THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A.No.1023 of 2008 & M.A.C.M.A.No.3577 of 2011 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) Both the appeals are directed against the award passed in O.P.No.1246 of 2001 by the, Chairman, Motor Accidents Claims Tribunal – cum – District Judge, Ranga Reddy District, on 09.04.2007. M.A.C.M.A.No.1023 of 2008 is filed by the claimants for enhancement of the compensation. M.A.C.M.A.No.3577 of 2011 is filed by the insurance company for rejection of the claim of the claimants on the ground that they have failed to establish the income of the deceased as on the date of his death. The claimants, who are the mother, two younger brothers and two younger sisters of the deceased R.Mahinder, filed the application under Section 166 of Motor Vehicles Act claiming compensation of Rs.50,00,000/- for the death of the deceased in a motor accident. According to the claimants, the deceased was aged about 25 years and used to work as a Technical Leader in E-Matrix Info Sol Limited at Ashok Bhoopal Chambers, S.P. Road at Secunderabad and used to draw a monthly salary of Rs.50,000/- per month at the time of his death. He was a bachelor, his father predeceased him. On 15.08.2001 at about 6.20 A.M, the deceased and his friend G.Surender completed their work in their office and proceeded on a Motorcycle from their office to their residences and when they reached near Shyamlal building, in front of Maharshi Girls College, one Setwin Mini Bus bearing No. ADT 9064 came in a rash and negligent manner and dashed their motorcycle from behind, as a result of which, the deceased fell down on the road and died on the spot. On the report, the Station House Officer, Begum Pet police station registered the case in Crime No.312 of 2001 under Section 304-B IPC against the driver of the Setwin Bus. The 1st respondent, who is the owner-cum-insured, and 2nd respondent, who is the insurer of the said bus, both are liable to pay compensation to the claimants. The 1st respondent has filed the counter pleading that they are not the owner of the said bus and they are not liable to pay any compensation and the petitioners are put to strict proof with regard to income and age of the deceased. It is further pleaded that there is no negligence on the part of the driver of the bus. The 2nd respondent/insurance company has filed the counter denying the age and income of the deceased and dependency of the claimants and pleaded that the accident was not occurred due to rash and negligent driving of the driver of the bus and the petitioners are put to strict proof of the same. The vehicle was registered in the name of the 1st respondent for the purpose ensuring repayment of the loan taken by the entrepreneur groups and the 1st respondent is not the real owner. The owner and insurer of the motorcycle are necessary and proper parties. The compensation claimed by the petitioners is highly excessive and exorbitant and they are not entitled for the same and prayed for dismissal of the petition. On the above pleadings, the Tribunal has framed the following issues: (1) Whether the pleaded accident had occurred resulting in the death of the deceased, Arutla Mahinder, due to the rash and negligent driving of the Setwin bus bearing registration number ADT 9064, by its driver? (2) Whether the petitioners are entitled to any compensation, and, if so, to what quantum and what is the liability of the respondents? (3) To what relief? The 1st petitioner examined herself as P.W.1 and examined the eyewitness as P.W.2 and former colleague of the deceased was examined as P.W.3 and got marked Exs.A.1 to A.10 and Exs.X.1 and X.2. On behalf of the respondents, R.Ws.1 to 5 were examined and Exs.B.1 to B.8 were marked. Taking into consideration of the said oral and documentary evidence, the Tribunal held the issue No.1 in favour of the petitioners holding that the accident was occurred due to rash and negligent driving of the driver of the bus. With regard to issue No.2, the Tribunal accepting the salary of the deceased as Rs.50,000/- per month and deducted Rs.30,000/- towards 1/3rd personal expenses of the deceased, income tax, profession tax, traveling and incidental expenses and taken Rs.20,000/- as loss of dependency of the claimants and taking the age of the mother of the deceased into consideration, applied multiplier 8 and arrived the loss of dependency as Rs.19,20,000/-. Apart from that, the conventional amounts of Rs.15,000/- towards loss of estate and Rs.5,000/- towards transport and funeral expenses were also awarded. In total, the Tribunal awarded an amount of Rs.19,40,000/-. Aggrieved by the said award, the claimants have filed the appeal for enhancement of the compensation and the insurance company has filed the appeal for dismissal of the application. The Standing Counsel for the insurance company has pleaded that the deceased was not earning Rs.50,000/- as on the date of his death and the claimants have failed to establish the salary certificate Ex.A.6 by examining the author of the said document and the evidence produced by them establishes that the said company, in which the deceased alleged to have been working, was not in existence as on the date of his death. Hence, as the claimants have failed to establish the income of the deceased as on the date of his death, they are not entitled for any compensation. On behalf of the claimants, it is pleaded that the Tribunal has rightly accepted the monthly income of the deceased as Rs.50,000/- by taking into consideration of Ex.A.6 salary certificate and the evidence of P.W.3 and the admissions made by the witnesses examined on behalf of the insurance company, but wrongly deducted Rs.30,000/- towards the 1/3rd share of the deceased, income