(Appeal under Section 173 of M.V. Act against the order/decree in OP No.422 of 1995 dated 10/11/1998 on the file of the court of the III Additional Judge, City Civil Court, Hyderabad.)

Respondents 1 to 3 are the widow and children, and respondents 4 and 5 are the parents of Srinivasa Reddy (the deceased). Respondents 1 to 3 filed a claim petition seeking compensation of Rs.10,000,000/- from the appellant, showing respondents 4 and 5 also as respondents 2 and 3, alleging that when the deceased, who was aged 30 years and earning Rs.20,000/- per month by plying buses, was proceeding on a scooter with the first respondent as his pillion rider, and reached near Karmanghat cross roads on Hyderabad-Nagarjuna Sagar Road highway, a bus bearing No.AP-9Z-2379 belonging to the appellant, being driven by its driver in a rash and negligent manner, dashed the bus against the scooter of the deceased from behind and so the deceased and first respondent were thrown away from the scooter and the deceased was run over by he bus belonging to the appellant. Appellant filed a counter contesting that the accident occurred only due to the negligence of the deceased and in any event since respondents 4 and 5 filed another O.P.No.277 of 1996 seeking compensation, two claim petitions in respect of the death of the deceased are not maintainable.

2. Both the O.Ps. i.e., the O.P. filed by respondents 1 to 3 and the O.P. filed by respondents 4 and 5 were clubbed and common evidence was recorded. In support of the case of respondents, P.Ws.1 to 7 were examined and Exs.A.1 to A.32 were marked. On its behalf, appellant examined R.Ws.1 and 2 and marked Ex.B.1. The Tribunal having held that the accident occurred due to the rash and negligent driving of the driver of the bus belonging to the appellant awarded Rs.5,02,000/- as compensation to respondents 1 to 5. Hence, this appeal by the owner of the bus involved in the accident.

3. The points that arise for consideration in this appeal are:

1) Due to whose negligence did the accident occur

2) To what compensation are respondents 1 to 3 entitled to

Point No.1:

4. The evidence of P.W.1 (first respondent) is that on the fateful day she and the deceased went to a hospital for her medical check up and were returning to their house on a scooter and when they reached near Karmanghat cross roads, a bus came from behind and dashed their scooter and so she was thrown from the scooter to the left and the deceased fell to the right and was run over by the bus and that police registered a case in connection with the accident against the driver of the bus. During cross-examination she stated that the Karmanghat cross roads is at a distance of 2 or 3 furlongs from the place of accident and that she does not know if there is a bus stop in between the place of accident and the Karmanghat cross roads, and denied the suggestion that when the bus was proceeding on the left side of the road and was approaching a bus stop, the deceased attempted to overtake the bus from its left side and that the deceased on seeing a cyclist coming in front of his scooter, got confused and hit the cycle with his scooter and fell down in front of the bus and that the accident occurred only due to the negligence of the deceased and that a false report was given to enable them to claim compensation from the appellant. The evidence of other witnesses examined by the claimants is not relevant for determining this point, as they are not witnesses to the accident.

5. The evidence of R.W.1, the driver of the bus involved in the accident, is that as there is a bus stop at the Karmanghat cross roads and as he was approaching the Karmanghat bus stop and was at a distance of about 60 yards therefrom, he saw a scooterist with a lady pillion rider and a cyclist proceeding in the same direction of the bus and that the cyclist tried to overtake the bus from the left side and the scooterist in the process of trying to overtake the cycle from in between the cycle and the bus, came into contact with the cycle and since the lady pillion rider jumped from the scooter, the scooter fell to the right and so he stopped the bus immediately, but the scooterist went under the left rear wheels of the bus. During cross-examination, he stated that he depending on the rush he would stop the bus at each stage for about five minutes and that the distance between the Karmanghat stage and the R.T.C. colony is about one furlong, and by the time the bus reached R.T.C. Colony there were about 120 passengers in the bus and denied the suggestions that there is no bus stage at Karmanghat cross roads and that the accident occurred only due to his negligence. The evidence of R.W.2, Conductor of the bus involved in the accident, is that immediately after the accident the got down from the bus and found the scooterist at the left rear wheel of the bus and so he informed to the Depot Manager over telephone about the accident and went to the police station and that Ex.B.1 endorsement is written by a passenger on the Statistical Return maintained by him. During cross-examination, he denied the suggestion that he brought Ex.B.1 into existence for the purpose of the case.

