IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD PRESENT THE HON’BLE SRI JUSTICE NOUSHAD ALI THE DAY OF FEBRUARY TWO THOUSAND AND TEN CIVIL MISCELLANEOUS APPEAL No.219 of 2001 Between: Yerramsetti Tirupathamma And others …Petitioners AND Shaik Jilani And others …Respondents The Court made the following: THE HON’BLE SRI JUSTICE NOUSHAD ALI CIVIL MISCELLANEOUS APPEAL No.219 of 2001 ORDER: 1. This appeal is filed by the claimants seeking enhancement of compensation awarded in O.P.No.161 of 1990 dated 03.04.1996 on the file of the Motor Accidents Claims Tribunal (I Additional District Judge), West Godavari, Eluru (‘the Tribunal’, for brevity). The appellants filed petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.3,00,000/-, on account of the death of one Yerramsetti Lakshmi Prasad. The first appellant is the wife of the deceased, appellants 2 to 4 are his children and appellants 5 and 6 are his parents. The first respondent is the driver of the offending lorry bearing Registration No.ATT 216 and the second respondent is owner and the 3rd respondent is the insurer of the said lorry. The 4th respondent is the driver of the bus belonging to the 5th respondent – APSRTC. The Tribunal have awarded compensation of Rs.1,42,176/- fastening the liability to respondents 1 to 3 and dismissed the O.P. against respondents 4 and 5. This appeal was dismissed for default against respondents 1 and 4. Despite the same, this appeal can be proceeded with as the same is for enhancement of compensation. 2. Heard both sides. 3. The brief facts of the case are that on 05.05.1990, the deceased was travelling in a lorry bearing registration No. ATT 216. The deceased was doing Mango business. He engaged the offending lorry to transport Mangoes to Vijayawada. After unloading Mangoes at Vijayawada, the vehicle was proceeding to Chintalapudi to transport another consignment of Mangoes. The lorry was driven in a rash and negligent manner and dashed against the bus belonging to the 5th respondent bearing registration No. AEZ 1163 driven by the 4th respondent. The deceased sustained head injury and succumbed. The appellants, therefore, claimed a sum of Rs.3,00,000/- towards compensation. The first respondent – lorry driver remained ex parte. The 2nd respondent, who is the owner of the lorry, filed counter and admitted that the deceased was traveling in his lorry as the owner of the goods. He stated that the accident was caused due to rash and negligent driving by the driver of the bus of the 5th respondent. In any event, as the vehicle was insured with the 3rd respondent, the liability should be fastened to the 3rd respondent – Insurance Company. The 3rd respondent – Insurance Company opposed the claim stating that the accident occurred due to rash and negligent driving by the driver of the bus belonging to the 5th respondent. The 3rd respondent put the appellants to strict proof of the other facts. The 5th respondent denied rash and negligent driving on the part of its driver and denied its liability. 4. The Tribunal formulated two issues as to whether the accident occurred due to rash and negligent driving of the lorry bearing registration No. ATT 216; and whether the appellants were entitled for compensation and if so, to what amount and against which of the respondents. 5. Appellant No.6 was examined as P.W.1 and appellant No.1 was examined as P.W.2. They also got examined P.W.3 and P.W.4 and filed Exs.A.1 to A.19. The 3rd respondent examined R.W.1 and filed Exs.B.1 to B.3 documents. The 5th respondent examined R.W.2 and R.W.3, the driver and conductor of the bus respectively and filed Ex.B.3. 6. Based on the evidence of P.W.3, who was eye-witness to the accident, and Ex.A.1 – FIR, Ex.A.3 – Photostat copy of the MVI report and Ex.A.4 – Postmortem Certificate coupled with the evidence of R.W.2 and R.W.3, the Tribunal recorded a finding that the accident occurred due to rash and negligent driving on the part of the driver of the offending lorry. The 4th and 5th respondents were absolved of the allegation for rash and negligence on the part of its driver. Since this appeal is for the enhancement of compensation and that there is no appeal filed by the respondents, the issue relating to rash and negligent driving either on the part of the driver of the lorry or on the part of the driver of the bus of the 5th respondent need not be gone into. 7. As the 3rd respondent sought to contend that the deceased was a gratuitous passenger, the Tribunal considered this aspect also and recorded a finding that the deceased was in fact, owner of the goods. There is no challenge by way of an appeal by the 3rd respondent in this regard. Hence, I accept the finding that the deceased was the owner of the goods and that he was not a gratuitous passenger. 8. The appellants claimed that the deceased was earning Rs.30,000/- per month on Mango business and Rs.30,000/- per month on agriculture and that he was aged 35 years at the date of incident. The appellants filed Exs.A.5 to A.14 to show that the deceased was doing Mango business. These bills appear to have been given by some fruit merchants, but these bills did not reflect how much income the deceased was deriving. There is also no proof of income from the agriculture source. However, the Tribunal calculated the compensation on the basis that the deceased was earning Rs.1,200/- per month. 9. In the absence of reliable evidence, I am of the opinion that the income of Rs.1,200/-, as assessed by the Tribunal, may be accepted. The appellants claimed that the deceased was aged 35 years at the time of accident and the Tribunal also accepted it to be correct. Hence, I hold that the deceased was aged 35 years at the time of accident. 10. Now it is to be seen as to what should be the right multiplier and deduction in order to award the just compensation to the claimants. The Tribunal deducted 1/3rd of the amount out of Rs.1,200/- and arrived at dependency at Rs.800/- per month. The Tribunal applied 14.81 multiplier and awarded the said compensation. I n Sarala Varma Vs. Delhi Transport Corporation[1] the apex Court held that 1/4th of the amount is liable to be deducted, if the dependents are 4 to 6 and multiplier 6 is to be applied in the case of the deceased aged between 31 to 35 years. Applying the same to the present case, an amount of Rs.300/- is liable to be deducted out of Rs.1,200/- and therefore, the dependency would be arrived at Rs.900 per month. Applying 16 multiplier to the same, the total amount of dependency would be Rs.1,72,800/- (900 X 12 X 16). The Tribunal has not awarded compensation towards consortium and funeral expenses. I am of the view that the appellants are entitled for Rs.15,000/- towards consortium and Rs.2,000/- towards funeral expenses. 11. Thus, the appellants are entitled for a total compensation of Rs.1,89,800/-, whereas the Tribunal has awarded Rs.1,42,176/-. Hence, the appellants are entitled for enhancement of compensation of Rs.47,624/- rounded off to Rs.47,600/-. The enhanced amount shall carry interest at the rate of 6% per annum from the date of petition till the date of realization. Out of the enhanced amount, the first appellant is entitled for the consortium of Rs.15,000/- and the balance amount is to be shared in the same proportion by the remaining appellants, as apportioned by the Tribunal. 12. Accordingly, the order in O.P.No.161 of 1990 dated 03.04.1996 on the file of the Motor Accidents Claims Tribunal (I Additional District Judge), West Godavari, Eluru, is modified to the extent indicated above. The Civil Miscellaneous Appeal is allowed in part. There shall be no order as to costs. ________________________ JUSTICE NOUSHAD ALI February , 2010 Bvv [1] 2009 (6) SCC 121