United India Insurance Company Limited And Another v. Dandugula Bheem Bai Bheemakka And Others

1. This appeal is preferred by 2nd and 3rd respondents in O.P No. 255 of 1995 on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, Adilabad, filed by respondents 1 to 8 seeking the compensation of Rs. 3,00,000/- from the 9th respondent and appellants who are the driver, insurer and owner respectively of the lorry bearing No. AHH-2201 which caused an accident resulting in the death of Nagappa, husband of 1st respondent and father of respondents 2 to 6 and son of respondents 7 and 8 allegedly due to the rash and negligent driving of the 9th respondent. The claimants examined two witnesses on their behalf as P.Ws 1 and 2, including the 1st respondent as P.W 1 and marked Exs. A-1 to A-7 9th respondent and 2nd appellant chose to remain ex parte before the Tribunal. First appellant who filed a counter putting respondents 1 to 8 to proof of the allegations in the petition did not adduce evidence either oral or documentary. The Tribunal having held that the accident occurred due to the rash and negligent driving of the 9th respondent, awarded Rs. 1,90,000/- as compensation to respondents 1 to 8. Aggrieved by the compensation awarded against them, the insurer and owner of the lorry involved in the accident have preferred this appeal and dissatisfied with the compensation awarded to them the claimants i.e respondents 1 to 5 preferred cross-objections.

2. Appeal against 9th respondent was dismissed for default on 28-8-2002 for non-payment of process. Heard the learned counsel for the appellants and the learned counsel for the respondents 1 to 8.

3. The points that arise for consideration in the appeal are:

(i) Whether the accident occurred due to the rash and negligent driving of the 9th respondent?

(ii) To what compensation respondents 1 to 8 are entitled?

4. Point (i):— The evidence of P.W 1 is not relevant for this point, because she, admittedly, was not a witness to the accident. P.W 2 who is examined as a witness to the accident admitted during cross-examination, that police did not examine him in connection with the accident. Respondents 1 to 8 failed to explain as to how they came to know that P.W 2 was a witness to the accident and called him as a witness on their behalf. Even, P.W 2 did not state as to how respondents 1 to 8 came to know that he was a witness to the accident involving the deceased. Respondents 1 to 8 did not even file a list of witnesses. So it is difficult to believe the evidence of P.W 2 that he was a witness to the accident. That apart the evidence of P.W 2 that the lorry dashed against the deceased when he was waiting at the bus stand for a bus is diametrically opposite to the allegations in the F.I.R (Ex. A-1) and the panchanama of inquest (Ex. A-2) which show that the deceased while trying to board the lorry AHH 2201 had fallen down and was run-over by the rear wheels of the lorry. So I do not wish to take the evidence of P.W 2 into consideration for deciding this point.

5. It is no doubt true that nobody connected with Exs. A-1 and A-2 are examinedly the respondents 1 to 8, but the allegations therein show that the deceased while trying to board the lorry had fallen down. In Ex. A-6, charge sheet filed by the police against the 9th respondent in connection with the accident involving the deceased, it is stated that the 9th respondent, without observing that the deceased was boarding the lorry started the lorry and caused the death of the deceased. Since 9th respondent must have permitted the deceased to board the lorry, the deceased must have tried to board the lorry from the rear side of the lorry. When the 9th respondent permitted the deceased to get into the lorry, he ought to have started the lorry only after the deceased boarded the lorry, but 9th respondent seems to have moved the lorry even before the deceased boarded it i.e while the deceased was boarding it and so he had fallen down and was run over by the rear wheels of the lorry. He and his employer chose to remain ex parte though an allegation of rash and negligent driving is made against him. Therefore, I hold that the accident, resulting in the death of the deceased, occurred due to the negligence of the 9th respondent. The point is answered accordingly.

6. Point (ii):— The contention of the learned counsel for the appellants is that the Tribunal was in error in awarding Rs. 17,000/- towards loss of supervision charges without keeping in view the fact that pecuniary damages include loss of supervisory charges also. The contention of the learned counsel for respondents 1 to 8 is that the Tribunal was in error in holding that the deceased was a non-earning member as it did not take into consideration the ample evidence on record to show that the deceased was undertaking contract works apart from agriculture. It is his contention that since even a coolie was earning more than Rs. 50/- per day, the Tribunal fixing the income of the deceased at Rs. 10,000/- per annum is erroneous and in the facts and circumstances of the case and since the deceased was earning Rs. 5,000/- p.m respondents 1 to 8 are entitled to the entire compensation of Rs. 3,00,000/- claimed by them.

7. Since the accident occurred after the coming into force of Act 54 of 1994 i.e after 14-11-1994 the Tribunal took the Second Schedule of Motor Vehicles Act, 1988 (the Act) into consideration and fixed the multiplier and earnings of the deceased on that basis, without keeping in view the fact that Schedule-II of the Act applies to a petition under Section 163-A of the Act and that this is not a petition under Sec. 163-A, but is a petition under Section 166 of the Act.

