Bandyala Anthaiah , Anthy Reddy Vs P. Srinivas

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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FRIDAY, THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND TEN

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HON’BLE SRI JUSTICE G. BHAVANI PRASAD

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C.M.A.Nos.482 of 2001 and 2160 of 2001

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C.M.A.No.482 of 2001

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Between: Bandyala Gouthami and another ..Appellants AND P. Srinivas and 6 others .. Respondents C.M.A.No.2160 of 2001 Between: Bandyala Anthaiah @ Anthy Reddy and 2 others ..Appellants AND P. Srinivas and 5 others .. Respondents COMMON JUDGMENT:

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The award in O.P.No.483 of 1998 on the file of the Motor

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Accidents Claims Tribunal-cum-III Additional District Judge, Warangal, dated 12-01-2001 led the petitioners therein to file C.M.A.No.482 of 2001 and respondents 5 to 7 therein to file C.M.A.No.2160 of 2001.

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The factual background for the appeals is that B. Basava Reddy, Sub-Inspector of Police, Rebbena Mandal, Adilabad District, was on patrolling duty and was going on the motor cycle Hero Honda No.AP 9P 1720 along with Head Constable 271. The van No.AP 5U 551 driven by the 1^st respondent, owned by the 2^nd respondent, and insured with the 3^rd respondent, came in opposite direction rashly and negligently and dashed against the motorcycle. Basava Reddy was seriously injured and was shifted to Government Hospital, Bellampalli and died on 6-4-1998 while undergoing treatment. The police registered Cr.No.42 of 1998 against the 1^st respondent and prosecuted him. The 1^st appellant in C.M.A.No.482 of 2001 is the wife and the appellants in C.M.A.No.2160 of 2001 are the parents and brother of Basava Reddy and the 2^nd appellant in C.M.A.No.482 of 2001 is claimed to be the adopted son of Basava Reddy and the 1^st appellant therein. The appellants in C.M.A.No.482 of 2001 sought for a compensation of Rs.12,00,000/- with interest and costs. The owner of the van contested the claim contending that there was no rash and negligent driving by the 1^st respondent and that the vehicle was insured with respondents 3 and 4. The insurer, represented by respondents 3 and 4, contested the claim denying the claims of the claimants and contending that the accident was not reported to it by the owner of the vehicle. While the insurance of the vehicle is admitted, the negligence of the deceased was stated to be the cause for the accident and the compensation claimed was stated to be excessive.

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The parents and brother, the appellants in C.M.A.No.2160 of 2001, claimed that they were also dependents of Basava Reddy with the brother being unemployed and unmarried. A suit for partition in O.S.No.33 of 1998 on the file of III Additional District Judge, Warangal, was filed on 14-05-1998 and is pending. The 2^nd appellant in C.M.A.No.482 of 2001 was never adopted during the life time of Basava Reddy and hence, they sought for apportionment of the compensation to them also and denial of compensation to the 2^nd appellant in C.M.A.No.482 of 2001.

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The Tribunal framed issues on the responsibility for the accident and entitlement of the parties to compensation, apart from the adoption of the 2^nd claimant.

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During the enquiry, PWs.1 and 2 and RW.1 were examined and Exs.A.1 to A.9 and B.1 were marked.

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The Tribunal rendered the impugned award accepting the evidence of the wife as PW.1, corroborated by Ex.A.1-FIR, Ex.A.3-Inquest report and Ex.A.4-Charge sheet about the manner of the accident and considered the evidence of PW.2, who was travelling along with the deceased on the motorcycle at the relevant time and who gave the complaint to the police, to have satisfactorily corroborated the claims of PW.1. Therefore, the Tribunal concluded that the accident occurred only due to the rash and negligent driving of the van by its driver. The Tribunal took the monthly salary of the deceased as Rs.4,738/- and his age as 28 years with reference to the Post Mortem certificate. The multiplier adopted was 18 and the loss of dependency was calculated at Rs.6,82,560/- after deducting 1/3^rd of the probable income from the estimate, towards personal expenses, which the deceased would have incurred had he been alive. Referring to

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Gujarat State Transport Corporation, Ahmedabad v. Ramanbai Prabhakbai and another (AIR 1987 Supreme Court 1690), the Tribunal considered the brother also to be entitled to apportionment of the compensation and observed that he was not in any gainful employment in spite of getting married also and insofar as the 2^nd claimant is concerned, the Tribunal felt that the truth or otherwise of the adoption has to be decided in O.S.No.33 of 1998 and the compensation being awarded herein in his favour should be given to the wife herself, if he were not proved to be the adopted son. The Tribunal consequently awarded Rs.6,82,560/as compensation apportioning the same at Rs.82,560/- to the brother, Rs.1,00,000/- each to the father and mother and Rs.1,00,000/- to the adopted son with the balance of Rs.3,00,000/to the wife. The Tribunal also awarded Rs.15,000/- towards loss of consortium to the wife and proportionate costs with advocate’s fee of Rs.1,000/-.

