Perneti Nirmalamma and ors. Vs. A.P.S.R.T.C. Rep. by Its Managing Director - Court Judgment

SooperKanoon Citationsooperkanoon.com/435939
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided OnAug-06-2009
Case NumberC.M.A. Nos. 2664 of 2003 and 2922 of 2003
JudgeA. Gopal Reddy and ;B. Chandra Kumar, JJ.
Reported in2009(5)ALT781
AppellantPerneti Nirmalamma and ors.
RespondentA.P.S.R.T.C. Rep. by Its Managing Director
Appellant AdvocateM. Venkata Narayana, Adv. in C.M.A. No. 2664 of 2003 and ;Kallakuri Srinivasarao, SC in CMA 2922/2003
Respondent AdvocateM. Venkata Narayana, Adv. in CMA 2922/2003 and Kallakuri Srinivasarao, SC in C.M.A. No. 2664 of 2003
Excerpt:
- - 3. this case is yet another example, to show how a single incident destroys all the hopes and aspirations of a well settled family. c, argued that the tribunal failed to consider that the accident occurred due to the contributory negligence of the deceased and that the bus driver was not negligent in driving the bus. 2 and 3 clearly shows that there is no involvement of any other vehicle as alleged by r. a-11 and a-12. he had also obtained first aid at sea certificate from the ministry of shipping and transport in 1993. the certificates also show that his ability and conduct were assessed as good and sobriety as strictly sober.b. chandra kumar, j.1. since both these c.m.as i.e., c.m.a. no. 2664 of 2003 filed by the claimants seeking enhancement of compensation, and c.m.a. no. 2922 of 2003 filed by the a.p.s.r.t.c challenging awarding of compensation in favour of the claimants, arise out of the order dated 25-04-2003 made in o.p. no. 404 of 1997 by the chairman, motor accidents claims tribunal, nellore (principal district judge, nellore) (hereinafter referred as 'the tribunal'), they are being disposed of by this common judgment.2. the parties will be referred as they are arrayed before the tribunal for the sake of convenience.3. this case is yet another example, to show how a single incident destroys all the hopes and aspirations of a well settled family. the first claimant had lost her husband p. surendra reddy, who was aged about 29 years on the date of accident (hereinafter referred as 'the deceased'). the first claimant was aged only 20 years and the second claimant was aged about four months on the date of accident. the third claimant is the father and the fourth claimant is the mother of the deceased. the deceased was working as marine engineer, who had obtained licence to work as merchant marine officer from several countries. he was under the employment of bergesen: as company working from 01-12-1995 on a monthly remuneration of 1924 us dollars equivalent to rs. 71,088/- and maintaining his family very decently. as per the terms and conditions of employment, his employment was with the said company till 21-01-2001. during the relevant period, he came to his native place kattuvappalli village, manubolu mandal, nellore district to spend the leave period with his family. on 25-05-1997 while the deceased was proceeding to his village from nellore on a bajaj scooter and when he reached near palm oil factory, manubolu on g.n.t. road and proceeding along the left side of the road, the offending rtc bus bearing no. ap 9z 6511, being driven by its driver g. sudhakar raju in a rash and negligent manner at high speed came from opposite direction i.e., from gudur side and dashed against the scooter and due to the impact of the accident, the deceased sustained grievous injuries and died on the spot. because of the premature death of the deceased, his family lost their sole earning member. the claimants have claimed total compensation of rs. 95,65,000/- against the a.p.s.r.t.c, the owner of the bus.4. the sole respondent-a.p.s.r.t.c resisted the claim of the claimants and denied the averments of the claimants with regard to the age, occupation and income of the deceased. it is also denied that the accident occurred due to rash and negligent driving of the bus driver. it is further averred that the deceased himself tried to over take one mini lorry stationed by the side of the road and in that process hit the said mini lorry and fell down on the road and came underneath the wheels of the bus and that the deceased himself was negligent and responsible for the accident. it is also averred that the claim of the claimants is highly excessive, exorbitant and illusionary.5. the tribunal framed the following issues.1. whether the alleged accident occurred due to the rash and negligent driving of the vehicle ap 9z/6511 by its driver?2. whether the petitioners are entitled to compensation and if so, to what amount?3. to what relief?6. on behalf of the claimants, the first claimant was examined as p.w.1 and p.ws.2 to 5 were also examined and exs.a-1 to a-42 were marked. on behalf of the respondent-a.p.s.r.t.c, the driver of the bus was examined as r.w.1, but no documents were marked. the letter written by the state bank of india, nellore, to the district judge, nellore informing the rate of us dollar was marked as ex.x-1.7. the tribunal, on appreciation of the oral and documentary evidence, held that the accident occurred due to the rash and negligent driving of the bus driver. on issue no. 2, the tribunal determined the income of the deceased at 1924 us dollars, but however deducted 50% of the same towards his personal expenses and determined the loss of dependency at rs. 1000 us dollars per month i.e., 12,000 us dollars per year. the tribunal deducted 30% towards income tax and the loss of earnings were determined at 8400 us dollars per year. the tribunal taking the age of the deceased as 29 years and applying the multiplier '13' for calculating the loss of dependency of wife and child and taking the age of the mother as 45 years and applying the multiplier 7' for calculating the loss of dependency of mother of the deceased, determined the loss of dependency of the wife and child at 96,200 dollars 7400 x 13) and