IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE SEVENTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU M.A.C.M.A.No.1970 OF 2010 Between: The APSRTC and another .....APPELLANTS AND Veeraboina Saily and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU M.A.C.M.A.No.1970 OF 2010 JUDGMENT: This M.A.C.M.A., under Section 173 of the Motor Vehicles Act, 1988, (for short, “the Act”), is directed against the order and decree, dated 02.11.2006, in M.V.O.P.No.150 of 2004, on the file of the Chairman, Motor Accident Claims Tribunal-cum-I Additional Chief Judge, City Civil Court, Secunderabad, whereunder and whereby, the petition, filed under Section 166 of the Act, claiming compensation of Rs.4,00,000/- for the death Veeraboina Hanumaiah in a road accident, was partly decreed awarding compensation of Rs.3,84,000/-. 2. It is the case of the respondents/claimants on 28.10.2003 at about 3.15 PM, while the deceased was engaged in selling custard apples along with other vendors on Rajiv Rahadari outskirts of Turkapally Village near Warner Chemical Factory, an R.T.C bus bearing registration No.AP-10-Z-7780 being driven by its driver came at high speed in a rash and negligent manner and dashed the deceased, as a result, the deceased died on the spot. The Police Mulugu, Medak District registered a case in Crime No.54 of 2003 against the driver and thereafter, sent the dead body to postmortem examination. After completion of investigation, police filed charge sheet against the driver of the crime vehicle. 3. To substantiate the case of the claimants, P.W.1 who is an eyewitness to the accident was examined, who speaks that the accident caused due to rash or negligent driving of driver of the RTC bus. The evidence of P.W.2 is also very clear that the deceased was selling custard apples by the extreme side of the road margin and the driver RTC came at high speed in a rash and negligent manner and dashed the deceased. Though it is contended that the deceased was crossing the road at the time of accident, no evidence was adduced to substantiate the same. The driver of the RTC bus is the best person to speak as to under what circumstances the accident had occurred, but he was not examined. The court may presume that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The illustration (g) of Section 114 of the Indian Evidence Act, 1872, deals with the presumptions which arise from withholding evidence and from the suppression of evidence. Non- examination of driver, an adverse inference has to be drawn. Therefore, the evidence of P.W.1 coupled with recitals in Ex.A.2-inquest report; Ex.A.3-postmortem examination report and Ex.A.4-charge sheet would clearly go to show that the accident occurred due to rash and negligent driving of driver of the offending bus. In the absence of any evidence, the contention of the learned counsel for the appellants cannot be accepted that there was a contributory negligence on the part of the deceased. 4. Coming to the quantum, the deceased was selling the custard appeals and also doing agriculture and getting Rs.5000/- per month. The evidence of P.W.1 coupled with other circumstances would clearly go to show that the deceased was selling custard apples as on the date of accident. That is the reason why the trial Court rightly taken into consideration the income of the deceased per day at Rs.100/- and the same has been calculated with suitable multiplier applicable to the age of the deceased. So the multiplier taken by the Tribunal for the purpose of ascertaining the compensation is not shown to be incorrect. Therefore, impugned order does not suffer from any infirmities so as to call for the interference by this Court and the appeal is devoid of merits and it is liable to be dismissed. 5. Accordingly, the M.A.C.M.A. is dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J MARCH 07, 2011 YVL