tax, profession tax, traveling and incidental expenses and erred in arriving at the loss of dependency as Rs.20,000/- per month. It is further pleaded that the wrong multiplier was applied by the Tribunal and the proper multiplier applicable is 14. As such, the claimants are entitled for the compensation of Rs.50,00,000/- as claimed by them. According to the claimants, the deceased used to work as Technical Leader in E-Matrix Info Sol Limited at Ashok Bhoopal Chambers, S.P. Road at Secunderabad and used to draw monthly salary of Rs.50,000/- per month and in support of the same, they have got marked Ex.A.6 salary certificate. To prove the said salary certificate Ex.A.6, the claimants have examined P.W.3, who was the Former colleague of the deceased and he identified the signature on Ex.A.6 salary certificate as that of Mr.Dexter, who was the Managing Director and also deposed about the deceased working as a Technical Leader in the said concern along with him on a consolidated salary of Rs.50,000/- per month. The counsel for the insurance company has pleaded that as the author of the said document Ex.A.6 was not examined before the Tribunal, the same was not proved, as such it cannot be relied upon. He further pleaded that the said E-Matrix Info Sol Limited was not in existence as on the date of the death of the deceased and there is no proof to show that the deceased was drawing Rs.50,000/- per month as on the date of his death. In support of their contention, they examined R.W.Nos.1 to 5. R.W.1 is the Assistant Manager in the 2nd respondent/insurance company. According to him, they have appointed one of their panel investigators to know the employment of the deceased. The investigator submitted his report stating that the deceased was not working as an employee in the said firm and he is only a share holder in E-Matrix Info Sol Limited. He further informed that the said company was not in existence in the address mentioned by the petitioners i.e. at Flat No.508, Ashok Bhoopal Chambers, S.P. Road, Secunderabad. He marked the report of the investigator as Ex.B.2. In the cross-examination, he admitted that Ex.B.2 discloses that E-Matrix office was shifted about 6 months back from its former premises at Ashok Bhoopal Chambers, S.P. Road. He also admitted that the said concern was registered with Registrar of companies in the year 2000 for doing business in development, export and import of software. Mr. Dexter is one of the directors of the said company. The deceased was shown as shareholder having 200 shares in the said company. He also admitted that the said investigator collected salary certificate of the deceased and copy of registration certificate of the company and submitted the same to their company. Therefore, from the evidence of R.W.1, it is evident that the investigator appointed by the company has obtained the salary certificate of the deceased and also the registration copy of the said company. It is not the case of the investigator that the company is not in existence, but it is only shifted from the place mentioned in the petition. R.W.2, who is the Assistant Administrative Officer of the insurance company, who is dealing with the claim of the petitioners, has also stated that they have appointed two investigators and the report of the investigator is marked as Ex.B.3. According to him, he cannot say whether the E-Matrix office was in existence or not as on the date of Ex.B.3. He admitted that the investigator, who submitted Ex.B.3, is an inefficient investigator. According to him, they appointed subsequently two investigators. He also admitted that the E-Matrix company was a corporate body and copy of certificate of registration was obtained by the investigator from the petitioners. He also admitted that Ex.B.2 is the opinion of the 2nd investigator. In Ex.B.2 it is mentioned that one Dexter is one of the directors of the said company. He also stated that the investigation collected the memorandum of articles of the company from the Registrar of companies. He also admitted that Ex.B.3 is enclosed with the copy of the salary certificate. R.W.3 is another investigator. According to him, he approached the Registrar of companies and made enquiries about the particulars of the company. During his enquiries, he was informed by the concerned department, that the deceased was only a shareholder in the said company except the said information, they have not furnished any particulars about the said company and he submitted his report to the insurance company. The other witness examined by the insurance company is R.W.4, who submitted his report Ex.B.4. He has mentioned in Ex.B.4 that E- Matrix company was shifted from Ashok Bhupal Chambers at S.P. Road, to Ashok My Home Chambers and at that place also the said company is not in existence. R.W.5 is UDC in the office of Registrar of companies. He speaks about the returns filed by the E-Matrix Info Sol Company up to the year 2001 and the non-filing of such returns and the said company incurring losses. His evidence shows that the total turnover or income from services of the said company for the period ending 31.03.2001 was Rs.13,95,000/- and the company incurred a loss of Rs.5,00,000/- and that the said company had paid a sum of Rs.15,10,470/- towards salaries to its employees including the salaries of the Managing Director and director. Therefore, from the evidence of R.Ws.1, 2, 4 and 5, it is evident that the E-Matrix Info Sol Limited is a registered company and it was existed in Ashok Bhupal Chambers, S.P. Road, and subsequently shifted from that place. The investigators themselves have collected the salary certificate of the deceased from the said company, but they are disputing about the correctness of the said salary