the loss of dependency of the mother of the deceased at 7000 dollars (1000 x 7 respectively. the conversion rate of the dollar was taken at rs. 33/- and accordingly the loss of dependency of the wife and child was estimated at rs. 31,74,600/- and the loss of dependency of the mother was estimated at rs. 2,31,000/-. the claimants were also awarded rs. 15,000/- towards loss of estate and the first claimant was awarded rs. 15,000/- towards loss of consortium. thus, total compensation awarded to claimants 1, 2 and 4 is a sum of rs. 34,35,600/-.8. sri m. venkatanarayana, learned counsel for the claimants, submitted that as on the date of the accident the deceased was aged about 29 years, working as a marine engineer and he had a bright future and his salary would have been increased in his future career and that the tribunal has not considered the future prospects of the deceased. it is also submitted that the tribunal committed an error in deducting 50% towards personal expenses of the deceased instead of deducting 1/3 towards his personal expenses. learned counsel has relied on a decision reported in united india insurance co. ltd. v. patricia jean mahajan : 2002 (2) an.w.r. 228 (sc) : 2002 acj 1441, wherein the supreme court considered the claim of the legal heirs of american national of indian origin, who died in motor accident in india. he has also relied on a decision of this court reported in bhagawan das v. mohd. arif 1987 acj 1052, wherein the principles of assessment of pecuniary damages have been enunciated.9. sri k. srinivasa rao, learned standing counsel for the a.p.s.r.t.c, argued that the tribunal failed to consider that the accident occurred due to the contributory negligence of the deceased and that the bus driver was not negligent in driving the bus. as far as taking the income of the deceased is concerned, his main submission is that the tribunal committed an error in determining the income of the deceased and did not consider the circumstances that the deceased was on duty for only six months or nine months in a year and that there is no evidence to show how much he would have earned during the period he was not on duty. it is also his submission that the income of the deceased was fluctuating depending on the terms of the agreement entered with the company, in which he was working. it is also submitted that the compensation awarded is excessive.10. the points that arise for consideration are; (1) whether the accident occurred due to rash and negligent driving of the driver of the bus or whether there is any contributory negligence of the deceased? and (2) whether the awarding of compensation is on higher side or whether the claimants are entitled for enhanced compensation?11. point no. 1: the specific claim of the claimants is that on 25-05-1997 at about 9.00 p.m. while the deceased was proceeding from nellore to his village on a bajaj scooter along the left side of the gnt road, and when he reached near palm oil factory, manubolu, the rtc bus coming from opposite direction being driven by its driver in a rash and negligent manner at high speed and dashed the scooter, as a result of which the deceased sustained grievous injuries and died on the spot. p.w.1 is the wife of the deceased. she is not an eye-witness to the accident. however, ex.a-1 certified copy of fir in crime no. 45 of 1997 of manubolu police station, ex.a-2 certified copy of post-mortem certificate and ex.a-3 certified copy of the charge sheet in c.c. no. 213 of 1997 on the file of the judicial magistrate of first class, gudur, which are relevant for this issue have been marked in her evidence.12. p.ws. 2 and 3 have been examined as eye witnesses to the accident. according to p.w.2, on the date of accident, he went in search of his cattle, which were missing and while he was proceeding towards nellore side, he witnessed the accident. according to him, the deceased who was coming on a scooter from nellore side was crushed underneath the bus at about 9.00 p.m. and that he was at a distance of 30 feet from the place of accident. his evidence further shows that the bus was driven at high speed and there were skid marks on the road and the dead body of the deceased was fallen on the center of the road and the scooter was fallen on the right side of the road. his village is at a distance of 1 1/2 kms from the place of accident. during the cross-examination, p.w.2 deposed that since it was dark, he cannot say who was at fault and that he was not examined by the police. he further deposed that he did not observe any mini lorry stationed on the left side of the road margin and that the road was straight at the place of accident. p.w.3 claims to be another eye witness to the accident. according to him, he was traveling in the same bus which is involved in the accident. his evidence shows that he was sitting in the front seat and the driver of the bus was driving the bus in a rash and negligent manner and that the bus went towards its right side i.e., towards wrong side and dashed against the motor cycle of the deceased. he had also admitted that he was not examined by the police. it is not necessary that all the persons who had witnessed the accident must be examined by the police and the evidence of such witnesses need not be discarded merely because they are not examined by the police. the evidence of such witnesses has to be appreciated and can be accepted if the same is inspiring confidence.13. r.w.1 is the driver of the bus. according to r.w.1 at about 9.00 p.m., while he was driving the bus from manubolu and when he reached near palm oil factory, he noticed one mini lorry stationed on the left side of the road. according to him, on seeing the same he was proceeding slowly and while so the deceased, who was coming in opposite direction on a scooter, tried to overtake the stationed mini lorry and in that process the deceased hit the stationed mini lorry and fell down on the road and came