G. Varalakshmi and Others Vs. Apsrtc, Hyderabad - Court Judgment

Excerpt:
motor vehicles - deduction in amount - section 168 of motor vehicles act, 1988 - pillion rider died in accident - accident claimed to have occurred due to carelessness of driver of respective vehicles - deceased earning monthly income - compensation be given under subject of pecuniary damages deducting fifty percent amount - claimants entitled to receive 100% amount as expenses expended on other things - amount not to be reduced on ground that claimant got service on sympathetic ground. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - in cases of this nature, 50% deduction should be made only from out of the amount of compensation granted under the head of 'pecuniary damages',and not from the amounts of compensation granted under the other heads like loss of consortium, funeral expenses etc.order1. this civil miscellaneous appeal is filed by the appellants/petitioners in op no.229 of 1991 on the file of motor accidents claims tribunal, rangareddy district. appellant no.1 is the wife and appellants 2 and 3 are the children of g. satyanarayana, who died in a road accident on 25-3-1991. 2. the brief facts: on 25-3-1991 at about 10.30 a.m., the deceased satyanarayana was proceeding to his office as a pillion rider on the scooter bearing no.aho 4918, driven by one m. gururajachary. when the scooter readied near the electrical sub station of g.s.i. complex, one rtc bus bearing no. aez 2134 came in the opposite direction and dashed against the scooter, as a result of which satyanarayana and the driver of thescooter died on the spot. the appellants filed the op in the tribunal claiming a total compensation of rs.3,00,000/- under various heads. the tribunal, considering the evidence on record, held that the accident took place due to 50% negligence of the driver of the rtc bus and 50% negligence of the driver of the scooter. the tribunal fixed the monthly dependency on the appellants at rs.1,000/-, taking into consideration the compassionate appointment given to appellant no.1 by the geological survey of india, and awarded rs. 1,74,000/-as pecuniary loss/damages to the appellants. the tribunal also awarded a sum of rs.30,000/- towards non-pecuniary damages, rs.2,500/- towards loss of consortium, and a sum of rs.2,500/- towards damage to the clothing and articles of the deceased. in all, the tribunal arrived at the total quantum of compensation as under: (in rupees)pecuniary damages1,74,000non-pecuniarydamages30,000consortium toappellant no. 12,500damage to theclothes and articles2,500 2,09,0003. the tribunal rounded off the same to rs.2,10,000/-. the tribunal passed decree in favour of the appellants only to the extent of 50% rs.2,10,000/- i.e., for rs.1,05,000/- as compensation payable to the appellants by the respondent- rtc since it took the view that the accident occured due to the composite negligence of the driver of the bus and the driver of the scooter. 4. aggrieved by the same, the wife and children of the deceased filed this appeal. 5. so far as the composite negligence part is concerned, in the very same accident the driver of the scooter mr. gururajachary also died. his dependents filed op no.348 of 1991 in the tribunal, and they also filed cma no.1538 of 1993 in this court dissatisfied with the quantum of compensation awarded by the tribunal. a division bench of this court by judgement dated 21-9-1995 confirmed the finding of the tribunal that there was composite negligence on the part of both the drivers of the motor vehicles involved in the accident. following the said judgement, i hereby confirm the finding of the tribunal that accident took place due to 50% negligence of the driver of rtc bus and 50% negligence of the driver of the scooter. 6. the first contention of the appellant's counsel is that the tribunal erred in granting a meager sum of rs.2,500/-towards loss of consortium to pw1 instead of rs.15,000/- and in not granting any amount towards funeral expenses. the learned counsel for the respondent did not oppose this contention seriously. hence, keeping in view the age of pw1 and the facts and circumstances, i hereby enhance the amount granted under the head of 'loss of consortium' to p.w.1 from rs.2,500/- to rs.15,000. i also grant a sum of rs 5,000/-towards funeral expenses. i am not inclined to disturb the amount of rs.30,000 granted towards non-pecuniary damages and rs.2,500/- granted towards value of damaged articles of the deceased. 7. the second contention of the appellants' counsel is that the tribunal while passing the decree deducted 50% out of the amounts awarded under all the heads of compensation, whether it is under the head of 'pecuniary damages' or under any other head. the learned counsel for the respondent contended that there should be deduction of 50% from out of the amounts awarded under all the heads because the accidenttook place due to the composite negligence of driver of the bus and the driver of the scooter. 8. i do not agree with this contention of the counsel for respondent. in this case, the deceased is not the driver of the scooter. he is only a pillion rider. the scooter was driven by his friend gururajachary, who also died on the spot in the very same accident. hence, composite negligence cannot be attributed to the deceased, as he is only a pillion rider. in cases of this nature, 50% deduction should be made only from out of the amount of compensation granted under the head of 'pecuniary damages', and not from the amounts of compensation granted under the other heads like loss of consortium, funeral expenses etc. for the above reason, i hold that the appellants are entitled to 100% of the amounts awarded under the heads other than 'pecuniary damages' as compensation, without any deduction. however, the appellants are entitled to only 50% of the amount awarded under the head of 'pecuniary damages'. 