THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY MOTOR ACCIDENTS CIVIL MISCELLANEOUS APPEAL No.3658 OF 2009 DATED: 13-08-2010 JUDGMENT: This appeal is directed against the order, dated 01-03-2006, in O.P.No.154 of 2005 on the file of the learned Chairman, MACT-cum-I Additional District Judge, Karimnagar, wherein the claim of the respondents 1 to 4 herein was allowed in part awarding compensation of Rs.3,31,000/- with interest @ 7.5% p.a. from the date of petition till the date of deposit. 2. Heard learned counsel for the appellant and the learned counsel for the respondents. Perused the record. 3. Respondents 1 to 4 herein filed the claim application seeking compensation of Rs.4,00,000/- for the death of the deceased-Easampalli Soundarya, who died in a motor vehicle accident that occurred on 09-09-2004. 1st claimant is the husband and the claimants 2 to 4 are the minor children of the deceased. According to the claimants, on the date of the accident, the deceased, her husband, and other relatives were returning in an auto to their village, Kakarlapalli village and at about 7.00 p.m. when the auto reached the outskirts of Gangapuri, the lorry bearing No.AP.37.T.6359, driven by the 5th respondent herein in a rash and negligent manner, dashed against the auto as a result of which the deceased sustained injuries and she was shifted to Surya hospital, Godavarikhani and later shifted to Hyderabad, but she succumbed to injuries on 14-09-2004. It is pleaded that the deceased was aged 35 years and working as a tailor and earning Rs.100/- to Rs.200/- per day besides attending to the household work. The appellant-insurer filed a counter opposing the claim and denying their liability to pay the compensation. 4. On the strength of the pleadings, the Tribunal framed the following issues: 1. Whether the accident had occurred due to rash and negligent driving of the vehicle bearing No.AP-37-T- 6359 by the first respondent? 2. Whether the petitioners are entitled to recover compensation and if so to what amount and from whom? 3. To what relief? 5. During enquiry, 1st claimant was examined as P.W.1 and Exs.A1 to A11 were marked on behalf of the claimants. No oral evidence was adduced, but Ex.B1- copy of the policy was marked. 6. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the lorry bearing No.AP.37.T.6359 by its driver. The Tribunal further held that the claimants are entitled for total compensation of Rs.3,31,000/-. Accordingly, award was passed for the said amount with interest @ 7.5% p.a. Aggrieved by the same, the present appeal is filed by the insurer. 7. The only contention raised by the learned counsel for the appellant is that the Tribunal having held that the claimants failed to establish their plea that the deceased was earning Rs.100/- to Rs.200/- per day from tailoring, ought to have taken the annual income into consideration at Rs.15,000/- p.a. and estimated the loss of dependency after deducting 1/3rd thereof towards personal expenses. He would further contend that the Tribunal erred in taking a sum of Rs.1500/- per month as the value of the services rendered by the deceased to the family. Learned counsel for the respondents-claimants, on the other hand, would seek to justify the award. 8. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the lorry by its driver is not seriously disputed. Though the claimants have pleaded that the deceased was earning Rs.100/- to Rs.200/- per day from tailoring, they have not adduced any evidence in that regard. The said claim of income from tailoring remained totally unsubstantiated. The Tribunal has, however, taken into consideration the value of the services rendered by the deceased to the family as Rs.1500/- per month which comes to Rs.18,000/- per annum and applying the multiplier ‘15’ suitable to her age ‘35 years’, estimated the loss of dependency in a sum of Rs.2,70,000/- by way of loss of future income and the Tribunal has taken the amount of Rs.1500/- per month as the value of the services rendered by the deceased to the family. The question of awarding any compensation towards loss of future income does not arise, especially when the plea of the claimants that the deceased was earning income of Rs.100/- or Rs.200/- per day remained unsubstantiated. Hence, the amount of Rs.2,70,000/- arrived at by the Tribunal has to be taken only as value of the loss of services to the family by the deceased. Just because the claimants have failed to establish that the deceased was earning Rs.100/- or Rs.200/- per day from tailoring work, the Tribunal was not prohibited to estimate the loss of services and awarding compensation in that regard. If the contention of the learned counsel for the appellant that the Tribunal ought to have taken only the notional income into consideration is to be upheld then it would only add up to the compensation that is awardable. It is certainly open to the Tribunal to award compensation towards loss of income based on the income proved or in the absence of any evidence regarding the income, by taking the notional income into consideration. At the same time, it is open to the Tribunal to award compensation towards loss of services of the deceased to the family also. The two sub-heads under which the compensation can be awarded are mutually exclusive and not having any overlap. In the present case, as the plea of the claimants that deceased was earning Rs.100/- to Rs.200/- per day on tailoring work remained unsubstantiated, the Tribunal has not awarded any compensation based on the alleged income of the deceased. The claimants did not prefer any appeal in that regard. The Tribunal awarded a sum of Rs.2,70,000/- towards the value of loss of services, by estimating the value of services at Rs.1500/- per month, having regard to the fact that the deceased is having three children i.e., two daughters, aged 14 and 7 years, and a son aged 11 years and that as on the date of the death all the three children are minors, badly in need of the support of the mother. The sudden death of the deceased on account of the accident certainly deprived the three children of the valuable services which the deceased was rendering to them for their uplift and welfare. Under those circumstances, the amount of Rs.1500/- per month taken by the Tribunal towards multifarious household services rendered by the deceased to the family cannot be considered to be excessive or unreasonable. The Tribunal awarded a sum of Rs.30,552/- towards medical expenses based on the bunch of medical bills-Ex.A7. 9. Having regard to the fact that the deceased is hospitalized initially at Godavarikhani and later shifted to Hyderabad and she died about 5 days after the accident while undergoing treatment, it is considered that the amount awarded towards medical expenses does not call for interference, especially when the same is supported by the bunch of medical bills-Ex.A7. The amount of Rs.15,000/- awarded to the 1st claimant towards loss of consortium does not also call for interference. However, the amount of Rs.5000/- each awarded to the claimants 2 to 4 towards loss of love and affection is considered to be surplus in view of the compensation awarded towards loss of household services, which necessarily includes the component of love and affection on the part of the deceased towards her children. Hence, the amount of Rs.15,000/- is held liable to be deducted. The claimants are therefore held entitled to a total compensation of Rs.3,16,000/- with interest @ 7.5% p.a. from the date of the petition. The impugned award is modified accordingly. 10. In the result, the appeal is allowed in part to the extent stated above. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 13th August, 2020 Tsy