APHC010751522013 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3365] TUESDAY ,THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 454/2013 Between: The Oriental Insurance Co Ltd ...APPELLANT AND Arigela Ratna Kumari 6 Ors and Others ...RESPONDENT(S) Counsel for the Appellant: 1. A JAYANTHI Counsel for the Respondent(S): 1. VINOD KUMAR TARLADA (SC FOR APSRTC) 2. The Court made the following: 2 Dr.VRKS,J MACMA.No.454 of 2013 THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR MACMA No. 454 of 2013 JUDGMENT: 1. This appeal under section 173 of the Motor Vehicles Act, 1988 is filed by the appellant/ Insurance company impugning the order dated 20.09.2012 of the learned Chairman, Motor Accidents Claims Tribunal – Cum – I Additional District Judge, East Godavari at Rajahmundry in MVOP.No.273 of 2011. 2. The following facts are required to be noticed: - A bus bearing registration No. AP 5 W 4924 was owned by Smt. P.Lakshmi Narasamma. She got it insured with the Oriental Insurance Company Limited under Ex.B1 insurance policy. She gave the bus on hire to APSRTC. At the material point of time, Sri K.Chinnodu was driving the said bus. Sri Vijendra Rao aged 49 years was a secondary grade school teacher. On 27.07.2010 at about 5.00 pm, he was standing on the side of the road near Gandhi Statue center Bypass Road, Rajahmundry. The offending bus came at high speed and by the rash or negligent driving of its driver, it went, and dashed Sri Vijendra Rao and its back wheels ran over his head leading to his spot death. He survived by his 3 Dr.VRKS,J MACMA.No.454 of 2013 wife and two adult sons and one married adult daughter. These four claimants filed MVOP.No.273 of 2011 under section 166 of the Motor Vehicles Act, 1988 praying for a compensation of Rs.44,00,000/-. The driver and owner of the offending bus/R1 and R2 therein did not choose to appear and contest. R3 therein/ insurance company filed a counter questioning the correctness of the narration made in the claim petition. It further contended that the compensation claim was excessive and at the material point of time, the bus was under the control of APSRTC and therefore it was the owner and accordingly, the liability, if any, should be fastened to APSRTC and not on the insurance company and prayed for dismissal of the claim petition. 3. R4/ APSRTC filed a counter denying the narration made in the claim petition and it raised the contest stating that at the material point of time, bus was validly insured and therefore, the liability, if any, should be fastened to the insurance company and not on APSRTC and prayed for dismissal of the claim. 4 Dr.VRKS,J MACMA.No.454 of 2013 4. Learned claims tribunal settled the following issues for trial. 1. Whether the accident occurred due to rash and negligent driving of R.1 driver of bus bearing Regn. No.AP 05 W 4924? 2. Whether the petitioners are entitled to claim of compensation? if so, to what amount, and against which of the respondents? 3. To what relief? 5. There was evidence of PW.1 to 3 and Exs.A1 to A8 and Exs.X1 to X4 on behalf of the claimants and no oral evidence was adduced on behalf of the respondents. A copy of the insurance policy as per Ex.B1 alone was marked. Learned claims tribunal considered the evidence of eye witness/ PW.2 and Ex.A1/ FIR and Ex.A5/ charge sheet and accordingly held that the death of Sri Vijendra Rao was out of rash or negligent driving of the bus by the driver of the APSRTC. It held that the gross monthly income of the deceased was Rs.20,889/- as per Ex.A6/ salary certificate and in terms of Ex.A8 service register, there were statutory deductions towards APGLI and GIS and in terms of Ex.X3, the total deductions from his salary per month were Rs.2,410/-. Therefore, it was found that the monthly net income of the 5 Dr.VRKS,J MACMA.No.454 of 2013 deceased was Rs.18,479. His annual income arrived at Rs.2,21,748/-. Though there were four legal representatives to him, it found that only the widowed wife was the dependent and in that view of the matter, it deducted 1/3rd towards possible personal expenses of the deceased. Thus, it arrived at the annual net income of the deceased as Rs.1,47,832/-. It applied multiplier 13 and concluded Rs.19,21,816/- as compensation towards loss of dependency. It further granted Rs.10,000/- towards loss of consortium and Rs.5,000/- towards funeral expenses and Rs.5,000/- towards loss of estate. Thus, a total compensation of Rs.19,41,816/- was found as just compensation. It observed that in terms of law, the insurer must indemnify and APSRTC had no liability. Accordingly, it fastened the liability on the owner/R2 and the insurance company/ R3. It passed the