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The claimants contended in C.M.A.No.482 of 2001 that the 7^th respondent was married with independent income to maintain his family and the parents or the brother were not dependent on the deceased having separate incomes from their agricultural lands. They also contended that the salary of the deceased was Rs.5,242/- per month as certified in Ex.A.7 and the income of the deceased at Rs.20,000/- per annum from agriculture was unjustifiably ignored. No compensation was granted towards pain and shock or loss of expectation of life etc., and hence, they desired that the entire compensation as claimed be awarded to them.

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The appellants in C.M.A.No.2160 of 2001 pleaded that the future prospects of the deceased were not taken into account by the Tribunal and even the salary of Rs.5,242/- was not

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considered. They, therefore, desired enhancement of compensation. They also claimed to have filed cross-objections in C.M.A.No.482 of 2001 questioning the apportionment of the compensation between the dependents with a higher percentage of the same being awarded to the wife and the so-called adopted son.

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C.M.A.No.2160 of 2001 was dismissed for default against respondents 1 and 2 i.e. the driver and owner of the offending vehicle vide the orders of this Court dated 27-02-2007.

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Sri A. Ravinder, learned counsel for the appellants in C.M.A.No.482 of 2001 and Sri M. Venkatram Reddy, learned counsel for the appellants in C.M.A.No.2160 of 2001 and Sri R. Venkat Rao, learned standing counsel for the insurer are heard. The points that arise for consideration in the appeals are about the just and adequate compensation to be awarded to the dependents of Basava Reddy and the manner in which it has to be apportioned?

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Insofar as the conclusions of the Tribunal about the responsibility for the accident being with the driver of the offending vehicle due to his rash and negligent driving is concerned, the same has become final in the absence of any challenge to the same by any of the parties. Similarly, Ex.B.1-Insurance policy was filed by the insurer itself before the Tribunal and therefore, the liability of the driver, owner and insurer of the offending vehicle to justly and adequately compensate the dependents of Basava Reddy cannot be in dispute.

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Therefore, what remains to be considered is only about the quantum of compensation and apportionment of the same among the dependants.

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Sarla Verma and others v. Delhi Transport

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Corporatio n^[1] is relied on by the learned counsel for the appellants in C.M.A.No.482 of 2001, in which the Apex Court laid down general principles concerning assessment and grant of compensation in motor accident cases. The Apex Court gave guidelines about arriving at the multiplier for calculating loss of dependency to which a sum of Rs.5,000/- to Rs.10,000/- should be added as loss to estate. The Apex Court also noted that Rs.5,000/- to Rs.10,000/- can be awarded to the surviving widow towards loss of consortium, but no amount should be awarded towards pain, suffering or hardship to the legal heirs. The funeral expenses, cost of transportation of the body and cost of treatment should also be added and the Apex Court laid down that an addition of 50 per cent of the actual salary can be considered towards future prospects, if the deceased had a permanent job and was below 40 years. The Apex Court also laid down that percentage of deduction towards personal and living expenses is not an inflexible rule and merely offers a guideline and dependent on the number of dependants and special features of each case, such deduction can be varied between 1/3^rd and 1/4^th of the probable income of the deceased. The Apex Court adopted a table for guidance for arriving at a proper multiplier and awarded interest only at 6% per annum on the compensation from the date of claim petition till the date of realization.

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The principles laid down in the precedent should undoubtedly guide the calculation of the compensation to be awarded herein. The salary of the deceased was shown to be Rs.5,242/- as per Ex.A.7 Certificate issued by the Department and there was absolutely no reason for the Tribunal to not accept Ex.A.7 as the basis for the calculation of the compensation,

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except that in the claim petition it was mentioned by the claimants that the monthly salary of the deceased was Rs.4,738/-. The Tribunal took that figure as the net salary but for the purpose of calculating the compensation, even if there were some deductions in the salary of the deceased towards compulsory deductions for Government servants like Provident Fund, Government Insurance etc., they could not have been excluded from consideration for the purpose of calculation for compensation, when the deceased would have contributed at least at the same rate towards such funds, which could have been realized for the benefit of himself and his family on his retirement on superannuation. In any view, in the absence of anything on record to show including Ex.A.7 that the deceased was receiving only Rs.4,738/-, but not Rs.5,242/-, the compensation should be calculated only on the basis of Ex.A.7. The deceased was aged 28/29 years by the time of his death and on the principles laid down in Sarla Verma and others v. Delhi Transport Corporation (stated supra), 50 per cent of his salary should be computed towards his future prospects as he was a permanent Sub-Inspector of Police in the State Government by the time of his death. Though it is true that the deduction towards personal expenses could have varied between 1/3^rd and 1/4^th , taking into account the normally adopted deduction at 1/3^rd towards personal expenses, which the deceased would have incurred had he been alive, the same can be followed taking into account the number of dependants and other facts and circumstances of the case including the fact that the family appeared to be owning agricultural properties, from the very claim made by the claimants about the deceased getting Rs.20,000/- per annum from his share of agricultural income. If so, the monthly income of the deceased should be arrived at Rs.7,863/(Rs.5,242/- + Rs.2,621/-) and after deducting 1/3^rd towards personal expenses, the loss of dependency for the dependants

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would be again Rs.5,242/- per month. As per Sarla Verma and others v. Delhi Transport Corporation (stated supra), the appropriate multiplier applicable would be 17 and the loss of dependency would, therefore, come to Rs.10,69,368/-. In addition to that, Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral and other miscellaneous expenses can be awarded in addition to loss of consortium at Rs.15,000/- awarded already to the wife. If so, the total compensation payable comes to about Rs.10,99,368/- and it can be rounded off to Rs.11,00,000/-.

