THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No.1841 of 2005 Date: 10.09.2009 Between: Gande Lavanya and others. ..Appellants And A.P. State Road Transport Corporation and another. ..Respondents THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No.1841 of 2005 JUDGMENT: (Per BCK, J) This appeal is directed against order dated 06.11.2004 passed by the Motor Accident Claims Tribunal-cum-I Additional District Judge, Nizamabad, passed in O.P.No.731 of 1999 filed by the appellants/claimants seeking enhanced compensation. The parties will be hereinafter referred to as they are arrayed before the Tribunal. First claimant is the wife, second claimant is the father and third claimant is the mother of late Gande Nagesh (hereinafter referred to as the deceased). On 22.04.1999 at about 8.00 a.m., the deceased boarded A.P.S.T.C. bus bearing No.AP 10 Z 3400 at Havely Ghanapuram bus stage in order to go to his native place - Reddypally Village. It is alleged that the driver of the bus drove the bus in a rash and negligent manner without receiving signal from the conductor of the bus and due to that impact, the deceased, who was at the entrance of the bus, fell down from the bus and the bus ran over the deceased. The deceased died on the way to Gandhi Hospital. On receiving the report, Police registered a case in Crime No.50 of 1999. The deceased was aged about 24 years. He was running kirana and general stores and also doing foodgrains business on commission basis. He was earning Rs.6,000/- per month from kirana business and Rs.8,000/- per month from foodgrains business. The deceased would have lived up to 70 years and would have contributed all his income to the claimants. The claimants claimed total compensation of Rs.10,00,000/-. Second respondent filed a counter. First respondent filed a memo adopting the counter filed by second respondent. The respondents have denied the averments of the claim petition with regard to the age, avocation and income of the deceased. It is also denied that the accident occurred due to rash and negligent driving of the driver of the bus. It is further contended that while the bus bearing No.AP 10 Z 291 was on the route from Nizamabad to Kamareddy during second down trip and when it reached near Dharmaram (B) Village at Tuljabhavani Industries Building, the bus bearing No.MH 20 2779, belonging to Maharashtra State Road Transport Corporation (MSRTC), of Nanded Depot, came in opposite direction in a rash and negligent manner with high speed and that the said MSRTC bus was trying to overtake a lorry coming nearby the said APSRTC bus and then the driver of the APSRTC bus applied brake to slow down the vehicle and in that process due to rash and negligent driving of the driver of MSRTC bus, some passengers traveling in APSRTC bus bearing No.AP 10 Z 291 received simple injuries. The name of the deceased was not in the list of injured persons. It is further contended that since the accident occurred due to the rash and negligent driving of the driver of MSRTC bus, the respondents are not liable to pay compensation to the claimants. The Tribunal framed the following issues: 1. Whether the accident was due to rash and negligent driving of the APSRTC bus bearing No.AP 10 Z340 by its driver? 2. Whether the petitioners are entitled for compensation and from which of the respondents? 3. To what relief? On behalf of the claimants, first claimant was examined as P.W.1 and one Venkat Ram Reddy was examined as P.W.2 and Exs.A1 to A5 were marked. None was examined on behalf of the respondents and no documents were marked on their behalf. The Tribunal, on appreciation of the oral and documentary evidence, came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the APSRTC bus bearing No.AP 10 Z 3400. On issue No.2, the Tribunal has taken the income of the deceased at Rs.2,400/- per month and after deducting 1/3rd towards personal expenditure of the deceased, by applying ‘18’ multiplier, calculated the loss of dependency at Rs.3,45,600/-. Apart from that amount, a sum of Rs.15,000/- towards consortium to first claimant, Rs.10,000/- towards loss of estate and Rs.5,400/- towards transportation of dead body and funeral expenses were awarded to the claimants, total amounting to Rs.3,76,000/-. The main contention of the learned counsel for the appellants/claimants is that the Tribunal has not considered the evidence on record in a proper perspective. His submission is that the deceased was doing kirana business, commission agent business and agriculture and in