JUDGMENT
G. Radhakrishna Rao, J.
1. Alleging that the deceased, J. Vijayakumar, aged 34 years, working as Senior Assistant in Coromandal Fertilisers, Hyderabad, who is the husband of the 1st petitioner, father of petitioners 2 and 3 and son of petitioners 4 and 5, died in a motor accident on 27-5-1988 at about 9-45 p.m. on the tank bound in Hyderabad city, due to the hit of the A.P.S.R.T.C bus bearing registration No. AAZ 4216, which was driven by the 1st respondent in a rash and negligent driving, the petitioners filed O.P.No. 504 of 1988, on the file of the Additional Chief Judge, City Civil Court at Secunderabad claiming a total compensation of Rs. 5,71, 812-29. The lower tribunal having found that there was contributory negligence on the part of the deceased also and having fixed the negligence on the part of the deceased and the driver of the bus in the ratio of 1:3 and after considering the earning capacity of the deceased, ultimately granted a total compensation of Rs. 1,95,000/-. Having been dissatisfied with the quantum of compensation awarded by the Lower Tribunal, the petitioners filed CMA No. 1232 of 1991. Having been aggrieved by the award of compensation, the A.P.S.R.T.C. filed CMA No. 1206 of 1992.
2. As regards the contributory negligence fixed by the trial Court, in the ratio of 1:3 between the deceased and the driver of the bus, the learned Counsel, Mr. P.B. Vijayakumar, appearing on behalf of the claimants contended that there was no negligence on the part of the deceased and it is only on account of the negligence of the driver of the bus the accident had occurred. In support of his submission, he has relied upon the rough sketch of the scene of offence, marked as Ex. A-4. On the other hand, Sri V. Rajagopal Reddy, learned standing Counsel appearing on behalf of the the A.P.S.R.T.C. vehemently contended that there was negligence on the part of both the deceased and driver of the bus in the ratio of 50% : 50% and that the lower tribunal, according to the learned standing Counsel for A.P.S.R.T.C. went wrong in fixing the contributory negligence on the part of the deceased at 25% and it should have been 50%.
3. We have perused the sketch, Ex.A-4, marked before the Lower Tribunal. According to the rough sketch Ex.A-4, the accident spot is within the scooter zone. Blood stains were also noticed within the scooter zone and the scooter was found lying within the scooter zone. Admittedly there are four zones on the tank bound road, besides the pavements. The extreme left zone and extreme right zone are meant for the traffic of scooters and other two wheelers while the middle two zones are meant for incoming and outgoing heavy vehicles like buses, i.e., one zone for the vehicles coming from Hyderabad side and one zone for the vehicles coming from Secunderabad side. So when the bloodstains were found within the scooter zone and when the scooter was also found lying within the scooter zone, this itself amply establishes that the accident took place in the scooter zone. When the accident is proved to have occurred within the scooter zone, the burden is on the driver of the bus to show under what circumstances he went into the scooter zone. When the respondents have come forward with a plea that the scooterist was at fault and that the accident occurred on account of the contributory negligence on the part of the scooterist, they should have adduced cogent evidence by examining the persons who have knowledge of the incident. It is true that at that part of the night no persons were readily available who have actually seen the accident. But it must be remembered that the persons who are having actual knowledge of the incident are the victim-the deceased and the driver of the bus. The vietim has expired. The driver of the bus is very well available but he was not examined to discharge the burden cast upon the respondents to prove that the accident had occurred on account of the contributory negligence of the deceased. The approach of the Lower Tribunal on this aspect of the matter is patently wrong and is liable to be set aside in limini. When Ex.A-4 rough sketch of the scene of offence prepared by the Investigating Officer clearly shows that the blood stains were found within the scooter zone and when the scooter was also within the scooter zone and when the driver of the bus was not examined to explain the place of accident, an adverse inference has to be drawn against the respondents that the accident had occurred solely due to the rash and negligent driving of the bus by its driver and that there was no contributory negligence on the part of the deceased. In addition to the above, the petitioners have examined P.W.4 a watchman of the garden on the tank bund. P.W.4 deposed that he saw the accident. According to him, the bus was coming from Hyderabad side overtaking another bus in front of it and that the bus hit the scooterist. Ex. A-2 certified copy of the charge-sheet filed by the police in C.C.No. 14 of 1989 was also marked in the lower tribunal. It prima facie shows that according to the investigation done by the Investigating Officer, the accident had occurred due to the negligence of the bus driver only. Of course, it is not a conclusive proof. But, Ex.A-4 certified copy of rough sketch, a reference to which has already been made in the preceding paragraph, clearly clinches the issue. If the driver of the bus had effective control over the steering of the bus, he would have averted the accident. On a careful examination of the. facts and circumstances of this case, especially Ex.A-4 rough sketch, we are of the firm opinion that there was no contributory negligence on the part of the deceased who was proceeding on his scooter in the scooter zone. The contributory negligence of 25% fixed by the lower tribunal on the part of the deceased has to be set aside. The degree of negligence depends upon the facts and circumstances of a given case. In one case it may be 50%:50% between the deceased and the driver of the vehicle, or it may be 40%: 60% or 30%: 70% so on and so forth. It depends upon the facts and circumstances of each case. Taking into consideration the facts and circumstances of this case, we hold that there was no negligence on the part of the deceased and that the entire negligence was on the part of the driver of the bus. The finding of the Lower tribunal to that effect is therefore set aside.
