THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR M.A.C.M.A.No.2365 of 2009 Dated:- 10th June, 2011 Between The General Superintendent, PWD Workshop & Stores …Appellants / Respondents AND S.Neelaiah and others …Respondents / Petitioners THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR M.A.C.M.A.No.2365 of 2009 JUDGMENT:- The General Superintendent, PWD Workshop & Stores – the appellant herein is challenging the award dated 23.07.2007 passed in O.P.No.2712 of 2003 by the Motor Accidents Claims Tribunal – cum – IV Additional Metropolitan Sessions Judge – cum – XVIII Additional Chief Judge, Hyderabad, (‘the Tribunal’, for brevity) whereby and whereunder, respondents 1 to 3 herein were awarded a compensation of Rs.6,68,000/- along with 7.5% interest per annum from the date of petition till the date of realization. 2. The petitioner herein is the first respondent, Respondent Nos.1, 2 and 3 herein are petitioners 1, 2, 3, Respondent No.4 herein is the second respondent and the respondent No.5 herein is the third respondent before the Tribunal. For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the Tribunal. 3. The brief facts of the case are as follows:- The first claimant – S.Neelaiah is the father, second claimant – S.Ratnamma is the mother and the third claimant – S.Prakash is the brother of the deceased – Sri Sham @ Sham Sunder. On the fateful day of 09.01.2003, the deceased and some others were proceeding in a Tata Sumo bearing registration No. AP-29-V-2021 and P.W.2 – G.Yadaiah and some others were proceeding in another Tata Sumo bearing registration No.AP-9-W-8704, to Shabarimala and at about 02:45 P.M, when they reached the outskirts of Mudireddipally Village and were crossing a culvert, a truck belonging to the appellant herein bearing registration No.ADT-4967, being driven by its driver – Abdul Samad in rash and negligent manner and at high speed, came and dashed against the Tata Sumo in which the deceased and others were traveling. Due to the said accident, three persons died on the spot and the deceased and others sustained severe injuries and were shifted to NIMS Hospital, Hyderabad. However, while undergoing treatment, the deceased succumbed to injuries on 14.01.2003. The Police, Balanagar, registered a case in Crime No.4 of 2003 against the driver of the truck for the offences punishable under Sections 304-A and 337 IPC. 4. The deceased was aged about 26 years as on the date of the accident and doing civil contract works, particularly, laying of telephone cables, since five years prior to his death and earning an annual income of Rs.55,000/-. Contending that they have lost the earning member of the family, the claimants instituted the O.P. before the Tribunal claiming a total compensation of Rs.10,00,000/-. 5. The first respondent is the owner of the offending truck, second respondent is the owner of the Tata Sumo in which the deceased travelled and the third respondent is the Insurance Company with which the Tata Sumo in which the deceased travelled was insured as on the date of the accident. The first respondent filed a counter and denied the material averments made by the claimants with regard to the age, occupation and the income of the deceased. Similarly, the narration of the accident by the claimants is also denied. The main contention of the first respondent is that the accident had not occurred due to the rash and negligent driving of the driver of the truck and, therefore, it is not liable to pay the compensation to the claimants. The third respondent – Insurance Company filed a counter and its main contention is that the accident occurred due to the rash and negligent driving of the driver of the truck and, therefore, it is not liable to pay the compensation to the claimants. 6. On behalf of the claimants, the first claimant himself was examined as P.W.1 and one G.Yadaiah was examined as P.W.2 and Exs.A.1 to A.13 were marked. No oral and documentary evidence was let in on behalf of the respondents except marking Ex.B.1 – Copy of the Insurance Policy of the Tata Sumo in which the deceased travelled. 7. The Tribunal, on appreciation of the oral and documentary evidence on record, accepted the evidence of P.W.2 and held that the evidence of P.W.2 and the recitals of the documents filed by the claimants, i.e., Exs.A.1 to A.5 proves that the accident occurred due to the rash and negligent driving of the driver of the truck and fastened the liability of the first respondent. The Tribunal took the income of the deceased at Rs.3,000/- per month and after deducting 1/3rd towards personal expenditure and by applying the multiplier of 18 basing on the age of the deceased, awarded a compensation of Rs.6,68,000/- to the claimants. Aggrieved by the said award, this appeal has been preferred by the owner and the custodian of the offending truck. 8. The learned Government Pleader for Arbitration representing the appellant submitted that in a batch of cases, i.e., in O.P.No1210 of 2003 and batch, the Tribunal held that the drivers of both the vehicles are responsible for the accident and that the present O.P. also arises out of the same accident and, therefore, the Tribunal ought to have apportioned the liability on both the drivers. It is also his submission that the Tribunal erroneously awarded excessive amount as compensation. 9. Per contra, Smt. A. Chaya Devi, learned counsel for the respondents/claimants submitted that the Tribunal was justified in holding that driver of the offending truck was responsible for the accident as there is no other evidence adduced by the first respondent with regard to the accident. It is also her submission that the compensation awarded by the Tribunal is just and reasonable and warrants no interference of this Court. However, she agreed to the contention of the learned counsel for the appellant that in case of bachelors, the mother’s age is the criteria for taking the appropriate multiplier. 