IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A No.436 of 2003 Dated:19-10-2011 Between: Smt. Desu Girija Kumari and others. ….Appellants. And J.Nagaraju and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A.No.436 of 2003 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is filed at the instance of claimants directed against the award passed in O.P.No.53 of 1997 by the Motor Accidents Claims Tribunal - cum – Additional District Judge, Madanapalle on 29.08.2002. The petitioners are the claimants and they have filed the application for compensation of Rs.30,00,000/- for the death of the husband of the petitioner No.1 and father of petitioner Nos.2 to 4. According to the petitioners, on 07.12.1996 while the deceased was coming in a car bearing No.MSM 7322 towards Madanapalle and when the car reached Sasi Silk Sarees Centre, Neerugattuvaripalle of Madanapalle the lorry bearing No.TN 47 6945 driven by the 2nd respondent came in a rash and negligent manner and dashed the car of the deceased, as a result of which, the inmates of the car sustained grievous injuries. The deceased was shifted to Government Hospital, Madanapalle for treatment, where he succumbed to the injuries. According to the petitioners, the deceased was aged about 43 years and was earning Rs.5,00,000/- P.A. through business and cultivation. The deceased was having 200 acres of dry land and 50 acres of wet land, which he inherited from his ancestors. Hence, they are entitled for the compensation of Rs.30,00,000/- The 3rd respondent Insurance Company has opposed the said application by filing the counter contending that there is no negligence on the part of the driver of the lorry and the petitioners are put to strict proof with regard to age and income of the deceased. As there was head on collision between the lorry and the car, the owner and insurance company of the said car are also proper and necessary parties to the petition. Hence, the petition is liable to be dismissed. On the above pleadings, the Tribunal has framed the following issues: (1) Whether the accident in which the deceased died was due to rash and negligent driving of the lorry No.TN 47 6945 by its driver on 07.12.1996 at 1.30 P.M in front of Sasi Silk Saree Centre, Neerugattuvaripalle, Madanapalle Town? (2) Whether the petitioners are entitled to claim any compensation, if so, to what amount and from whom? (3) To what relief? The 2nd petitioner examined himself as P.W.1 and also examined P.W.2 on their behalf and got marked Exs.A.1 to A.39. On behalf of the respondents, R.Ws.1 and 2 were examined and got marked Exs.B.1 to B.3. On behalf of the Court, Ex.X.1 was marked. Taking into consideration of the said oral and documentary evidence, the Tribunal has held issue No.1 in favour of the petitioners holding that the accident occurred due to rash and negligent driving of the driver of the lorry. With regard to issue No.2 Tribunal awarded compensation of Rs.3,39,000/- by taking into consideration of the earnings of the deceased at Rs.5,000/- per month and after deducting 1/3rd towards personal expenses and by applying multiplier 7.68, awarded an amount of Rs.3,07,200/- towards loss of dependency, Rs.15,000/- towards consortium, Rs.2,000/- towards funeral expenses and Rs.15,000/- towards loss of estate. Aggrieved by the said award and decree, the claimants have filed the present appeal for enhancement of the compensation. Learned counsel for appellants has pleaded that the deceased is a businessman and also agriculturist and he was earning Rs.5,00,000/- P.A. and they have filed income tax returns and the various permissions obtained for doing business and the Tribunal erred in taking the income of the deceased at Rs.60,000/- P.A. instead of taking Rs.5,00,000/- as annual income of the deceased. Learned counsel for appellants has further pleaded that the deceased was aged about 43 years as per the birth certificate Ex.A.39 and study certificate Ex.A.38 and the lower Court erred in taking into consideration the age of the deceased as 52 years. The counsel appearing for the insurance company has supported the findings of the Tribunal in awarding the quantum of compensation. According to the petitioners, the deceased was running business and also attending to agriculture and pleaded that he was earning Rs.5,00,000/- P.A. They have filed income tax returns Exs.A.35 to A.37 for the years 1990-91, 1991-92 and 1992-93 filed on behalf of the firm Desu Venkatachalamaiah and sons, wherein the share of the deceased is shown as Rs.10,073/- for the year 1990-91, Rs.5,940/- for the year 1991-92, and Rs.10,328/- for the year 1992-93. Even though the petitioners have filed Exs.A.4, A.5, A.6, A.7, A.8 and A.9 to show the licenses issued by the concerned authorities for doing business in the name of the deceased apart from Exs.A.35 to A.37, which are 3 years prior to the date of accident, there is no other document to show the income of the deceased as on the date of the accident. Even though the petitioners have claimed that the deceased was having lorries, they have not produced any document with regard to the income of the deceased. The income tax returns of the deceased were not filed to establish the income of the deceased as claimed by them. The petitioners also filed Pattadar Passbooks Exs.A.16 to A.18, but they are standing in the name of the 2nd petitioner, who is the son of the deceased. Therefore, there is no material on record to establish that the deceased was earning Rs.5,00,000/- P.A. In the absence of any material before the Tribunal, the Tribunal has rightly taken Rs.5,000/- per month as income of the deceased being a businessman. The next contention of the appellants’ counsel is that the deceased was aged 43 years as on the date of accident and in support of their contention they produced Ex.A.39 birth certificate issued by the Head Master, S.U.G.M. Upper Primary School, B.Kothakota, wherein the date of birth of the deceased is shown as 08.08.1954 and the same was issued on 29.06.2002. The petitioners also filed Ex.A.22 the Driving license of the deceased. As per the date of birth mentioned therein, the deceased was aged about 52 years as on the date of the accident. Since Ex.A.39 was obtained on 29.06.2002 i.e. much after filing of the O.P., the Tribunal has rightly taken into consideration the date of birth mentioned in the driving license Ex.A.22. By taking into consideration the income of the deceased as Rs.5,000/- per month, the annual income comes to Rs.60,000/-. Since the claimants are 4 in number, as per the decision rendered in “Smt. Sarla Verma and others v. Delhi Transport Corporation and another (2009 AIR SCW 4992)” only 1/4th of the income has to be deducted towards personal expenses of the deceased. Thus, after deducting 1/4th towards personal expenses, the dependency of the petitioners comes to Rs.45,000/- P.A. As per Smt. Sarla Verma’s case (referred supra) the proper multiplier applicable for the age of 52 years is ‘11’. Thus, the total loss of dependency comes to Rs.4,95,000/-. The Tribunal awarded Rs.15,000/- towards loss of consortium, Rs.2,000/- towards funeral expenses and Rs.15,000/- towards loss of estate. Hence, the petitioners are entitled for Rs.5,27,000/-. As per Smt. Sarla Verma’s case (referred supra), the petitioners are entitled for interest at 6% P.A. on the enhanced amount. In the result, the appeal is partly allowed and the compensation awarded by the Tribunal is enhanced to Rs.5,27,000/- from Rs.3,39,000/- with interest at 6% P.A. on the enhanced amount from the date of filing of the petition till the date of realization. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:19 -10-2011 Ksp