Etikala Varalaxmi and ors. Vs. the General Manager, Andhra Pradesh State Road Transport Corporation - Court Judgment

Excerpt:
motor vehicles - quantum of compensation - section 110 b of motor vehicles act, 1939 - trial court found that there was contributory negligence on part of deceased - trial court held that in normal course compensation would have been rs. 27500 but allowed only rs. 13750 comprising rs. 10000 towards loss of earnings and rs. 3753 toward consortium - finding of contributory negligence accepted by high court - computation adopted by trial court is not correct - high court fixed total compensation at rs. 50000 with interest at rate of 12% per annum from date of claim - when bereaved family gets certain pecuniary advantage as consolation in lieu of death such pecuniary benefit has to be necessarily taken into account in assessing disadvantage to family - appeal partly allowed. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - 2 clearly stated that the motor cycle fell down and mud-guard of the bus caught the shirt of the deceased and dragged him, and that the deceased fell down on the road he does not say that the front wheel of the bus ran over the body of the deceased.1. this appeal at the instance of the claimants is u/s. 110d of the motor vehicles act. the claim for compensation arose out of the accident occurred on 20-6-1981 at about 2 p.m. when the apsrtc express bus dashed against the deceased who was going on a motor cycle. the claimants are the wife and children of the deceased. it is stated that the -deceased was working as a supervisor in agricultural marketing society, nidamanoor drawing a salary of rs.710/- p. m. the court below found. that there was a contributory negligence on the part of the deceased and held that in normal course the compensation would have been rs.27,500/- but however allowed only rs.13,750/- comprising rs.10,000/- towards loss of earnings and rs.3753 towards consortium. 2. the learned counsel for the appellants contends that there is no contributory negligence and it is solely due -to rash and negligent driving of the driver of the apsrtc express bus the accident occurred and that in any event the compensation awarded to the appellants is too low in the circumstances. 3. on behalf of the claimants two witnesses are examined. out of them p. w. 19 not an eye-witness. p. w. 2 stated that even before the deceased took turn of his motor cycle and was about to start, the bus coming from miryalaguda at a high speed of 50 k. m.p. h. dashed against the motor cycle and thereupon the motor cyclist fell down and the mud-guard of the bus caught the shirt of the deceased and dragged him to a distance of 60 feet and the deceased fell down on the road and front wheel passed over his right hand and the left wheel of the bus was stationed on his back. in crow-examination he, however, stated that the deceased started the motor cycle and sat on it but he had not moved the vehicle. 4. p. w. 1, the driver of the bus stated that he was driving the bus slowly, and suddenly the motor cyclist took out his motor cycle and took a turn and he heard dashing sound from the side, where the conductor of the bus sits and that he immediately took the bus to further right and stopped the bus. p 'w. 2 clearly stated that the motor cycle fell down and mud-guard of the bus caught the shirt of the deceased and dragged him, and that the deceased fell down on the road he does not say that the front wheel of the bus ran over the body of the deceased. as stated by the court below the crushing and multiple injuries would be found if the wheel of the bus ran over the victim, but, it is stated that the postmortem certificate was n6t produced to ascertain the nature of the injuries' and the panchanama was also not produced. it is evident from the evidence of p. w. 2 that the deceased was turning his motor cycle without taking note of the approaching bus and the driver of the bus at about the same time, without noticing that the motor cyclist was taking a turn, proceeded and as a result the accident occurred. as stated by the court below the unfortunate accident could have been averted if they had taken care. on these facts, the court below found that there is . contributory negligence and accept the finding. 5. regarding the quantum of compensation, the claimants claimed rs.1,40,000/- towards loss of earnings and rs.10,000/- towards loss of consortium. it is stated that the deceased was working as a supervisor in an agricultural marketing society and that he was earning rs.710/- per month. it is not in dispute that the wife was employed by the agricultural marketing society, in which. her deceased husband worked, on salary of rs.500/- per month as her husband died in harness. on working out the difference between the salary earned by her husband and the amount given to her for the maintenance of the family, the court below arrived at rs.65/- per month and multiplied the same by 28 and arrived at rs.21,640/- as net monetary loss for the family consequent upon the premature death of the deceased and it was rounded to rs.20,000/-. the computation adopted by the court below is not correct in the circumstances. admittedly there is a difference of rs.200/- per month between the salary received by the husband and the salary paid to the wife and such annual income is rs.2400/- and this amount of rs.2400/- has to be multiplied by.28 and on such computation the amount comes to rs.67,200/-. considering the contributory negligence the amount that can be computed is rs.33,600/- and on this basis the consortium also has to be increased. further it is not in dispute that the deceased was dragged for about 60 feet and it shows that the driver did not immediately stop the bus in spite of the accident and if he stopped the bus it would have mitigated the consequences of the accident. taking into consideration this aspect and the totality of circumstances the total compensation can be reasonably fixed at rs.50,000/-. the compensation awarded by the, court below shall be 'substituted by rs.50,000/-. this amount of compensation of rs.50,000/- shall be payable with interest at the rate of 12% per annum from the date of the claim, and the apportionment of the compensation amongst the wife and the children will be the same as given by the court below. 6. the learned counsel for the appellants contended that even if the wife is employed in lieu of the death of her husband in the accident, the salary payable to her is not liable to be deducted in computing the quantum of compensation payable on the death of her husband. in support of this contention the learned counsel invited to the decision in nirmala sharma v. raja ram, : air1982delhi233 , wherein it is held that 'moreover if the heir has joined service her salary cannot be taken into consideration or deducted from the amount of compensation payable to her. 7. the learned counsel for the apsrtc referred to the decision in gobald motor service v. veluswam. , : [1962]1scr929 . the supreme court having referred to the general principles relatable to the computation of compensation on the death of a person in the course of accident held as follows: 'therefore, actual extent of the pecuniary loss 'to the respondents may depend upon the, data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture. shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained.'it may be that compensation in terms of money may not be adequate substitute for the loss of husband or kith and kin. but, however the damages have to be necessarily computed on the basis of the pecuniary 1oss sustained to the family and the loss of earnings. to arrive at the correct assessment of the pecuniary loss, the earnings of the deceased should be estimated and his contribution to the family has to be necessarily ascertained. while considering this aspect several considerations will arise and the element of[ guess work cannot be ruled out. in a situation where the husband dies the earnings of the deceased husband have to be estimated on the basis of. the expectancy of life and net earnings available to the family. if the bereaved family gets certain. pecuniary advantage as a consolation in lieu of death such pecuniary benefit has to be necessarily taken into account in assessing the disadvantage to the family as a result of the accident. the delhi high court in : air1982delhi233 (supra) did not advert to the rationale in support of the view hat the benefit to the family cannot be taken into account at all in assessing the quantum of compensation and i am unable to agree with the view propounded by the delhi high court. 8. appeal partly allowed. no costs. 9. appeal partly allowed.