under the right side back wheels of the bus. he further deposed that though he reported the matter to the police, but the police did not register any case on his report. r.w.1 admitted that the police registered a case and filed charge sheet against him.14. there is nothing on record to show that r.w.1 tried to give a report to the police. as far as the theory put forth by r.w.1 about the stationed mini lorry is concerned, there is no evidence except the self supporting evidence of r.w.1. p.w.2 has categorically deposed that he did not observe any mini lorry at the place of accident. no suggestion was given to p.w.3 with regard to parking of mini lorry. no efforts were made to examine the driver and cleaner of the said mini lorry. the contents of ex.a-1 and a-3 the copies of fir and charge sheet also do not support that theory. the evidence of p.ws.2 and 3 clearly shows that there is no involvement of any other vehicle as alleged by r.w.1. the evidence of p.w.3 further shows that the deceased was proceeding on the left side of the road and whereas r.w.1 himself moved the bus towards wrong side and dashed against the scooter. thus, the claimants have established that the accident occurred due to rash and negligent driving of the bus driver. we do not find any infirmity in the finding of the tribunal and this point is answered accordingly.15. point no. 2: the case of the claimants is that the deceased was working as a marine engineer and earning 1924 us dollars per month at the time of accident. the deceased had obtained number of certificates of competency as marine engineer. the deceased had completed his b.e (mech) from andhra university in 1990. he had obtained advanced fire fighting certificate from the shipping corporation of india limited in 1993 (ex.a-7) and first aid at sea certificate from marine medical institute, bombay in 1995, vide ex.a-8. he had completed marine engineering training sardwich course from eastcoast marine engineering works in 1991. he had also obtained licence of competence to merchant marine officer from the republic of liberia under ex.a-10. he underwent training course in 'basic fire fighting' and 'survival at sea' from training ship 'rahaman' in 1991 under exs.a-11 and a-12. he had also obtained first aid at sea certificate from the ministry of shipping and transport in 1993. the certificates also show that his ability and conduct were assessed as good and sobriety as strictly sober.16. as far as the income of the deceased is concerned exs.a-15, a-16, a-17 and a-18 for the months of january to april 1996 show that he was getting a total salary of 1924 us dollars. ex.a-19 shows that he earned 1983 us dollars in may 1996. ex.a-20 shows that he earned 2022 us dollars in june 1996. ex.a-21 shows that he earned 693.57 us dollars in july 1996. ex.a-22 shows that he was appointed at a salary of 1924 us dollars per month by bergesen as company. ex.a-31 shows that the deceased was earning 944.53 us dollars in december 1993 and his monthly salary was 435 us dollars in 1994. ex.a-33 shows that his total monthly earnings were 231.32 us dollars in march 1995. the other documents are passports etc., of the deceased. according to p.w.1, the deceased went on voyage for three times and he used to be on voyage for six to ten months in a year. it is also her case that the deceased would have become a captain, had he lived. according to her, nris were not levied income tax in usa. her evidence also reveals that she has not purchased any property with the amount sent by the deceased but they were discharging their debts. p.w.4 is a marine engineer, who worked in barber ship management company on three occasions on contract basis from 1991 to december 1993. his evidence shows that after fourth engineer, one may become third engineer and then second engineer and then a chief engineer. according to him there will be no tax on the salary of marine engineers. according to him when an employee deposits the amount in indian banks no tax is levied if the deposit is more than 180 days. he further deposed that if such engineers work for more than 181 days, they get nri status. he has admitted that the service period was mentioned as 12 months in ex.a-22. he has also admitted that the possibility of deceased retiring as fourth engineer cannot be ruled out. according to him, the company will bear voyage and other miscellaneous expenses of marine engineer. p.w.5 is working as general manger in barber ship management limited, bombay since 1993. according to him, the deceased joined in their company on 7th june 1991 and sailed as trainee engineer from 1991 to 1992 and as fourth engineer from 25th july 1993 to 23rd december 1993 and also worked as trainee engineer from 12-6-1994 to 2-3-1995. according to him, while the deceased was working in the second shift he was earning 1212 us dollars and in third shift he was earning 435 us dollars per month. according to him ex.a-34 was issued by their company. he has also deposed that all the expenses during the ship period will be paid by the company. as far as payment of income tax is concerned this witness says that he cannot say whether the deceased was exempted from income tax or not. he further admitted that payment of salary varies from ship to ship.17. from the above evidence, it is clear that the income of a marine engineer depends upon the agreement entered with the company and the ship on which he had to work. it also appears that there will be fluctuations in the income of the marine engineers and they will be working from six months to nine months in a year. of course, the income of the deceased appears to be increasing from time to time, but on certain occasions, he appears to have worked for less than 600 us dollars in a month. there is no evidence to show how much the deceased would have earned when he was not on voyage. it also appears that the job of a marine engineer is a hazardous job and may result in