C.Y. Somayajulu, J.@mdashRespondents, who are the widow and children of M.A. Saleem (the deceased), filed a claim petition in the Motor Accidents Claims Tribunal seeking compensation of Rs.9,00,000/- from the appellant alleging that when the deceased was proceeding to Warangal from Mahaboobnagar in a car, a bus belonging to the appellant, being driven in a rash and negligent manner, came in the opposite direction of the car in which the deceased and others were travelling and dashed against it, resulting in the death of the deceased and examined two witnesses as P.Ws.1 and 2 and marked Exs.A1 to A4 in support of their case.
2. Appellant, who filed a counter contending that the accident occurred only due to the rash and negligent driving of the driver of the car involved in the accident, but not due to the rash and negligent driving of the driver of its bus, examined its driver as R.W.1 and marked Ex.B1 on its behalf.
3. The Tribunal after having held that the accident occurred due to the rash and negligent driving of R.W.1 awarded Rs.7,00,000/- as compensation to the respondents. Hence, this appeal by the respondent before the Tribunal.
4. The points for consideration are -
1) Whether the accident involving the deceased occurred due to the rash and negligent driving of the bus of the appellant by R.W.1 or was it due to the rash and negligent driving of the driver of the car in which the deceased was proceeding?
2) To what compensation, if any, are the respondents entitled to?
Point No.1:
5. Since P.W.1 admittedly was not a witness to the accident, her evidence is not relevant for deciding this point. The evidence of P.W.2 is that when he and the deceased and others were proceeding to Warangal in a car, and when that car reached near Petrol Bunk, Balanagar, a bus belonging to the appellant came in the opposite direction at a high speed and dashed against the car resulting in instantaneous death of the deceased. During cross-examination he stated that he did not give a complaint to the police about the accident and that he was in the back seat of the car at the time of the accident and that the car was proceeding at a speed of about 40 to 50 Kmph., at the time of accident.
6. The evidence of R.W.1 is that when he was proceeding from Hyderabad to Narayanpet and reached near Balanagar Petrol Bunk at about 6.45 a.m. a car which was coming in his opposite direction was suddenly swerved to the right and came into contact with the right side portion of the bus and turned turtle and so he went to the police station and gave a report and that the accident occurred only due to the rash and negligent driving of the driver of the car and that he was acquitted by the Criminal Court. During cross-examination, he stated that after the accident he is not permitted to drive buses and is posted as Depot spare employee and is drawing less salary than that was being drawn by him before the accident, and that he stopped the bus at the scene of accident and left it there and that there were no vehicles in front of the car at the time of accident and denied the suggestion that the accident occurred only due to his rash and negligent driving.
7. From Ex.B1 judgment of the Criminal Court, in the prosecution launched against R.W.1 in connection with the accident, it is seen that the report of the Motor Vehicles Inspector and the scene of accident panchanama were marked as Exs.P4 and P5 respectively therein. Motor Vehicles Inspector''s Report and the scene of accident Panchanama are very important documents in a claim before the Motor Accidents Claims Tribunal as they throw light the condition of the vehicles involved in the accident after the accident and their position, the width of the road, skid marks etc., and other features obtaining at the scene of accident. The Motor Vehicles Inspector''s Report shows if there were any mechanical defects and the condition of the brakes, steering, tyres, etc. For reasons best known only to them neither respondents, on whom the burden of proof lay to establish that the accident took place due to the negligence of the driver of the bus, nor the appellant, chose to produce those important documents. Since P.W.2 is a friend of the deceased he is an interested witness and his evidence without corroboration from the above important documents cannot be accepted.
8. As rightly observed by the Tribunal the fact that RW1 was acquitted in a criminal case does not have a bearing for deciding this point for consideration. From the cross-examination of RW1 it is seen that except the two vehicles involved in the accident there were no other vehicles on the road at the scene of accident at the time of accident. So, it is clear that the road at the scene of accident was clear. Had the scene of accident panchanama been produced, the width of the road at the seen of accident would have been known. Since the road between Mahaboobnagar and Hyderabad, on which the accident took place, is a part of the national highway between Hyderabad-Bangalore, it can be taken that the width of the road at the scene of accident was sufficient enough to enable two vehicles crossing each other, without any difficulty or inconvenience, whatever may be the speed at which they were being driven. The evidence of R.W.1 that the driver of the car swerved the car to the right, when his bus reached near the car, cannot be believed or accepted, because no ordinary prudent driver would swerve the car to the right on seeing a vehicle coming in his opposite direction.