the circumstances, the Tribunal was not justified in denying the oral evidence of P.W.1 and Ex.A5 – income certificate issued by the Mandal Revenue Officer (MRO). The learned counsel further submitted that the income of the deceased should have been fixed in the light of the judgment of the Supreme Court in Lata Wadhwa vs. State of Bihar[1]. The learned counsel for the respondents submitted that in the absence of any satisfactory evidence with regard to the income of the deceased, the Tribunal has rightly determined the income of the deceased at Rs.2,400/- per month and therefore, no interference is called for. The only point that arises for consideration in this appeal is that whether determination of the income of the deceased by the Tribunal is justified in the facts and circumstances of the case. As far as the issue of negligence is concerned, since no arguments have been advanced and there is no appeal by the respondents challenging the finding of the Tribunal, the same became final and there is no need to discuss the said issue. As far as the income of the deceased is concerned, on behalf of the claimants, first claimant was examined as P.W.1 and Exs.A1 to A5 were marked. According to P.W.1, the deceased was earning Rs.15,000/- per month. In Ex.A5 – income certificate issued by MRO, it is certified that the deceased was earning Rs.1,50,000/- per annum. According to P.W.1, the deceased was earning Rs.5,000/- per month from his commission business, Rs.5,000/- per month from agriculture and Rs.5,000/- per month from kirana shop. According to her, licence was issued in the name of the deceased to run kirana shop. Admittedly the said licence is not filed before the Court. No documents have been filed to show that the deceased was himself running kirana shop or was doing any commission business. She has admitted that her father-in-law is running kirana shop. According to P.W.2, the deceased was doing business and earning approximately Rs.6,000/- per month. However, in the cross-examination, P.W.2 admitted that he has no acquaintance with the deceased prior to the date of accident. Therefore, the evidence of P.W.2 cannot be considered to determine the income of the deceased. As far as Ex.A5 is concerned, MRO who issued said certificate has not been examined. Even according to the said certificate, Acs.2.25 guntas of land in survey No.328/e at Reddypally Village stands in the name of the father of the deceased. It also shows that even the kirana shop is also in the name of the father of the deceased. Therefore, the only presumption that can be drawn is that the deceased was assisting his father in his business as well as in agriculture. In the absence of any satisfactory evidence, the income of the deceased has to be fixed considering the facts and circumstances of the case. It appears that considering the business of the father, agricultural land owned by the father and the age of the deceased, it appears to be just and reasonable to take the income of the deceased at Rs.100/- per day. Thus, the monthly income of the deceased can be assessed at Rs.3,000/- and if 1/3rd is deducted towards personal expenses of the deceased, the loss of dependency comes to Rs.2,000/- per month, means Rs.24,000/- per annum. As per the latest judgment of the Supreme Court in Sarala Verma vs. Delhi Transport Corporation[2], the appropriate multiplier is ‘17’. Thus, the total loss of dependency comes to Rs.4,08,000/-. As per the above referred judgment of the Supreme Court, first claimant is entitled to a sum of Rs.10,000/- towards consortium and all the claimants are entitled to a sum of Rs.10,000/- towards loss of estate. The amount awarded by the Tribunal towards funeral expenses and transport charges i.e., Rs.5,400/- need not be disturbed. Thus, the total compensation comes to Rs.4,33,400/-, out of which, first claimant shall take Rs.3,00,000/-, second claimant shall take Rs.80,000/- and third claimant shall take Rs.53,400/-. The Tribunal awarded interest at 9% p.a., from the date of the claim petition till realization. The same appears to be proper. Though the other side counsel distinguished the decisions, cited as above, on facts, it is made clear that they are taken as guidance for determining the compensation. In view of the above discussion, the appeal is allowed to the extent indicated above. No order as to costs. ___________________ A. GOPAL REDDY, J 10th September, 2009 ____________________ B. CHANDRA KUMAR, J GHN [1] (2001) 8 SCC 197 [2] (2009) 6 SCC 121 = 2009(3) Supreme Today 487