award in the following terms. In the result, the petition is allowed in part with proportionate costs. a) The petitioners are entitled for compensation to a tune ofRs.19,41,816/- (Rupees Nineteen lakhs forty one thousand eight hundred and sixteen only) apportioned as follows: 1st petitioner being the wife of the deceased is entitled to - Rs.14,91,816/- 2nd petitioner being the son is entitled to Rs. 1.50,000/- 6 Dr.VRKS,J MACMA.No.454 of 2013 3rd petitioner being the son is entitled to Rs.1,50,000/- 4th petitioner being the married daughter entitled to Rs.1,50,000/- Total: Rs.19,41,816/- b) R.2 and R3 alone are jointly and severally liable to pay the compensation. c) R.3 as Insurer of R.2 is directed to deposit the said sum with interest at 6% p.a from the date of petition (25-4-2011) till realization within 30 days from the date of award. d) On such deposit, the 1st petitioner is permitted to withdraw Rs.8,00,000/- in the first instance and the remaining balance shall be invested in fixed deposit in any Nationalized bank for a period of Two Years. Thereafter, the 1st petitioner is permitted to withdraw the entire amount with accrued interest thereon by filing an application. e) The petitioners 2 to 4 are permitted to withdraw their share of amount with accrued interest by filing an application. f) The claim against 1st and 4th respondents is dismissed. 6. Aggrieved by it, the insurance company preferred this appeal. 7. Sri T.Ravi Teja, the learned counsel representing on behalf of Smt.A.Jayanthi, the learned counsel for appellant/ insurance company and Sri Vinod Kumar Tarlada, the learned standing counsel for R7 herein/ APSRTC submitted their arguments. 7 Dr.VRKS,J MACMA.No.454 of 2013 8. The claimants/ R1 to R4 despite notice being served did not choose to appear and contest. 9. Learned counsel for appellant/ insurance company questioned the correctness of the award on the following grounds. • Compensation awarded by the tribunal below is excessive • The deceased had only 9 years of service and therefore tribunal applying multiplier No.13 is incorrect • The liability ought to have been fastened to APSRTC • The rulings cited by the insurance company before the claims tribunal were not considered 10. As for that, the learned counsel for R7/ APSRTC contended that on facts and law, the claims tribunal arrived at correct conclusions and there is no warrant for interference in this appeal and prays for dismissal of the appeal. 8 Dr.VRKS,J MACMA.No.454 of 2013 11. The points that fall for consideration are 1. Did the claims tribunal commit an error on facts and law and granted more compensation than the claimants deserve? 2. Whether the claims tribunal committed an error in fastening liability on the insurance company and in omitting to fasten liability on APSRTC? POINT Nos.1 and 2 12. From the evidence on record and the arguments advanced on both sides, it is undisputed that bus bearing registration No. AP 05 W 4924 was taken on hire by APSRTC and the original owner of the bus had the bus insured under Ex.B1 insurance policy and at the material point of time, the insurance policy was in force. 13. The relative liability of the insurance company and APSRTC was raised before the claims tribunal. After a detailed analysis and after noticing the ruling of the Hon’ble Supreme Cout of India in UPSRTC V. Kulsum1, the learned claims tribunal ruled 1 (2011) 8 SCC 142 9 Dr.VRKS,J MACMA.No.454 of 2013 that as a hirer, APSRTC was the owner of the bus. However, as the bus was insured and as the insurance policy was in force, it has to be deemed that the vehicle was transferred along with the insurance policy. Therefore, the liability should solely rest on the owner of the bus and the insurance company. In such circumstances, APSRTC had no liability to shoulder. Thus, the tribunal considered the facts and applied the law and accordingly rendered the award. The ruling of their lordships in Kulsum’s case was reiterated years thereafter, by their lordships in UPSRTC V. Rajenderi Devi 2. In the present appeal, the appellant/ insurance company has not brought to the attention of this Court any other principle to decide the above referred facts in any different manner. Thus, the award impugned is right on facts and law and the contention of the appellant that it has no liability but only APSRTC has liability has no merit. 14. From the evidence on record and the arguments advanced before this court, the following aspects are not in dispute. The deceased was aged 49 years and by the time of his death, he had about nine years of service. He survived by his wife 2 (2020) 19 SCC 230 10 Dr.VRKS,J MACMA.No.454 of 2013 and three children/ legal representatives. His gross monthly salary was Rs.20,889/- as on June, 2010. The deductions from his salary were Rs.2,410/- per month. His net salary was Rs.18,479. 