6. The evidence of R.W.1 that he gave a report to the police about the accident is not supported by any documentary evidence. Ex.A.1 (F.I.R.) shows that it was registered on the basis of report given by Chandra Sekhar Reddy, who was not a witness to the accident. Ex.A.2 is a copy of charge sheet filed by police against R.W.1, the driver of the bus in connection with the accident, Ex.A.3 is a copy of panchanama of inquest and Ex.A.4 is a copy of Postmortem Report. Ex.A.5, copy of the Motor Vehicles Inspector’s report shows that there was no damage to the bus. Ex.A.6 is a copy of the sketch of the scene of accident and Ex.A.7 is a copy of panchanama of scene of accident.

7. Ex.B.1 cannot be taken into consideration because the person who allegedly wrote it is not examined. From Exs.A.6 and A.7, it is seen that the body of the deceased was in front of the bus, but not near the left rear wheels or to the left of the bus involved in the accident. Therefore, the evidence of R.Ws.1 and 2 that the deceased fell under the left rear wheels of the bus cannot be believed or accepted. That Ex.A.5 does not show any damage to the bus, is of no consequence because Exs.A.6 and A.7 show that the body of the deceased was in front of the bus and since the theory set up by R.W.1 of a cyclist trying to over take the bus from left and the deceased trying to over take that cyclist from in between the bus and cycle cannot be believed or accepted. So, I confirm the finding of the Tribunal that the accident took place due to the rash and negligent driving of R.W.1. The point is answered accordingly.

Point No.2:

8. The Tribunal on the ground that the deceased was earning Rs.32,610/- per annum, held that his contribution to the respondents would be Rs.26,500/- per annum, and taking the multiplier as 18’ awarded Rs.4,77,000/- towards pecuniary damages and Rs.15,000/- towards loss of consortium and Rs.5,000/- to each of respondents 2 and 3 towards loss of love and affection.

9. The specific case of the respondents 1 to 3 is that the source of earnings of the deceased was hiring his buses to the appellant. The evidence adduced by the respondents 1 to 3 clearly shows that even after the death of the deceased, first respondent had let out the buses to the appellant. For continuing the hire agreement of the buses with the appellant, no special skill is required. Even according to the case of P.W.1, her father i.e., P.W.3 was looking after the leasing of the buses left behind by the deceased. The evidence of P.W.2 shows that after the death of the deceased, first respondent returned an income of Rs.80,450/- i.e., more than the income earned by the deceased. The buses standing in the name of the deceased admittedly were transferred in the name of the first respondent. For her own reasons, first respondent had sold away the buses. Since the source of income of the deceased was the hire amount received from the appellant and since first respondents also received more hire for the buses left behind by the deceased, the hire amount being received by the deceased cannot form the basis for arriving at the compensation payable to the respondents. What is the income the deceased would have earned had he sold away the buses during his lifetime, as first respondent did after the death of the deceased, has to be considered, for arriving at the compensation payable to respondents.

10. Keeping in view the age, educational qualification etc. of the deceased, had he not been leasing out the buses, he might be contributing about Rs.16,000/- per annum to respondents. Since the age of the deceased, at the time of his death was 29 years, his date of birth and death being 19-07-1966 and 07-03-1995, respectively, the multiplier would be 15. So, the pecuniary damages payable to respondents 1 to 3 would come to Rs.16,000/- x 15 = Rs.2,40,000/-.

11. As per the ratio in Y. Varalakshmi v. M. Nageswara Rao (1988 (1) ALT 337 [LQ/APHC/1988/2] ) in every case of a fatal accident, a minimum compensation of Rs.15,000/- has to be awarded to the claimant. Keeping in view the age and income of the deceased, the non-pecuniary damages can be fixed at Rs.60,000/-.

12. Since the first respondent lost her husband, she is entitled to loss of consortium of Rs.15,000/-. Respondents 2 and 3 are not entitled to any separate compensation, towards loss of love and affection as awarded by the Tribunal.

13. Thus, respondents are entitled to Rs.2,40,000/- + Rs.60,000/- + Rs.15,000/- = Rs.3,15,000/- as compensation for the death of the deceased. The point is answered accordingly.

14. In the result, the appeal is allowed in part. The award passed by the Tribunal is modified and an award is passed for Rs.3,15,000/- 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. Parties are directed to bear their own costs in this appeal. From out of the said amount, first respondent is entitled to Rs.1,00,000/- and interest thereon, respondents 2 and 3 are each entitled to Rs.70,000/- and interest thereon, fourth respondent is entitled to Rs.25,000/- and interest thereon and fifth respondent is entitled to Rs.50,000/- and interest thereon.