9. the third contention of the appellants' counsel is that the tribunal is not justified in fixing the monthly dependency of the appellants (monthly contribution of deceased to his family) only at rs. 1000/-, by wrongly taking into account the subsequent compassionate appointment given by the geological survey of india to pw1. he contended that, basing on the judgment in general manager, k.s.r.t. corporation v. susamma thomas, : air1994sc1631 and the division bench decision dated 21-9-1995 in cma no.1538 of 1993, the monthly dependency of the appellants has to be arrived at by doubting the salary of the deceased, deducting one-third therefrom. 10. in opposition, ms. nanda r. rao, counsel for the respondent-rtc vehemently contended -- relying upon the decision inhelen c. rebelio v. maharashtra state road transport corporation, : air1998sc3191 , submitting that both in susamma thomas case ( supra) and in the division bench judgement in cma no. 1538 of 1993 no general principle is laid down to the effect the monthly income of the deceased should be doubled for arriving at the monthly dependency, -- that the compensation payable to the dependants of motor accident victims should be balanced and all benefits accrued to the appellants, including the compassionate appointment given to appellant no.1, should be taken into account while fixing the monthly dependency. 11. it is no doubt true that pw1 got compassionate appointment. that does not mean that the future prospects of employment of the deceased, had he been alive, should not be taken into consideration. the deceased was aged 35 years as on the date of the accident. had he been alive, he would have been in service for atleast another twenty-five years, every year there would have been increase in his monthly emoluments and he may get promotions in future. all these things cannot be lost sight of. 12. it may be noted that the loss caused to the dependants due to the death of a person in a motor accident cannot adequately be compensated in terms of money, however high the sum granted may be. 13. the decision in robello's case, : air1998sc3191 , relied on by the counsel for the respondents, with great respect, is not applicable to the facts of the case on hand. in that case, the supreme court held that the amount received by the claimants therein from the life insurance corporation should not be deducted from compensation awarded. it was also held that the pecuniary advantages received by theclaimant to be deductable should have correlation with the accidental death of the deceased. 14. though in susamma thomas case (supra) no general principle is laid down that the monthly income should be doubled, having regard to the evidence on record in that case the monthly income of rs.1,032/-was taken as rs.2000/- per month. in this case also, we have got the evidence of pw3 coupled with ex.a6, which indicate that the deceased was getting a salary of rs.2,741/- per month. moreover, the division bench in cma no.1538 of 1993, which arose out of the very same accident, fixed the monthly dependency of the appellants therein (dependants of the driver of the scooter) by doubling his monthly salary. 15. the learned counsel for the appellantrs very rightly relied on a division bench decision of the karnataka high court in veerabhadrappan v. virupaxappa totappa bilebal, : air1998kant344 , wherein it was held that simply because one of the family members was given employment in the place of the deceased on compassionate grounds, the loss of dependency would not be off set against the income earned by the dependents from the appointment given to him/her on compassionate grounds, and that the income earned by the dependant would be for the services rendered by him/her independently of the loss to the estsate caused due to the death of the deceased. 16. i am in respectful agreement with the said division bench decision of the karnataka high court. therefore, the contention of respondent's counsel that the amount earned by pw1 on compassionate appointment should be adjusted towards compensation cannot be accepted, and the same is rejected. except ex.a3 post-mortem report, there is no other evidence to show that the deceased was aged35 years on the date of accident and the tribunal rightly adopted the multiplier of 14.5. 17. for the above reasons, i hold that the tribunal erreed in taking into account the compassionate appointment given to appellant no.1 in fixing the monthly dependency only at rs.1000/- and in not doubling the monthly income of the deceased. i accordingly modify the 'pecuniary damages' as under: monthlysalary of deceased - rs. 2,741/- (rounded off to rs. 2,740/-)monthlydependency - rs. 2,740 x 2 = rs. 5,480/-1/3rd of rs. 5,480 x 1/3 = rs. 1,826/-(rs. 5,480 - rs. 1,826) = rs. 3,654/-annualdependency - rs. 3,654 x 12 -rs. 43,848/-loss of dependency (pecuniary damages) = rs. 43,848 x 14.5 =rs. 6,35,796/-50% deduction (because of composite negligence) = 6,35,796x 1/2= rs. 3,1 7,898/-hence,the appellants would be entitled to the following amounts :pecuniarydamages=rs. 3,17,898-00non-pecuniarydamages= rs. 30,000-00loss ofconsortium (to appellant no.1)= rs. 15,000-00funeralexpenses= rs. 5,000-00damageto articles of deceased= rs. 2,500-00non-pecuniary= rs. 2,500-00 rs. 3,70,398-00though, the compensation payable is arrived at rs.3,70,398/-, i hereby grant only a sum of rs.3,00,000/- as the appellants have filed the o.p. claiming the compensation of onlyrs.3,00,000/-.18. no specific reason is forthcoming for awarding interest from the date ofclosure of appellants' evidence in the tribunal. hence, i hold that the appellants are entitled to interest at 12% per annum on the amount of compensation granted from the date of filing the petition for compensation till deposit/realisation and also the costs. 20. the tribunal appointed the amount of rs.1,05,000/- granted as under: first appellant= rs. 47,000second appellant= rs. 43,000third appellant= rs. 43,000 rs. 1,05,00021. out of the total amount of nowrs.3,00,000/- granted, the appellants would be entitled to the followingamounts:-first appellant= rs. 1,10,000second appellant= rs. 95,000third appellant= rs. 95,000 = rs. 3,00,00022. in addition to the above amounts, the appellants are entitled to interest at 12% p.a. from the date of filing of o.p. in the lower court till date of deposit/realisation and also the entire costs in the tribunal. 23. the appeal is allowed accordingly. there shall be no order as to costs in this appeal.