15. The contention of the appellant/ insurance company is that learned claims tribunal applied multiplier no.13 which was incorrect. Since the deceased had nine more years’ service left it could not be said that he would get salary for a period of 13 years. It is in this regard, both before the claims tribunal as well as here support is taken from a ruling of a learned Judge of this court in Repaka Rajya Laxmi V. Poldasari3. According to the learned counsel for insurance company the said ruling and other related rulings that were cited before the claims tribunal were not considered by the claims tribunal. In this regard, this court has to state, the learned claims tribunal at paragraph No.33, 34, 35, 39, 40, 41, 42, 43 considered the rulings cited on both sides. It then stated that by virtue of the law laid down by the Hon’ble Supreme Court of India in Sarla Verma V. Delhi Transport Corporation4, it could not follow the other rulings and it was 3 2008 (3) ALD 80 (AP) 4 2009 (6) SCC 121 11 Dr.VRKS,J MACMA.No.454 of 2013 bound to follow the ruling of their Lordship and accordingly went on to decide the dispute. In Repaka’s case, it was stated that based on facts appropriate multiplier had to be applied and depending on facts a change of multiplier could be adopted. In that case, the left over service of the deceased was taken into consideration and the multiplier was selected. That was a case of subject matter accident of the year 2002. In the present case, subject matter accident took place in the year 2010 and the claim was moved before the claims tribunal in the year 2011 by which time, the celebrated ruling of the Hon’ble Supreme Court of India in the earlier referred Sarla Verma’s case was holding the field. After detailed analysis of several ponderable and imponderables, their Lordships concluded saying that there should always be uniformity and consistency in determining the compensation in cases of death, the tribunal has to first ascertain the multiplicand. For this purpose, the income of the deceased per annum should be determined. Out of such income, the deduction should be made in regard to the amount which the deceased could have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes multiplicand. Then the tribunal shall 12 Dr.VRKS,J MACMA.No.454 of 2013 ascertain the appropriate multiplier. In this regard, their Lordships held that after considering the age of the deceased and the period of active career, the appropriate multiplier should be selected. Their Lordships further noted “this does not mean ascertaining the number of years, he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors….” multiplier should be chosen from the table settled by their Lordships. As per the table provided therein for the age group of 46 to 50 years, the appropriate multiplier should be 13. The above principle makes it very clear that the active career does not simply mean the left over service. The contention of the learned counsel for appellant/ insurance company in requesting the tribunal as well as this court to apply multiplier 9 since the deceased had only 9 years left over service is incorrect. Tribunal rightly followed the law and applied the same to the facts rightly. When it comes to surviving legal representatives of the deceased, they are four in number and in terms of Sarla Verma’s ruling, the tribunal could have deducted 1/4th of the income of the deceased towards his possible personal living expenses. If it deducted only 1/4th, the compensation could have been more. However, the tribunal took the view that in real 13 Dr.VRKS,J MACMA.No.454 of 2013 terms only the widow of the deceased was the real dependent and accordingly it gave bigger deduction, namely, 1/3rd towards possible personal expenses of the deceased. Then it calculated the compensation. In that view of the matter, the contention of the appellant/ insurance company that excess compensation was granted and wrong multiplier was applied do not merit any further consideration. 16. In the opinion of this court, on facts and the law, the impugned award is correct and it does not warrant any interference. Both the points are answered against the appellant. 17. In the result, this appeal is dismissed. As a sequel, miscellaneous applications, pending, if any, shall stand closed. ________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 25.02.2025 Dvs 14 Dr.VRKS,J MACMA.No.454 of 2013 THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR MACMA No. 454 of 2013 Date: 25.02.2025 Dvs