certificate. The main contention of the standing counsel for the insurance company is that since the said company has not submitted any returns to the Registrar of Companies subsequent to March 2001, it is clear that the said company is not in existence. The said contention of the counsel for the insurance company cannot be accepted. Simply because the returns were not submitted to the registrar of companies, it cannot be presumed that the said company is not in existence. If the company may not have filed the returns, it is for the registrar of companies to take necessary action against the said company for not submitting the returns. To prove Ex.A.6 salary certificate, petitioners examined P.W.3 former colleague of the deceased. According to him, he is working as Managing Director and Chief Technical Officer, Pandora Networks public limited since 3 years. Earlier he worked as Chief Architect in E-Matrix Info Sol, from April, 2000 to September, 2001. The deceased was a Technical leader in his former concern. The deceased used to draw consolidated salary of Rs.50,000/- and he (P.W.3) used to draw Rs.70,000/- per month. Mr. Dexter was Managing Director and he can identify the signature of Mr.Dexter. Ex.A.6 is the salary certificate issued by the Mr.Dexter. Ex.A.6 salary certificate was issued on 01.09.2001. According to P.W.3 he worked in the said Company up to September, 2001. Therefore, as on the date of accident and issuance of said certificate, Ex.A.6, P.W.3 was working in the E-Matrix Info Sol Limited. Moreover, the Tribunal has observed that the claimants at the stage of arguments got the evidence reopened and sought to summon and examine the person connected with the salary certificate and filed I.A.No.39 of 2007, which was allowed and handover summons were also issued. However, the claimants could not produce the witness before the Court on the ground that the witness was out of country; as such they could not examine the said witness, who has issued the Ex.A.6 salary certificate. Therefore, the claimants could not produce the witness, who has issued Ex.A.6 salary certificate, in view of his non-availability in the country even though the steps were taken by them to examine him. On the other hand, they could able to prove Ex.A.6 salary certificate by examining P.W.3, who is well acquainted with the signature of the said Dexter, who issued the Ex.A.6 salary certificate, as per Section 67 of Indian Evidence Act. Apart from the salary certificate Ex.A.6, the claimants have got marked Ex.A.10 bank statement of the deceased, which shows that an amount of Rs.50,000/- was credited to his account on 5th February, 2001 towards salary for the month of January, 2001 and another sum of Rs.50,000/- on 13th March, 2011 towards salary for the month of February, 2001 and another amount of Rs.49,000/- on 26th April, 2001 towards salary for the month of March, 2001. Subsequently, there is no mention about the crediting of the salary to that account. P.W.3 has stated that the deceased was a qualified graduate in computer and he was pursuing his post-graduation course. He had a certificate in DOE-ACC-B level, which is equivalent to Engineering or MCA. He was a Software engineer. He joined in the concern in December, 2000, before that he worked for Five months as a consultant. As a consultant he used to earn Rs.25,000/- per month. Therefore, in view of the qualifications of the deceased and as he worked as a consultant for 5 months in the same company prior to his employment as Technical leader he is drawing Rs.50,000/- as consolidated pay cannot be disbelieved. According to the claimants’ counsel, the E-Matrix Info Sol Limited company was existing as on the date of the death of the deceased and according to the insurance company the said company is not in existence. As already discussed above, the said company was existing as on the date of the death of the deceased and subsequently it was shifted to different places and no material is available on record to show that the said company is in existence at present. Moreover, there is no evidence on record to show that the employment of the deceased was permanent in nature. Therefore, no amount can be awarded towards future prospects of the deceased in the said employment. Thus, the monthly salary of the deceased can be taken as Rs.50,000/- and the annual income of the deceased would be Rs.6,00,000/-. After deducting 30% towards income tax, it comes to Rs.4,20,000/-. Since the deceased is a bachelor, 50% has to be taken into consideration towards his personal expenses as per the decision rendered in “Smt. Sarla Verma and others v. Delhi Transport Corporation and another (2009 AIR SCW 4992)”. Thus, the loss of dependency of the claimants comes to (Rs.4,20,000 – Rs.2,10,000) Rs.2,10,000/-. Since the age of the mother of the deceased as 45 years, the proper multiplier as per Smt.Sarla Verma’s Case is ‘14’. Thus, the total loss of dependency of the claimants comes to Rs.2,10,000 X 14 = Rs.29,40,000/-. The Tribunal awarded Rs.15,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. Thus, the claimants are entitled for total compensation of Rs.29,60,000/-. As per Smt.Sarla Verma’s case (referred supra) the claimants are entitled for interest at 6% P.A. on the compensation amount. In the result, the M.A.C.M.A.No.1023 of 2008 is partly allowed and the compensation awarded by the Tribunal is enhanced to Rs.29,60,000/- from Rs.19,40,000/- with interest at 6% P.A. on the compensation from the date of filing of the petition till the date of realization. In the result, the M.A.C.M.A.No.3577 of 2011 is partly allowed to the extent of reducing the interest to 6% P.A. from 7.5% P.A. on the compensation. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:25-11-2011 Ksp