Judgment:
ORDER

1. This civil miscellaneous appeal is filed by the appellants/petitioners in OP No.229 of 1991 on the file of Motor Accidents Claims Tribunal, Rangareddy District. Appellant No.1 is the wife and appellants 2 and 3 are the children of G. Satyanarayana, who died in a road accident on 25-3-1991.

2. The brief facts: On 25-3-1991 at about 10.30 a.m., the deceased Satyanarayana was proceeding to his office as a pillion rider on the scooter bearing No.AHO 4918, driven by one M. Gururajachary. When the scooter readied near the electrical sub station of G.S.I. complex, one RTC bus bearing No. AEZ 2134 came in the opposite direction and dashed against the scooter, as a result of which Satyanarayana and the driver of thescooter died on the spot. The appellants filed the OP in the Tribunal claiming a total compensation of Rs.3,00,000/- under various heads. The Tribunal, considering the evidence on record, held that the accident took place due to 50% negligence of the driver of the RTC bus and 50% negligence of the driver of the scooter. The Tribunal fixed the monthly dependency on the appellants at Rs.1,000/-, taking into consideration the compassionate appointment given to appellant No.1 by the Geological Survey of India, and awarded Rs. 1,74,000/-as pecuniary loss/damages to the appellants. The Tribunal also awarded a sum of Rs.30,000/- towards non-pecuniary damages, Rs.2,500/- towards loss of consortium, and a sum of Rs.2,500/- towards damage to the clothing and articles of the deceased. In all, the tribunal arrived at the total quantum of compensation as under:

(in rupees)Pecuniary damages1,74,000Non-pecuniarydamages30,000Consortium toappellant No. 12,500Damage to theclothes and articles2,500

2,09,000

3. The Tribunal rounded off the same to Rs.2,10,000/-. The Tribunal passed decree in favour of the appellants only to the extent of 50% Rs.2,10,000/- i.e., for Rs.1,05,000/- as compensation payable to the appellants by the respondent- RTC since it took the view that the accident occured due to the composite negligence of the driver of the bus and the driver of the scooter.