health problems. the several tests which a marine engineer has to undergo would show the same. in view of the nature of j6b the deceased was doing and uncertainty of the income, we consider it just and reasonable to take his income at rs. 1500 us dollars per month, which comes to 18000 us dollars per year. since the deceased was not doing any permanent job, the question of making addition to his income does not arise. as per the guidelines given in the decision reported in sarla verma v. delhi transport corporation 2009 (4) scj 91 : 2009 alc 1298 : 2009 (3) supreme 487, addition to the income is applicable in a case where the deceased was on a permanent job. as far as statutory deductions are concerned, the evidence is not clear. the tribunal deducted 30% towards income tax. no material is shown to take a different view. the same appears to be reasonable. if 30% is deducted towards income tax the net income of the deceased comes to 12600 us dollars per year. as far as deductions towards personal expenses are concerned, the supreme court in sarla verma's case (supra) observed that the deductions towards personal and living expenses of the deceased should be 1/3 where the number of dependents family members is 2 to 3 and 1/4 where the number of dependents family members is 4 to 6. in this case there are four family members in the family of the deceased. however, the principles envisaged in sarla verma's case (supra) cannot be made applicable to the case on hand since the deceased was not residing along with the family members and he was residing at abroad. as per the finding of the tribunal, the deceased was staying at luxurious places by spending more amount. it has also come in the evidence that the company used to bear voyage and other miscellaneous expenses of the deceased. therefore, deduction of 50% towards personal expenses by the tribunal is not justified. as per the above referred judgment of the supreme court, the father of the deceased i.e., the 3rd claimant cannot be treated as dependant of the deceased. in the above circumstances, if 1/3rd is deducted towards personal expenses of the deceased the same would be just and reasonable, and accordingly, if 1/3rd is deducted from the income of the deceased the loss of contribution to the family comes to 8400 us dollars per year (12600 x 1/3). the tribunal applied the multiplier '13' for calculating the loss of dependency of wife and child by taking the age of the deceased as 29 years as on the date of accident and the multiplier '7' for calculating the loss of dependency of mother of the deceased by taking her age as 45 years as on the date of filing petition, but as per the sarla verma's case (supra) the appropriate multiplier that would be applied is '17', and if the same is applied, the total loss of dependency comes to 1,42,800 us dollars (8400 x 17). as far as the conversion rate of the dollar is concerned, ex.x-1 shows that the rate of dollar was fluctuating and it was between rs. 38/- to rs. 47-50 during the relevant period. the tribunal, considering the value of the dollar at rs. 30/- in the year 1995, has taken the exchange value of the dollar at rs. 33/-. we are not inclined to defer with the opinion of the tribunal. therefore, the exchange value of the dollar is taken as rs. 33/- and accordingly the total loss of dependency comes to rs. 47,12,400/- (1,42,800 x 33). the claimants are also entitled to a sum of rs. 5,000/- towards loss of estate and rs. 5,000/- towards funeral expenses. the first claimant is entitled to rs. 10,000/- towards loss of consortium. thus, the total compensation comes to rs. 47,32,400/-. accordingly, the total compensation is enhanced from rs. 34,35,600 to rs. 47,32,400/-. the respondent is directed to deposit the enhanced amount of compensation within two months, failing which, in view of the prevailing rate of interest and in the light of the sarla verma's case (supra), the claimants would be entitled to interest @ 6% p.a., till the date of realization. the amounts already deposited shall be given credit to.18. as per the judgment of the supreme court in sarla verma's case (supra), only mother of the deceased would be considered as dependant. as per the apportionment made by the tribunal, claimants 1 and 2 are entitled to rs. 21,84,600/- and rs. 10,00,000/- respectively and further the first claimant is exclusively entitled to rs. 15,000/- in addition to the above amount towards consortium. the 4th claimant is entitled to rs. 2,36,000/-.19. as per the order of this court in c.m.p. no. 17621 of 2003 in c.m.a. no. 2922 of 2003, dated 14-08-2003, interim stay was granted on condition of the appellant depositing 30% of the amount awarded along with proportionate interest and costs. as per the orders dated 12-10-2004 in c.m.p. no. 5489 of 2004 and c.m.p. no. 17621 of 2003 the claimants were permitted to withdraw 30% of the amount in proportion to their share from the deposited amount.20. in view of the same, out of the enhanced amount of rs. 12,96,800/- (rs.47,32,400 - rs. 34,35,600/-), the first claimant will be entitled to rs. 4,96,800/-, which includes rs. 10,000/- towards loss of consortium, the second claimant will be entitled to rs. 7,00,000/- and the fourth claimant will be entitled to rs. 1,00,000/-. the amount awarded to the minor second claimant shall be kept in f.d. till he attains majority. the fourth claimant shall be permitted to withdraw her share. the first claimant shall be permitted to withdraw her share. the first claimant shall be permitted to withdraw rs. 2,00,000/- and the entire share of the minor second claimant and the remaining amount of the first claimant shall be kept in f.d. the first claimant shall be entitled to withdraw periodical interest on her share deposited in f.d and also on the share of her minor son till he attains majority.21. with the above modifications, both the c.m.as are disposed of. however, in the circumstances, no costs.
Judgment:

B. Chandra Kumar, J.

1. Since both these C.M.As i.e., C.M.A. No. 2664 of 2003 filed by the claimants seeking enhancement of compensation, and C.M.A. No. 2922 of 2003 filed by the A.P.S.R.T.C challenging awarding of compensation in favour of the claimants, arise out of the order dated 25-04-2003 made in O.P. No. 404 of 1997 by the Chairman, Motor Accidents Claims Tribunal, Nellore (Principal District Judge, Nellore) (hereinafter referred as 'the Tribunal'), they are being disposed of by this common judgment.

2. The parties will be referred as they are arrayed before the Tribunal for the sake of convenience.

3. This case is yet another example, to show how a single incident destroys all the hopes and aspirations of a well settled family. The first claimant had lost her husband P. Surendra Reddy, who was aged about 29 years on the date of accident (hereinafter referred as 'the deceased'). The first claimant was aged only 20 years and the second claimant was aged about four months on the date of accident. The third claimant is the father and the fourth claimant is the mother of the deceased. The deceased was working as Marine Engineer, who had obtained licence to work as Merchant Marine Officer from several countries. He was under the employment of BERGESEN: As Company working from 01-12-1995 on a monthly remuneration of 1924 US Dollars equivalent to Rs. 71,088/- and maintaining his family very decently. As per the terms and conditions of employment, his employment was with the said Company till 21-01-2001. During the relevant period, he came to his native place Kattuvappalli village, Manubolu Mandal, Nellore District to spend the leave period with his family. On 25-05-1997 while the deceased was proceeding to his village from Nellore on a Bajaj Scooter and when he reached near Palm Oil Factory, Manubolu on G.N.T. Road and proceeding along the left side of the road, the offending RTC bus bearing No. AP 9Z 6511, being driven by its driver G. Sudhakar Raju in a rash and negligent manner at high speed came from opposite direction i.e., from Gudur side and dashed against the Scooter and due to the impact of the accident, the deceased sustained grievous injuries and died on the spot. Because of the premature death of the deceased, his family lost their sole earning member. The claimants have claimed total compensation of Rs. 95,65,000/- against the A.P.S.R.T.C, the owner of the bus.

4. The sole respondent-A.P.S.R.T.C resisted the claim of the claimants and denied the averments of the claimants with regard to the age, occupation and income of the deceased. It is also denied that the accident occurred due to rash and negligent driving of the bus driver. It is further averred that the deceased himself tried to over take one mini lorry stationed by the side of the road and in that process hit the said mini lorry and fell down on the road and came underneath the wheels of the bus and that the deceased himself was negligent and responsible for the accident. It is also averred that the claim of the claimants is highly excessive, exorbitant and illusionary.

5. The Tribunal framed the following issues.

1. Whether the alleged accident occurred due to the rash and negligent driving of the vehicle AP 9Z/6511 by its driver?

2. Whether the petitioners are entitled to compensation and if so, to what amount?

3. To what relief?

6. On behalf of the claimants, the first claimant was examined as P.W.1 and P.Ws.2 to 5 were also examined and Exs.A-1 to A-42 were marked. On behalf of the respondent-A.P.S.R.T.C, the driver of the bus was examined as R.W.1, but no documents were marked. The letter written by the State Bank of India, Nellore, to the District Judge, Nellore informing the rate of US Dollar was marked as Ex.X-1.

7. The Tribunal, on appreciation of the oral and documentary evidence, held that the accident occurred due to the rash and negligent driving of the bus driver. On issue No. 2, the Tribunal determined the income of the deceased at 1924 US Dollars, but however deducted 50% of the same towards his personal expenses and determined the loss of dependency at Rs. 1000 US Dollars per month i.e., 12,000 US Dollars per year. The Tribunal deducted 30% towards income tax and the loss of earnings were determined at 8400 US Dollars per year. The Tribunal taking the age of the deceased as 29 years and applying the multiplier '13' for calculating the loss of dependency of wife and child and taking the age of the mother as 45 years and applying the multiplier 7' for calculating the loss of dependency of mother of the deceased, determined the loss of dependency of the wife and child at 96,200 Dollars 7400 x 13) and the loss of dependency of the mother of the deceased at 7000 Dollars (1000 x 7 respectively. The conversion rate of the Dollar was taken at Rs. 33/- and accordingly the loss of dependency of the wife and child was estimated at Rs. 31,74,600/- and the loss of dependency of the mother was estimated at Rs. 2,31,000/-. The claimants were also awarded Rs. 15,000/- towards loss of estate and the first claimant was awarded Rs. 15,000/- towards loss of consortium. Thus, total compensation awarded to claimants 1, 2 and 4 is a sum of Rs. 34,35,600/-.