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It is represented by the learned counsel for the appellants in both the cases that O.S.No.33 of 1998 ended in a decree in favour of the parents in which the 2^nd claimant was not accepted by the civil Court to be the adopted son of Basava Reddy and the 1^st claimant, against which the appeal at the instance of 1^st plaintiff is pending in A.S.No.74 of 2007. Under such circumstances, as the said issue had not yet become final and if it is the subject of consideration in the appeal, a similar direction as had been given by the Tribunal specifying the compensation to which the allegedly adopted son is entitled and directing the same to be paid to the wife herself in case of his being found to be not the adopted son, can be continued in these appeals also.

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Insofar as the 7^th respondent to the claim, who is the brother, is concerned, again Sarla Verma and others v. Delhi Transport Corporation (stated supra) is attempted to be depended upon to claim the 7^th respondent to be disentitled to any compensation. But, what the Apex Court had observed about the parents or brothers and sisters was specifically with reference to the evidence available in each case. It was specifically stated that in the absence of evidence to the contrary, brothers and sisters

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will not be considered as dependants, because they will either be independent and earning or married or dependent on the father. The Apex Court also recognized a situation of a large family of the deceased being dependent on his income including large number of younger non-earning sisters or brothers. In the present case, the Tribunal had arrived at a finding of fact that the 7^th respondent was not in any gainful employment by the time of the death of Basava Reddy and even his marriage appeared from the material on record to have taken place subsequent to the claim petition as he was stated to be unmarried in the counter filed by the parents and the brother. The parents and brother were found to be dependent upon late Basava Reddy by the Tribunal and there is no need to disturb the said finding of fact in the appeals in the absence of any strong reasons or positive evidence.

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If so, the compensation of Rs.11,00,000/- has to be justly and reasonably apportioned between both the claimants and respondents 5 to 7 to the claim petition. Keeping in view the relevant facts and circumstances including the ages and economic conditions of the parties, apportioning the compensation of Rs.11,00,000/- including loss of consortium to the 1^st claimant can be by awarding a sum of Rs.6,00,000/- to the wife including loss of consortium of Rs.15,000/-, Rs.1,00,000/- to the 2^nd claimant, which sum will be paid to the 1^st claimant herself in case of his being ultimately found to be not the adopted son, and Rs.1,50,000/- each to the parents and Rs.1,00,000/- to the brother. The enhanced portion of compensation will carry interest at 6% per annum from the date of petition till the date of payment or deposit or realization and proportionate costs also. The impugned award has to be modified accordingly.

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Therefore, the award dated 12-01-2001 in O.P.No.483 of

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1998 on the file of Motor Accidents Claims Tribunal-cum-III Additional District Judge, Warangal, is modified by awarding a compensation of Rs.11,00,000/- including Rs.15,000/- towards loss of consortium to the 1^st claimant with interest on Rs.6,97,560/- at 12% per annum and the rest of compensation at 6% per annum from the date of petition till the date of payment or deposit or realization with proportionate costs and the said compensation would be apportioned between the claimants and respondents 5 to 7 at Rs.6,00,000/- to the 1^st claimant, Rs.1,00,000/- to the 2^nd claimant, Rs.1,50,000/- each to respondents 5 and 6 and Rs.1,00,000/- to the 7^th respondent with the 1^st claimant being entitled to receive the compensation of Rs.1,00,000/- awarded to the 2^nd claimant in the event of 2^nd claimant being found to be not the adopted son of Basava Reddy and the 1^st claimant in A.S.No.74 of 2007 on the file of the High Court of Andhra Pradesh and no directions need be given at this distance of time about the disbursement of the compensation to the 1^st claimant and respondents 5 to 7, while the amount of Rs.1,00,000/- awarded to the 2^nd claimant shall be kept in fixed deposit by the Tribunal on payment or deposit by the insurer or owner or the driver till the final decision in A.S.No.74 of 2007 and subject to the same, both the appeals are ordered accordingly without costs.

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_____________________ G. BHAVANI PRASAD, J

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Date: 20-08-2010

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Ksn

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[1] 2009 Accident Claims Journal 1298

Bandyala Anthaiah , Anthy Reddy v. P. Srinivas

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Bandyala Anthaiah , Anthy Reddy v. P. Srinivas

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