4. Aggrieved by the same, the wife and children of the deceased filed this appeal.

5. So far as the composite negligence part is concerned, in the very same accident the driver of the scooter Mr. Gururajachary also died. His dependents filed OP No.348 of 1991 in the tribunal, and they also filed CMA No.1538 of 1993 in this Court dissatisfied with the quantum of compensation awarded by the Tribunal. A Division Bench of this Court by judgement dated 21-9-1995 confirmed the finding of the tribunal that there was composite negligence on the part of both the drivers of the motor vehicles involved in the accident. Following the said judgement, I hereby confirm the finding of the tribunal that accident took place due to 50% negligence of the driver of RTC bus and 50% negligence of the driver of the scooter.

6. The first contention of the appellant's Counsel is that the tribunal erred in granting a meager sum of Rs.2,500/-towards loss of consortium to PW1 instead of Rs.15,000/- and in not granting any amount towards funeral expenses. The learned Counsel for the respondent did not oppose this contention seriously. Hence, keeping in view the age of PW1 and the facts and circumstances, I hereby enhance the amount granted under the head of 'loss of consortium' to P.W.1 from Rs.2,500/- to Rs.15,000. I also grant a sum of Rs 5,000/-towards funeral expenses. I am not inclined to disturb the amount of Rs.30,000 granted towards non-pecuniary damages and Rs.2,500/- granted towards value of damaged articles of the deceased.

7. The second contention of the appellants' Counsel is that the Tribunal while passing the decree deducted 50% out of the amounts awarded under all the heads of compensation, whether it is under the head of 'pecuniary damages' or under any other head. The learned counsel for the respondent contended that there should be deduction of 50% from out of the amounts awarded under all the heads because the accidenttook place due to the composite negligence of driver of the bus and the driver of the scooter.

8. I do not agree with this contention of the Counsel for respondent. In this case, the deceased is not the driver of the scooter. He is only a pillion rider. The scooter was driven by his friend Gururajachary, who also died on the spot in the very same accident. Hence, composite negligence cannot be attributed to the deceased, as he is only a pillion rider. In cases of this nature, 50% deduction should be made only from out of the amount of compensation granted under the head of 'pecuniary damages', and not from the amounts of compensation granted under the other heads like loss of consortium, funeral expenses etc. For the above reason, I hold that the appellants are entitled to 100% of the amounts awarded under the heads other than 'pecuniary damages' as compensation, without any deduction. However, the appellants are entitled to only 50% of the amount awarded under the head of 'pecuniary damages'.

9. The third contention of the appellants' Counsel is that the Tribunal is not justified in fixing the monthly dependency of the appellants (monthly contribution of deceased to his family) only at Rs. 1000/-, by wrongly taking into account the subsequent compassionate appointment given by the Geological Survey of India to PW1. He contended that, basing on the judgment in General Manager, K.S.R.T. Corporation v. Susamma Thomas, : AIR1994SC1631 and the Division Bench decision dated 21-9-1995 in CMA No.1538 of 1993, the monthly dependency of the appellants has to be arrived at by doubting the salary of the deceased, deducting one-third therefrom.

10. In opposition, Ms. Nanda R. Rao, Counsel for the respondent-RTC vehemently contended -- relying upon the decision inHelen C. Rebelio v. Maharashtra State Road Transport Corporation, : AIR1998SC3191 , submitting that both in Susamma Thomas case ( supra) and in the Division Bench judgement in CMA No. 1538 of 1993 no general principle is laid down to the effect the monthly income of the deceased should be doubled for arriving at the monthly dependency, -- that the compensation payable to the dependants of motor accident victims should be balanced and all benefits accrued to the appellants, including the compassionate appointment given to appellant No.1, should be taken into account while fixing the monthly dependency.

11. It is no doubt true that PW1 got compassionate appointment. That does not mean that the future prospects of employment of the deceased, had he been alive, should not be taken into consideration. The deceased was aged 35 years as on the date of the accident. Had he been alive, he would have been in service for atleast another twenty-five years, every year there would have been increase in his monthly emoluments and he may get promotions in future. All these things cannot be lost sight of.

12. It may be noted that the loss caused to the dependants due to the death of a person in a motor accident cannot adequately be compensated in terms of money, however high the sum granted may be.