8. Sri M. Venkatanarayana, learned Counsel for the claimants, submitted that as on the date of the accident the deceased was aged about 29 years, working as a Marine Engineer and he had a bright future and his salary would have been increased in his future career and that the Tribunal has not considered the future prospects of the deceased. It is also submitted that the Tribunal committed an error in deducting 50% towards personal expenses of the deceased instead of deducting 1/3 towards his personal expenses. Learned Counsel has relied on a decision reported in United India Insurance Co. Ltd. v. Patricia Jean Mahajan : 2002 (2) An.W.R. 228 (SC) : 2002 ACJ 1441, wherein the Supreme Court considered the claim of the legal heirs of American national of Indian origin, who died in Motor accident in India. He has also relied on a decision of this Court reported in Bhagawan Das v. Mohd. Arif 1987 ACJ 1052, wherein the principles of assessment of pecuniary damages have been enunciated.

9. Sri K. Srinivasa Rao, learned Standing Counsel for the A.P.S.R.T.C, argued that the Tribunal failed to consider that the accident occurred due to the contributory negligence of the deceased and that the bus driver was not negligent in driving the bus. As far as taking the income of the deceased is concerned, his main submission is that the Tribunal committed an error in determining the income of the deceased and did not consider the circumstances that the deceased was on duty for only six months or nine months in a year and that there is no evidence to show how much he would have earned during the period he was not on duty. It is also his submission that the income of the deceased was fluctuating depending on the terms of the agreement entered with the Company, in which he was working. It is also submitted that the compensation awarded is excessive.

10. The points that arise for consideration are; (1) Whether the accident occurred due to rash and negligent driving of the driver of the bus or whether there is any contributory negligence of the deceased? And (2) Whether the awarding of compensation is on higher side or whether the claimants are entitled for enhanced compensation?

11. Point No. 1: The specific claim of the claimants is that on 25-05-1997 at about 9.00 P.M. while the deceased was proceeding from Nellore to his village on a Bajaj Scooter along the left side of the GNT road, and when he reached near Palm Oil Factory, Manubolu, the RTC bus coming from opposite direction being driven by its driver in a rash and negligent manner at high speed and dashed the scooter, as a result of which the deceased sustained grievous injuries and died on the spot. P.W.1 is the wife of the deceased. She is not an eye-witness to the accident. However, Ex.A-1 certified copy of FIR in Crime No. 45 of 1997 of Manubolu Police Station, Ex.A-2 certified copy of Post-mortem certificate and Ex.A-3 certified copy of the charge sheet in C.C. No. 213 of 1997 on the file of the Judicial Magistrate of First Class, Gudur, which are relevant for this issue have been marked in her evidence.

12. P.Ws. 2 and 3 have been examined as eye witnesses to the accident. According to P.W.2, on the date of accident, he went in search of his cattle, which were missing and while he was proceeding towards Nellore side, he witnessed the accident. According to him, the deceased who was coming on a Scooter from Nellore side was crushed underneath the bus at about 9.00 P.M. and that he was at a distance of 30 feet from the place of accident. His evidence further shows that the bus was driven at high speed and there were skid marks on the road and the dead body of the deceased was fallen on the center of the road and the Scooter was fallen on the right side of the road. His village is at a distance of 1 1/2 KMs from the place of accident. During the cross-examination, P.W.2 deposed that since it was dark, he cannot say who was at fault and that he was not examined by the police. He further deposed that he did not observe any mini lorry stationed on the left side of the road margin and that the road was straight at the place of accident. P.W.3 claims to be another eye witness to the accident. According to him, he was traveling in the same bus which is involved in the accident. His evidence shows that he was sitting in the front seat and the driver of the bus was driving the bus in a rash and negligent manner and that the bus went towards its right side i.e., towards wrong side and dashed against the motor cycle of the deceased. He had also admitted that he was not examined by the police. It is not necessary that all the persons who had witnessed the accident must be examined by the police and the evidence of such witnesses need not be discarded merely because they are not examined by the police. The evidence of such witnesses has to be appreciated and can be accepted if the same is inspiring confidence.

13. R.W.1 is the driver of the bus. According to R.W.1 at about 9.00 p.m., while he was driving the bus from Manubolu and when he reached near Palm Oil Factory, he noticed one mini lorry stationed on the left side of the road. According to him, on seeing the same he was proceeding slowly and while so the deceased, who was coming in opposite direction on a Scooter, tried to overtake the stationed mini lorry and in that process the deceased hit the stationed mini lorry and fell down on the road and came under the right side back wheels of the bus. He further deposed that though he reported the matter to the police, but the police did not register any case on his report. R.W.1 admitted that the police registered a case and filed charge sheet against him.

