put to strict proof as to the occurrence of the accident, negligence of the driver of the bus, age, occupation income of the deceased and dependency of the claimants.

                  (iv). In any event, the compensation of Rs.8,90,000/- claimed by the claimants is excessive.

Findings of the learned MACT:

7. By referring to the evidence of the eye-witness-P.W.2 and the crime record, as well as the post-mortem certificate etc., the learned MACT believed the negligence of the driver of the A.PS.R.T.C. bus. The contention that in another case in M.V.O.P.No.376 of 2008 the learned I Additional District Judge- cum-I Additional Motor Accidents Claims Tribunal, Nellore, gave a finding that the driver of the auto is also negligent and therefore the liability can be restricted to 50% for A.P.S.R.T.C., is not binding on the Tribunal and the same was distinguished with reference to pleadings and evidence. Particularly referring to that when there are two wrongdoers, all wrongdoers are jointly and severally liable. After referring to the decisions in T.O.Anthony vs. Karvarnan and others((2008) 3 SCC 748; Civil Appeal No.1082 of 2008) case and also in P. Purushotham Reddy vs. Managing Director, Patc(2002 ACJ 1011) etc. the Tribunal made the respondent A.P.S.R.T.C. (appellant) liable to pay the compensation.

8. While quantifying the compensation, the learned MACT adopted the income of the deceased at Rs.6,000/- per month, applied the multiplier of “13‟ and awarded Rs.34,725/- towards medical expenditure, Rs.15,000/- towards transportation, Rs.2,000/- towards funeral expenses, Rs.2,500/- towards loss of estate and Rs.4,68,000/- towards loss of dependency and in all Rs.5,22,225/-.

Arguments in the appeal:

For the appellant:

9(i). The compensation awarded is excessive.

                  (ii). The rate of interest awarded at 7.5% is excessive.

                  (iii). Contributory negligence on the part of the driver of the auto was wrongly ignored.

                  (iv). Ex.A5-Salary Certificate is not properly proved. Therefore, relying on the same is inadequate.

For the claimants:

10(i). The compensation awarded under the heads of loss of estate and loss of consortium etc. is inadequate.

                  (ii). The claimants are entitled for more compensation than what is awarded.

                  (iii). There is no bar to award more compensation in this appeal, although the claimants did not choose to file an appeal.

                  (iv). The point of negligence was properly appreciated by the learned MACT.

                  (v). The appeal is fit to be dismissed, but by enhancing the compensation.

11. The points that arise for determination in this appeal are:

                  1) Whether the pleaded accident is shown to have occurred due to the negligence of the driver of the A.P.S.R.T.C. bus and whether the liability fixed on the respondent (appellant) / A.P.S.R.T.C is proper?

                  2) Whether the compensation of Rs.5,22,225/- with interest at the rate of 7.5% interest awarded by the learned MACT is just and reasonable or requires any modification, and if so, to what extent?

                  3) What is the result of the appeal?

Point No.1:

Statutory and Precedential Guidance:

Statutory Guidance:

12(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.11 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:

13. 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..”

14. The occurrence of the accident is not in dispute. P.W.3 is an eye witness to the accident and he has clearly stated about the negligence of the driver of the A.P.S.R.T.C. bus.

15. Ex.A1-FIR is clear that the driver of the A.P.S.R.T.C. bus came at high speed and dashed the auto, whereby the auto became totally damaged and one person died on the spot. It is also came on evidence that the driver of the auto also died.

16. The evidence of R.W.1, driver of the bus, shows that he observed the auto but the auto hit him. During his cross-examination, he admitted that the Police filed a case against him covered by Crime No.24 of 2007. He did not give any report to the Police against the driver of the auto.

17. It is not the case of R.W.1 that he was acquitted and that there were no departmental proceedings against him. Even if it were to be a case of negligence on the part of both the drivers of the auto and the bus, the deceased being a third party and not a party to the negligence, it can be considered as a case of contributory negligence on the part of both the drivers. It is the choice of the victim to proceed against either of the wrongdoers and the victim cannot be faulted for not proceeding against the other wrongdoer for civil remedy. As regards criminal prosecution, though it may be necessary to proceed against both. What happened to the criminal prosecution has not brought on record by the appellant / A.P.S.R.T.C.