10. I have considered the above rival submissions. The points that arise for consideration in this appeal are (1) whether the Tribunal was justified in holding that the driver of the truck is responsible for the accident; and (2) what is the just and reasonable compensation to be awarded to the claimants in the circumstance of the case. Point No.1:- 11. The specific case of the claimants is that the driver of the truck drove the same in rash and negligent manner at high speed and dashed against the Tata Sumo in which the deceased was traveling, whereas, the specific case of the first respondent is that the driver of the truck was not negligent in driving the same and it is the driver of the Tata Sumo in which the deceased was traveling who was negligent in driving the same and is responsible for the accident. Evidence has been let in by the claimants. The first claimant was examined as P.W.1 and through him, Ex.A.1 - Certified Copy of the FIR, Ex.A.2 – Certified Copy of the Inquest Report, Ex.A.3 – Certified Copy of the Postmortem Report, Ex.A.4 – Certified Copy of the MVI Report and Ex.A.5 – Certified Copy of the Charge Sheet have been marked. The recitals of these documents go to show that the accident was not due to any mechanical defect in the vehicle in which the deceased was traveling and that the driver of the truck was charge-sheeted for the offences punishable under Section 302-A IPC. Moreover, the deposition of P.W.2 – G.Yadaiah reveals that he was traveling in another Tata Sumo and that the Tata Sumo in which the deceased was traveling was just coming behind their vehicle. He specifically deposed that the driver of the offending truck came in opposite direction in rash and negligent manner at high speed and dashed against the Tata Sumo in which the deceased was traveling. It has to be seen that three persons died on the spot and even the truck went into the nearby fields dragging the Tata Sumo in which the deceased was traveling. The evidence of P.W.2 and the recitals of the above referred exhibits clinchingly establish that the accident occurred due to rash and negligent driving of the driver of the offending truck. Moreover, there is no contra evidence in this case. Though the first respondent claimed that a different view was taken in O.P.No.1210 of 2003 by the Tribunal, a copy of the said judgment is not filed either before the Tribunal or before this Court. Mere taking a plea is not sufficient in the absence of any substantial evidence to prove the same. The first respondent ought to have adduced evidence and ought to have examined the driver of the truck. In the absence of any contra evidence to the evidence let in by the claimants, the finding of the Tribunal that the driver of the truck alone is responsible for causing the accident cannot be find fault with. This point is answered accordingly. Point No.2:- 12. As far as the income of the deceased is concerned, admittedly, the deceased was an income tax assessee. The documents filed by the claimants go to show that he is a civil contractor. The Income Tax returns submitted by the deceased to the Income Tax Department have been filed as Exs.A.6 to A.10, i.e., income for the assessment years 1999 – 2000, 2000 – 01, 2001 – 02, 2002 – 03, 2003 – 04 respectively. Of course Ex.A.10 – Income Tax returns of the deceased for the assessment year 2003 – 04 has been filed after the death of the deceased by his father in the capacity of the Legal Representative of the deceased. In the Income Tax returns, the income of the deceased was shown as Rs.43,330/- for the assessment year 2000 – 2001, Rs.49,180/- for the assessment year 2001 – 02, Rs.42,650/- for the assessment year 2002 – 2003 and Rs.82,550/- for the assessment year 2003 – 2004 and the status of the deceased, for all the years, is shown as individual. In the above circumstances, the Tribunal seems to be justified in taking the income of the deceased at Rs.4,500/- per month. Though the income tax returns of the deceased for the assessment year 2003 – 2004 has been filed after the death of the deceased by his father, but the same appears to be for the works done by the deceased himself during his life time. The gross bill received from the contract works was shown as Rs.8,05,500/- and after deducting the expenses, the net profit was shown as Rs.82,550/-. 13. In the above circumstances, I consider it just and reasonable to take the income of the deceased at Rs.5,000/- per month. Thus, the annual income of the deceased is Rs.60,000/- (Rs.5,000/- X 12). As far as deduction towards personal expenditure is concerned, as per the decision of the Apex Court in case between Sarla Verma Vs. Delhi Transport Corporation[1], 50% of the income should be deducted in case of bachelors and since the deceased is bachelor, 50% of his income is deductable. Thus, the net income of the deceased should be Rs.2,500/- per month and Rs.30,000/- (Rs.2,500/- x 12) per annum. It is settled law that in case of bachelors, the mother’s age has to be taken as criteria for choosing the multiplier. Since the age of the mother of the deceased is shown as 45 years in the claim petition, the appropriate multiplier applicable is 14. Thus, the total loss of dependency comes to Rs.4,20,000/- (Rs.30,000/- x 14). The award Rs.20,000/- in total of the Tribunal towards loss of expectancy of life, estate and other incidental charges appears to be reasonable. Admittedly, the deceased was treated at NIMS Hospital from 09.01.2003 to 14.01.2003 and the sum of the bills filed by the claimants is Rs.29,909/-. In the circumstance, I consider it just and reasonable to award an amount of Rs.30,000/- towards medical expenses and Rs.2,000/- towards attendant charges. 14. Thus, the claimants are entitled for a total compensation of Rs.4,72,000/- (Rs.4,20,000/- + Rs.20,000/- + Rs.30,000/- + Rs.2,000.-). Since during the pendency of this appeal the mother of the deceased passed away, the amount of compensation has to be apportioned between the father and the brother of the deceased. The first respondent herein/father of the deceased also filed an affidavit stating that there are no other legal heirs of the deceased. In view of the same, the first respondent herein/father of the deceased is entitled for an amount of Rs.3,72,000/- and the third respondent herein/brother of the deceased is entitled for the remaining amount of Rs.1,00,000/-. I am not inclined to interfere with the award of interest by the Tribunal which stands as it is. 15. In the result, the award of the Tribunal stands modified to the extent indicated above and the M.A.C.M.A. is allowed in part. There shall be no order as to costs. _____________________________ JUSTICE B.CHANDRA KUMAR 10th June, 2011 Bvv [1] AIR 2009 SC 3104