4. Now, coming to the quantum of compensation, the lower tribunal awarded a total compensation of Rs. 1,95,000/-, under different heads. Considering the evidence of P.W.I and P.W.2 who are wife and father of the deceased respectively and also taking into account Ex. A-9 salary certificate, the lower tribunal assessed the monthly contribution of the deceased to his family at Rs. 1,300/- per month, and annual loss of dependency at Rs. 15,600/- and applying 15 as multiplier and after deducting 1/4th of the amount towards contributory negligence, ultimately granted the above said sum of Rs. 1,95,000/-.
5. Normally in the case of deceased, who have no fixed salary, loss of dependency has to be made on guess work. This situation will arise in the case of villagers who are agriculturists or coolies. But in the case of employees, they will be having fixed salaries, borne out by record and determination of compensation will depend upon their salary particulars furnished by their respective employers. In the case of employees who died in motor accident some evidence will be available with regard to the income. In the case of persons other than employees, viz., agricultural coolies, professional workers etc., it is very difficult to fix the compensation and as already stated only guess work has to be made in fixing the compensation and such guess work must be just and reasonable depending upon the income of the deceased persons. In fixing the compensation, the way of life of the deceased has also to be taken note of. Generally if a person lives in towns and cities he will require more money for his maintenance whereas persons living in villages may lead their life with some sort of cheap living. While fixing the loss of dependency these circumstances also have to be taken into consideration.
6. As seen from the pay slip of the deceased issued by his employer, Coromandel Fertilisers Ltd., the deceased was receiving a net salary of 2,370/-. The lower Tribunal assessed Rs. 1,300/- towards contribution to the family members. That means, nearly Rs. 1,070/- was set apart by the deceased for his expenses. Since the deceased was working in a city like Hyderabad, he requires more expenditure for himself towards transport, lunch and other incidental expenses. More so, he was maintaining the scooter. When a person is maintaining scooter, it is needless to say, more amount has to be spent for purchase of petrol and for its maintenance. As he was an employee in a company like Coromandel, he has to maintain some status and to keep up the status he has to wear neat dress. They will generally be accustomed to some luxorious way of life. At the same time, we have to keep in mind the size of the family. In this case the 1st petitioner is the wife, petitioners 2 and 3 are the children and petitioners 4 and 5 are the parents of the deceased. It is borne out from the evidence on record that the parents themselves are in a supporting position as the father is a pensioner and he is having three more sons who are earning. Considering all these aspects, we can safely hold that half of his net salary can be taken as monthly contribution by the deceased to his family members. The theory of contribution depends to his family members. The theory of contribution depends upon the size of the family, their status and way of life. We feel that out of the net salary of Rs. 2,370/- the deceased would be Contributing at least Rs. 1,200/- per month to his family members, viz., Rs. 14,400/- per year which can be rounded off to Rs. 14,500/-. Having found that the monthly contribution of the deceased to his family members at Rs. 14,500/-p.a. now we have to find out the multiplier to be applied to the case. Normally this Court is not adopting the principle of multiplier system. But taking into account the circumstances of this case, we are going to consider the multiplier to be adopted in this case. The deceased was aged about 34 years at the time of his death. The learned Counsel for the petitioners has contended that the multiplier of 15 applied by the lower tribunal is reasonable considering the age of the deceased and needs no interference. For fixing up the multiplier several circumstances have to be taken into account. Age alone is not the basis for fixing up the multiplier. The longevity of life in the family of the deceased has also to be taken into consideration. In this case there appears to be no evidence regarding the longevity of the generation of the deceased. The misfortune cannot be turned out to be a windfall. It is the duty of the Court to see that just compensation is fixed. We feel that taking into account the facts and circumstances of this case and in view of our above discussion, and also taking note of the rulings of different Courts, the multiplier of 15 applied by the lower Tribunal is excessive and a multiplier of 10 would be the reasonable one to be applied in this case. As the annual loss of dependency is fixed at Rs. 14,500/ -, by applying the multiplier of 10, the compensation comes to Rs. 1,45,000/-which is a just and reasonable compensation payable to the petitioners. Another sum of 5,000/-can be awarded to the 1st petitioner towards loss of consortium, making the total compensation at Rs. 1,50,000/-. Out of this amount of Rs. 1,50,000/ the 1st petitioner-wife is entitled to Rs. 50,000/- including the consortium, the two minor children are entitled to Rs. 80,000/- i.e., at the rate of Rs. 40,000/- each and the same be deposited in a Nationalised Bank till they complete 18 years and the parents of the deceased are each entitled to Rs. 10,000/-. The compensation amount shall carry interest at the rate of 12% P.A. from the date of petition till the date of payment, as granted by the lower tribunal.
7. While granting the compensation, the lower tribunal fixed the joint and several liability on respondents 1 to 3. The 1st respondent is the driver of the offending A.P.S.R.T.C. Bus, the 2nd respondent is the A.P.S.R.T.C. represented by its Managing Director, Musheerabad, Hydrabad and the 3rd respondent is Musheerabad Depot Manager. It is only the A.P.S.R.T.C. represented by its Managing Direction the 2nd respondent who will ultimately deposit the compensation awarded by this Court. The 2nd respondent is directed to deposit the compensation amount, as fixed by this Court, after deducting the amounts, if any, already paid or deposited in Court.
8. Both the C.M.As are disposed of. No costs.