14. There is nothing on record to show that R.W.1 tried to give a report to the police. As far as the theory put forth by R.W.1 about the stationed mini lorry is concerned, there is no evidence except the self supporting evidence of R.W.1. P.W.2 has categorically deposed that he did not observe any mini lorry at the place of accident. No suggestion was given to P.W.3 with regard to parking of mini lorry. No efforts were made to examine the driver and cleaner of the said mini lorry. The contents of Ex.A-1 and A-3 the copies of FIR and charge sheet also do not support that theory. The evidence of P.Ws.2 and 3 clearly shows that there is no involvement of any other vehicle as alleged by R.W.1. The evidence of P.W.3 further shows that the deceased was proceeding on the left side of the road and whereas R.W.1 himself moved the bus towards wrong side and dashed against the scooter. Thus, the claimants have established that the accident occurred due to rash and negligent driving of the bus driver. We do not find any infirmity in the finding of the Tribunal and this point is answered accordingly.

15. Point No. 2: The case of the claimants is that the deceased was working as a Marine Engineer and earning 1924 US Dollars per month at the time of accident. The deceased had obtained number of certificates of competency as Marine Engineer. The deceased had completed his B.E (Mech) from Andhra University in 1990. He had obtained Advanced Fire Fighting Certificate from the Shipping Corporation of India Limited in 1993 (Ex.A-7) and First Aid at Sea Certificate from Marine Medical Institute, Bombay in 1995, vide Ex.A-8. He had completed Marine Engineering Training Sardwich Course from Eastcoast Marine Engineering Works in 1991. He had also obtained licence of competence to Merchant Marine Officer from the Republic of Liberia under Ex.A-10. He underwent training course in 'basic fire fighting' and 'Survival at Sea' from Training Ship 'Rahaman' in 1991 under Exs.A-11 and A-12. He had also obtained First Aid at Sea Certificate from the Ministry of Shipping and Transport in 1993. The certificates also show that his ability and conduct were assessed as good and sobriety as strictly sober.

16. As far as the income of the deceased is concerned Exs.A-15, A-16, A-17 and A-18 for the months of January to April 1996 show that he was getting a total salary of 1924 US Dollars. Ex.A-19 shows that he earned 1983 US Dollars in May 1996. Ex.A-20 shows that he earned 2022 US Dollars in June 1996. Ex.A-21 shows that he earned 693.57 US Dollars in July 1996. Ex.A-22 shows that he was appointed at a salary of 1924 US Dollars per month by BERGESEN AS Company. Ex.A-31 shows that the deceased was earning 944.53 US Dollars in December 1993 and his monthly salary was 435 US Dollars in 1994. Ex.A-33 shows that his total monthly earnings were 231.32 US Dollars in March 1995. The other documents are passports etc., of the deceased. According to P.W.1, the deceased went on voyage for three times and he used to be on voyage for six to ten months in a year. It is also her case that the deceased would have become a Captain, had he lived. According to her, NRIs were not levied income tax in USA. Her evidence also reveals that she has not purchased any property with the amount sent by the deceased but they were discharging their debts. P.W.4 is a Marine Engineer, who worked in Barber Ship Management Company on three occasions on contract basis from 1991 to December 1993. His evidence shows that after fourth engineer, one may become third engineer and then second engineer and then a chief engineer. According to him there will be no tax on the salary of Marine Engineers. According to him when an employee deposits the amount in Indian Banks no tax is levied if the deposit is more than 180 days. He further deposed that if such engineers work for more than 181 days, they get NRI status. He has admitted that the service period was mentioned as 12 months in Ex.A-22. He has also admitted that the possibility of deceased retiring as fourth engineer cannot be ruled out. According to him, the Company will bear voyage and other miscellaneous expenses of Marine Engineer. P.W.5 is working as General Manger in Barber Ship Management Limited, Bombay since 1993. According to him, the deceased joined in their Company on 7th June 1991 and sailed as Trainee Engineer from 1991 to 1992 and as fourth engineer from 25th July 1993 to 23rd December 1993 and also worked as Trainee Engineer from 12-6-1994 to 2-3-1995. According to him, while the deceased was working in the second shift he was earning 1212 US Dollars and in third shift he was earning 435 US Dollars per month. According to him Ex.A-34 was issued by their Company. He has also deposed that all the expenses during the ship period will be paid by the Company. As far as payment of income tax is concerned this witness says that he cannot say whether the deceased was exempted from income tax or not. He further admitted that payment of salary varies from Ship to Ship.