13. The decision in Robello's case, : AIR1998SC3191 , relied on by the Counsel for the respondents, with great respect, is not applicable to the facts of the case on hand. In that case, the Supreme Court held that the amount received by the claimants therein from the Life insurance Corporation should not be deducted from compensation awarded. It was also held that the pecuniary advantages received by theclaimant to be deductable should have correlation with the accidental death of the deceased.

14. Though in Susamma Thomas case (supra) no general principle is laid down that the monthly income should be doubled, having regard to the evidence on record in that case the monthly income of Rs.1,032/-was taken as Rs.2000/- per month. In this case also, we have got the evidence of PW3 coupled with Ex.A6, which indicate that the deceased was getting a salary of Rs.2,741/- per month. Moreover, the Division Bench in CMA No.1538 of 1993, which arose out of the very same accident, fixed the monthly dependency of the appellants therein (dependants of the driver of the scooter) by doubling his monthly salary.

15. The learned Counsel for the appellantrs very rightly relied on a Division Bench decision of the Karnataka High Court in Veerabhadrappan v. Virupaxappa Totappa Bilebal, : AIR1998Kant344 , wherein it was held that simply because one of the family members was given employment in the place of the deceased on compassionate grounds, the loss of dependency would not be off set against the income earned by the dependents from the appointment given to him/her on compassionate grounds, and that the income earned by the dependant would be for the services rendered by him/her independently of the loss to the estsate caused due to the death of the deceased.

16. I am in respectful agreement with the said Division Bench decision of the Karnataka High Court. Therefore, the contention of respondent's Counsel that the amount earned by PW1 on compassionate appointment should be adjusted towards compensation cannot be accepted, and the same is rejected. Except Ex.A3 post-mortem report, there is no other evidence to show that the deceased was aged35 years on the date of accident and the Tribunal rightly adopted the multiplier of 14.5.

17. For the above reasons, I hold that the Tribunal erreed in taking into account the compassionate appointment given to appellant No.1 in fixing the monthly dependency only at Rs.1000/- and in not doubling the monthly income of the deceased. I accordingly modify the 'pecuniary damages' as under:

Monthlysalary of deceased - Rs. 2,741/- (rounded off to Rs. 2,740/-)Monthlydependency - Rs. 2,740 x 2 = Rs. 5,480/-1/3rd of Rs. 5,480 x 1/3 = Rs. 1,826/-(Rs. 5,480 - Rs. 1,826) = Rs. 3,654/-Annualdependency - Rs. 3,654 x 12 -Rs. 43,848/-Loss of dependency (Pecuniary damages) = Rs. 43,848 x 14.5 =Rs. 6,35,796/-50% deduction (because of composite negligence) = 6,35,796x 1/2= Rs. 3,1 7,898/-Hence,the appellants would be entitled to the following amounts :Pecuniarydamages=Rs. 3,17,898-00Non-pecuniarydamages= Rs. 30,000-00Loss ofconsortium (to appellant No.1)= Rs. 15,000-00Funeralexpenses= Rs. 5,000-00Damageto articles of deceased= Rs. 2,500-00Non-pecuniary= Rs. 2,500-00

Rs. 3,70,398-00

Though, the compensation payable is arrived at Rs.3,70,398/-, I hereby grant only a sum of Rs.3,00,000/- as the appellants have filed the O.P. claiming the compensation of onlyRs.3,00,000/-.

18. No specific reason is forthcoming for awarding interest from the date ofclosure of appellants' evidence in the Tribunal. Hence, I hold that the appellants are entitled to interest at 12% per annum on the amount of compensation granted from the date of filing the petition for compensation till deposit/realisation and also the costs.

20. The Tribunal appointed the amount of Rs.1,05,000/- granted as under:

First appellant= Rs. 47,000Second appellant= Rs. 43,000Third appellant= Rs. 43,000

Rs. 1,05,000

21. Out of the total amount of nowRs.3,00,000/- granted, the appellants would be entitled to the followingamounts:-First appellant= Rs. 1,10,000Second appellant= Rs. 95,000Third appellant= Rs. 95,000

= Rs. 3,00,000

22. In addition to the above amounts, the appellants are entitled to interest at 12% p.a. from the date of filing of O.P. in the lower Court till date of deposit/realisation and also the entire costs in the tribunal.

23. The appeal is allowed accordingly. There shall be no order as to costs in this appeal.