8. The finding of the Tribunal that Ex. A-3 is a patta issued in favour of the deceased is not correct. Had the Tribunal perused Ex. A-3 it would not have failed to note that it was issued in the name of the 2nd respondent who is the 2nd petitioner in the claim petition. Except Ex. A-3, there is nothing on record to show that the deceased was possessed of any agricultural land or was doing business or contracts. Had the deceased been doing business or was undertaking contracts, there must be some documentary evidence to establish that fact. Since respondents 1 to 8 did not adduce any documentary evidence like registration under Andhra Pradesh General Sales Tax Act or any licence from any authority or any account books to show that the deceased was undertaking contract works or was carrying on business, the contention of respondents 1 to 8 that the deceased was undertaking contract works, and was doing business cannot be believed or accepted. As stated earlier there is no documentary or independent evidence on record to show that the deceased had lands of his own or took some lands of others on lease for purpose of agriculture. Since, the deceased was a resident of Rasulpalli village of Adilablad District and since the accident took place in March, 1995 when the average coolie, could have been about Rs. 40/- per day or Rs. 1,200/- per month at the villages, it can be taken that the deceased was earning about Rs. 1,200/- p.m and was contributing about Rs. 10,000/- p.a to respondents 1 to-8. Since the land under Ex. A-3 was assigned to 2nd respondent but not to the deceased, question of respondents 1 to 8 being awarded compensation towards loss of supervisory charges, as awarded by the Tribunal, does not arise.

9. Though there is no reliable evidence on record to show the age of the deceased, since the post mortem examination report of the deceased shows that he was aged about 42 to 45 years, it can be taken that the deceased was around 42 years of age by the date of death and so the multiplier as per Bhagavan Das v. Mohad. Arif . 1987 ACJ 1052. would be around ‘12.5’, but inasmuch as the deceased was not an employee, subject to retirement, multiplier ‘15’ fixed by the Tribunal can be adapted and so, the pecuniary damages payable to respondents 1 to 8 come to Rs. 10,000/- × 15 = Rs. 1,50,000/-.

10. The Tribunal awarded Rs. 20,000/- towards loss of consortium, loss of estate, Rs. 3,000/- towards funeral expenses and Rs. 17,000/- towards loss of supervision charges. As stated earlier, question of awarding loss of supervisory charges does not arise. Obviously, loss of consortium, funeral expenses etc., are awarded by the Tribunal, keeping in view of Schedule II of the Act. As stated earlier, Schedule II does not apply to claim filed under Section 166 of the Act. A Division Bench of this Court in A.P.S.R.T.C v. Gali Aruna . 1994 3 ALT 58 D.B. held that in a petition filed under Section 166, claimants are not entitled to funeral expenses. It is well known that compensation under Section 166 of the Act is awarded to compensate the loss due to untimely death of the victim. Funeral expenses have to be incurred irrespective of the fact whether the death is natural or accidental. So respondents 1 to 8 are not entitled to funeral expenses though, Schedule II of the Act provides for award of funeral expenses in a claim petition under Section 163-A of the Act.

11. As held in General Manager, K.S.R.T.C Trivendram v. Mts. Susamma Thomas . 1994 1 ALT 1 SC., 1st respondent is entitled to Rs. 15,000/- towards loss of consortium, which is much more than the loss of consortium fixed by Schedule II of the Act.

12. In Y. Varalakshmi & Others…. v. M. Nageswara Rao & Others…4, it is held that in every case of a fatal accident, a minimum compensation of Rs. 15,000/- should be awarded to the claimants towards non-pecuniary damages, such as loss of estate, loss of amenities in life etc. Keeping in view the age of the deceased and the fact that the accident occurred in 1995, the non-pecuniary damages can be fixed at Rs. 25,000/-.

13. Thus, respondents - 1 to 8 are entitled to Rs. 1,50,000/- + Rs. 15,000/- + Rs. 25,000/- = Rs. 1,90,000/- as compensation for the death of the deceased. The point is answered accordingly.

14. In the result, an Award is passed for Rs. 1,90,000/- in favour of the respondents - 1 to 8, against the 9th respondent and the appellants with interest at 9% per annum from the date of petition till the date of deposit into Court with proportionate costs before the Tribunal. Rest of the claim of respondents - 1 to 8 is dismissed without costs. From out of the said amount 1st respondent is entitled to Rs. 40,000/-, interest thereon and costs. Respondents - 2 to 6 are each entitled to Rs. 25,000/- and interest thereon 7th respondent is entitled to Rs. 10,000/- and interest thereon and 8th respondent is entitled to Rs. 15,000/- and interest thereon. The appeal and cross-objections are disposed of accordingly and parties are directed to bear their own costs in this Court.