17. From the above evidence, it is clear that the income of a Marine Engineer depends upon the agreement entered with the Company and the Ship on which he had to work. It also appears that there will be fluctuations in the income of the Marine Engineers and they will be working from six months to nine months in a year. Of course, the income of the deceased appears to be increasing from time to time, but on certain occasions, he appears to have worked for less than 600 US Dollars in a month. There is no evidence to show how much the deceased would have earned when he was not on voyage. It also appears that the job of a Marine Engineer is a hazardous job and may result in health problems. The several tests which a Marine Engineer has to undergo would show the same. In view of the nature of j6b the deceased was doing and uncertainty of the income, we consider it just and reasonable to take his income at Rs. 1500 US Dollars per month, which comes to 18000 US Dollars per year. Since the deceased was not doing any permanent job, the question of making addition to his income does not arise. As per the guidelines given in the decision reported in Sarla Verma v. Delhi Transport Corporation 2009 (4) SCJ 91 : 2009 ALC 1298 : 2009 (3) Supreme 487, addition to the income is applicable in a case where the deceased was on a permanent job. As far as statutory deductions are concerned, the evidence is not clear. The Tribunal deducted 30% towards income tax. No material is shown to take a different view. The same appears to be reasonable. If 30% is deducted towards income tax the net income of the deceased comes to 12600 US Dollars per year. As far as deductions towards personal expenses are concerned, the Supreme Court in Sarla Verma's case (supra) observed that the deductions towards personal and living expenses of the deceased should be 1/3 where the number of dependents family members is 2 to 3 and 1/4 where the number of dependents family members is 4 to 6. In this case there are four family members in the family of the deceased. However, the principles envisaged in Sarla Verma's case (supra) cannot be made applicable to the case on hand since the deceased was not residing along with the family members and he was residing at abroad. As per the finding of the Tribunal, the deceased was staying at luxurious places by spending more amount. It has also come in the evidence that the Company used to bear voyage and other miscellaneous expenses of the deceased. Therefore, deduction of 50% towards personal expenses by the Tribunal is not justified. As per the above referred judgment of the Supreme Court, the father of the deceased i.e., the 3rd claimant cannot be treated as dependant of the deceased. In the above circumstances, if 1/3rd is deducted towards personal expenses of the deceased the same would be just and reasonable, and accordingly, if 1/3rd is deducted from the income of the deceased the loss of contribution to the family comes to 8400 US Dollars per year (12600 x 1/3). The Tribunal applied the multiplier '13' for calculating the loss of dependency of wife and child by taking the age of the deceased as 29 years as on the date of accident and the multiplier '7' for calculating the loss of dependency of mother of the deceased by taking her age as 45 years as on the date of filing petition, but as per the Sarla Verma's case (supra) the appropriate multiplier that would be applied is '17', and if the same is applied, the total loss of dependency comes to 1,42,800 US Dollars (8400 x 17). As far as the conversion rate of the Dollar is concerned, Ex.X-1 shows that the rate of Dollar was fluctuating and it was between Rs. 38/- to Rs. 47-50 during the relevant period. The Tribunal, considering the value of the Dollar at Rs. 30/- in the year 1995, has taken the exchange value of the Dollar at Rs. 33/-. We are not inclined to defer with the opinion of the Tribunal. Therefore, the exchange value of the Dollar is taken as Rs. 33/- and accordingly the total loss of dependency comes to Rs. 47,12,400/- (1,42,800 x 33). The claimants are also entitled to a sum of Rs. 5,000/- towards loss of estate and Rs. 5,000/- towards funeral expenses. The first claimant is entitled to Rs. 10,000/- towards loss of consortium. Thus, the total compensation comes to Rs. 47,32,400/-. Accordingly, the total compensation is enhanced from Rs. 34,35,600 to Rs. 47,32,400/-. The respondent is directed to deposit the enhanced amount of compensation within two months, failing which, in view of the prevailing rate of interest and in the light of the Sarla Verma's case (supra), the claimants would be entitled to interest @ 6% p.a., till the date of realization. The amounts already deposited shall be given credit to.

18. As per the judgment of the Supreme Court in Sarla Verma's case (supra), only mother of the deceased would be considered as dependant. As per the apportionment made by the Tribunal, claimants 1 and 2 are entitled to Rs. 21,84,600/- and Rs. 10,00,000/- respectively and further the first claimant is exclusively entitled to Rs. 15,000/- in addition to the above amount towards consortium. The 4th claimant is entitled to Rs. 2,36,000/-.

19. As per the order of this Court in C.M.P. No. 17621 of 2003 in C.M.A. No. 2922 of 2003, dated 14-08-2003, interim stay was granted on condition of the appellant depositing 30% of the amount awarded along with proportionate interest and costs. As per the orders dated 12-10-2004 in C.M.P. No. 5489 of 2004 and C.M.P. No. 17621 of 2003 the claimants were permitted to withdraw 30% of the amount in proportion to their share from the deposited amount.

20. In view of the same, out of the enhanced amount of Rs. 12,96,800/- (Rs.47,32,400 - Rs. 34,35,600/-), the first claimant will be entitled to Rs. 4,96,800/-, which includes Rs. 10,000/- towards loss of consortium, the second claimant will be entitled to Rs. 7,00,000/- and the fourth claimant will be entitled to Rs. 1,00,000/-. The amount awarded to the minor second claimant shall be kept in F.D. till he attains majority. The fourth claimant shall be permitted to withdraw her share. The first claimant shall be permitted to withdraw her share. The first claimant shall be permitted to withdraw Rs. 2,00,000/- and the entire share of the minor second claimant and the remaining amount of the first claimant shall be kept in F.D. The first claimant shall be entitled to withdraw periodical interest on her share deposited in F.D and also on the share of her minor son till he attains majority.

21. With the above modifications, both the C.M.As are disposed of. However, in the circumstances, no costs.