9. When there were no vehicles in between the two vehicles involved in the accident and when the road is wide enough to enable the vehicle cross freely, even if one of the drivers of the vehicles involved in the accident was careful, he could have easily averted the accident. Since this is a case of collision between two vehicles proceeding in their opposite directions, on a national high way, and since any of the drivers could have easily averted the accident if he were careful, it has to be taken that the accident involving the deceased occurred only due to the negligence of drivers of both the vehicles involved in the accident, and in the facts and circumstances of the case I hold that the accident occurred due to 50% negligence of R.W.1 while driving the bus belonging to the appellant, and due to 50% negligence of the driver of the car in which deceased was proceeding. The point is answered accordingly.
Point No.2:
10. Ex. A.1, Salary certificate of the deceased, shows that he was drawing a salary of Rs.5,071/- per month including Rs.428/- per month as House Rent Allowance and was contributing Rs.50/- towards Group Insurance, Rs.60/- towards Profession Tax and Rs.238.10 towards L.I.C. Premium. Since Group Insurance, Profession Tax and L.I.C. premium were being deducted from his salary, the take home salary of the deceased can be taken as Rs.4,723/- per month. Deducting 1/3 therefrom, the contribution of the deceased to the respondents can be taken as around Rs.3,150/- per month or Rs.37,700/- per annum. Keeping in view the fact that the deceased would have earned increments, though there is no evidence regarding the rate of his annual increments, his annual contribution to the respondents, on an average, can be taken as Rs.45000/-.
11. On the basis that the transfer certificate of the deceased shows his date of birth as 08-01-1953, and so he would have had 141/2 years service, the Tribunal fixed the multiplier at ''14.5''. None of the exhibits marked in this case is the Transfer certificate of the deceased. So, it is clear that the Tribunal relied on a document which was not marked as an exhibit in the case. Since unmarked documents cannot be looked into, and since there is no reliable evidence on record relating to the date of birth of the deceased, his age has to be determined on the basis of the other evidence on record. Inquest panchanama shows the age of the deceased as 45 years. So, it can be taken that the deceased was aged around 45 years at the time of his death and so, the multiplier can be taken as ''12''. Therefore, the pecuniary damages payable to the respondents would come to Rs.45,000 x 12 = Rs.5,40,000/-.
12. In Y. VARALAKSHMI v. M.NAGESWARA RAO it is held that in every case of a fatal accident a minimum compensation of Rs.15,000/- should be awarded to the claimants towards non-pecuniary damages. Keeping in view the age and earnings of the deceased, the non-pecuniary damages can be fixed at Rs.60,000/-.
13. Since the first respondent lost her husband, she is entitled to Rs.15,000/- towards loss of consortium.
14. Thus, the respondents would have been entitled to Rs.5,40,000/- + Rs.60,000/- + Rs.15,000/- = Rs.6,15,000/- as compensation for the death of the deceased.
15. Here it should be stated that the Tribunal awarded Rs.2,000/- towards funeral expenses. Since the claim is not u/s 163-A but u/s 166 of the Motor Vehicles Act, 1988 (the Act), in view of the ratio in G.ARUNA v. APSRTC respondents are not entitled to funeral expenses. The Tribunal was in error in awarding Rs.99,706/- to the respondents towards ''future income by way of enhanced salary'', without there being any evidence on record relating to the rate of annual increments of the deceased. While arriving at the pecuniary damages, the annual increments that could have been earned by the deceased also were taken into consideration and so the respondents are not entitled to any further compensation on the ground that the deceased could have earned annual increments.
16. Since on Point No.1 I held that the accident occurred due to 50% negligence of the driver of the bus belonging to the appellant and due to 50% negligence of the driver of the car in which the deceased was proceeding, and since respondents failed to implead the owner and insurer of the car in which the deceased was travelling as parties to the petition, they are entitled only to 50% of the compensation arrived at i.e. 50% of Rs.6,15,000 = Rs.3,07,500/- as compensation, and so I hold that respondents are entitled to Rs.3,07,500/- as compensation from the appellant. The point is answered accordingly.
17. In the result, the appeal is allowed in part. The award of the Tribunal is modified and an award is passed for Rs.3,07,500/-in favour of the respondents against the appellant with interest at 9% per annum from the date of registration of the petition till the date of deposit into Court with proportionate costs before the Tribunal. From out of the said amount, respondents 2 to 5 each are entitled to Rs.60,000/- and interest thereon and first respondent is entitled to Rs.67,500/- and interest thereon. Rest of the claim of the respondents is dismissed without costs. Parties are directed to bear their own costs in this appeal.