18(i). Therefore, the excuse that the negligence shall be apportioned to the auto, its owner and Insurance Company, if any, is not fit to be considered and proper remedies should have been resorted to against the auto by the A.P.S.R.T.C. at the appropriate time for contribution, if any. Looking from the angle of victims, the present case can be considered as one falling under composite negligence. Therefore, the escape sought by the appellant / A.P.S.R.T.C. is rejected. The distinction between composite and contributory negligence has been addressed in the following precedents:

                  (ii). Hon‟ble Supreme Court in a case between Pavan Kumar and Another vs. Harkishan Dass Mohan Lal and others4, after referring to T.O.Anthony vs. Karvarnan and others (1 supra) and Andhra Pradesh State Road Transport Corporation and Another vs. K. Hemlatha and others((2008) 6 SCC 767) addressed as to distinction between the principles of composite and contributory negligence vide para Nos.7, 8 and 9 as follows:

                  7. The distinction between the principles of composite and contributory negligence has been dealt with in Winfield & Jolowicz on Tort (Chapter 21) (15th Edn. 1998). It would be appropriate to notice the following passage from the said work:

                  “Where two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the plaintiff to suffer a single injury the position is more complicated. The law in such a case is that the plaintiff is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It is greatly to the plaintiff's advantage to show that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. The same picture is not, of course, so attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role.

                  ***

                  The question of whether there is one injury can be a difficult one. The simplest case is that of two virtually simultaneous acts of negligence, as where two drivers behave negligently and collide, injuring a passenger in one of the cars or a pedestrian, but there is no requirement that the acts be simultaneous….”

                  8. Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.O. Anthony [T.O. Anthony v. Karvarnan, (2008) 3 SCC 748 : (2008) 1 SCC (Civ) 832 : (2008) 2 SCC (Cri) 738] followed in K. Hemlatha [A.P. SRTC v. K. Hemlatha, (2008) 6 SCC 767 : (2008) 3 SCC (Cri) 34].

                  9. Paras 6 and 7 of T.O. Anthony [T.O. Anthony v. Karvarnan, (2008) 3 SCC 748 : (2008) 1 SCC (Civ) 832 : (2008) 2 SCC (Cri) 738] which are relevant may be extracted herein below : (SCC p. 751)

                  “6. “Composite negligence‟ refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.

                  7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of “composite negligence‟ will not apply nor can there be an automatic inference that the negligence was 50 : 50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.”

19. In view of the discussion made above, Point No.1 is answered against the appellant / A.P.S.R.T.C. concluding that the occurrence of the accident and the negligence of the driver of the bus fixing the liability on the respondent (appellant/ A.P.S.R.T.C) are clearly shown and properly appreciated by the learned MACT and there are no grounds to interfere with the same.

Point No.2:

Precedential guidance:

20(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. v. 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. v. 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:

21. 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.

22. Ex.A5-Salary certificate is placed, which indicates the salary at Rs.6,000/-. From Ex.A5, the income of the deceased and his occupation can be safely accepted. Since the age of the deceased by the time of accident was “27‟ years, the possibility of progress in income can be accepted to the extent of around 40%, whereby the income of the deceased can be taken at around Rs.8,000/-.

23. Since the deceased died unmarried, 50% is fit to be deducted, whereby his contribution comes to Rs.4,000/- per month and Rs.48,000/- per annum. In view of the age of the deceased being “27‟, the multiplier applicable is “17‟, and when the same is applied, the entitlement of claimants for compensation under the head of loss of dependency comes to Rs.8,16,000/-(Rs.48,000/- x 17). Towards medical expenditure, Rs.34,725/- awarded by the learned MACT is fit to be accepted. Rs.15,000/- awarded by the learned MACT towards transportation is also fit to be accepted.

24. Further, the claimants are entitled for compensation under the conventional heads i.e. Rs.40,000/- to each claimant towards loss of consortium, Rs.15,000/- towards funeral expenditure and Rs.15,000/- towards loss of estate.

25. In view of the reasons and 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: