THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A No. 3819 of 2003 Date: 24.09.2009 Between: United India Insurance Company Ltd., Rep. by its Branch Manager, Vijayawada. .. Appellant/Respondent No.2 And Kunta Rajamani and others. Respondents/Claimants Smt. A. Bhulakshmi. Respondent/Respondent No.1 THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A No. 3819 of 2003 Judgment: (per Hon’ble Sri Justice B. Chandra Kumar) This appeal by the United India Insurance Company Limited, represented by its Branch Manager, Vijayawada, is directed against the judgment and decree dated 12.11.2002 passed in O.P. No. 520 of 1999 by the Motor Accidents Claims Tribunal-cum-Additional District judge, Nizamabad, awarding compensation of Rs.14,65,000/- to the claimants with 9% interest from the date of petition till the date of realization. The parties hereinafter will be referred to as they are arrayed in the Tribunal for the sake of convenience. The brief facts of the case necessary for disposal of this appeal are as follows. The first claimant is the wife, claimants 2 to 4 are the daughters, claimant No.5 is the father and claimant No.6 is the mother of the deceased Kunta Rajareddy, who died in a motor accident. On 19.11.1998 at about 8.00 PM while the deceased was proceeding on his scooter bearing No.AP-25-C-1638 slowly and cautiously from Anhampally village towards Kamareddy and when he reached near BTS School, the offending lorry bearing No.AP-27-T-819, being driven by its driver in a rash and negligent manner at high speed, came from opposite direction and dashed against the scooter and as a result of which, the deceased sustained multiple crush injuries all over his body and died on the way to Gandhi Hospital, Secunderabad. The deceased was aged about 28 years doing agriculture work and milk vending business and earning Rs.18,000/- per month and contributing his earnings to the claimants. Due to the untimely death of the deceased, the claimants have lost the source of their livelihood and they are put to great mental agony and hardship. The claimants have claimed total compensation of Rs.15,00,000/- against the respondents. The first respondent is the owner of the lorry and the second respondent is the Insurance Company with which the vehicle was insured. The first respondent remained ex parte. The second respondent-Insurance Company filed written statement denying the material averments made by the claimants. The age, occupation and income of the deceased as averred by the claimants have been denied. It is also denied that the accident occurred due to rash and negligent driving of the driver of the lorry. It is also averred that the driver had no valid driving licence on the date of accident and the claim of the claimants is highly excessive. The Tribunal framed the following issues. 1. Whether the accident was due to rash and negligent driving of the lorry bearing No.AP-27-T-819 by its driver only? 2. Whether the petitioners are entitled for compensation. If so, to what amount and from which of the Respondents? 3. To what relief? On behalf of the claimants, the first claimant was examined as PW.1 besides examining PWs.2 and 3 and Exs.A1 to A8 were marked. None were examined on behalf of the second respondent- Insurance Company, but the copy of Insurance Policy was marked as Ex.B1. The Tribunal, on appreciation of the entire oral and documentary evidence, believed the evidence of PW.3 the eye witness and considering Exs.A1 and A2 copy of FIR and copy of charge sheet came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the lorry. On issue No.2, the Tribunal accepted Ex.A8 income certificate issued by the Mandal Revenue Officer, Bhiknoor and has taken the earnings of the deceased at Rs.1,20,000/- per annum and after deducting 1/3 towards personal expenses of the deceased the loss of dependency was fixed at Rs.80,000/- per annum. The Tribunal, applying the multiplier ‘18’, awarded Rs.14,40,000/- towards loss of earnings, Rs.10,000/- towards loss of consortium to the first claimant, Rs.10,000/- towards loss of love and affection and Rs.5,000/- towards funeral expenses. In all, the Tribunal awarded Rs.14,65,000/- with proportionate costs and interest at 9% p.a., from the date of petition till realization. Learned counsel for the appellant-Insurance Company submitted that the Tribunal ought not to have accepted Ex.A8 and that the loss of earnings have to be determined basing on the loss of supervisory charges and not basing on the entire income from the agriculture. It is also submitted that the deceased was having only 5 ½ Acres of land and the Tribunal committed an error in taking the income of the deceased at Rs.10,000/- per month. It is also submitted that as per the recent judgment of the Supreme Court in Smt. Sarla Verma v. Delhi Transport Corporation[1], the appropriate multiplier should be ‘17’ and therefore the Tribunal ought not to have taken ‘18’ multiplier. The main submission of the learned counsel for the appellant is that the amount awarded is excessive, exorbitant and unreasonable. Learned counsel for the respondents-claimants submitted that the evidence of PWs.1 to 3 clinchingly establishes that the deceased was cultivating 5 ½ Acres of land and he was getting annual income of Rs.1,25,000/- from agriculture as the deceased was raising commercial crops. It is also submitted that besides agriculture the deceased was also selling milk and earning Rs.10,000/- per month and this aspect was not taken into consideration by the Tribunal. His main submission is that the amount awarded by the Tribunal is just and reasonable and no interference is required. It is also his submission that since the dependent family members of the deceased are 6, the deduction towards personal and living expenses of the deceased should be one-fourth (1/4th) and not one-third (1/3rd). Though the learned counsel for the appellant is silent on the finding given by the Tribunal on issue No.1 with regard to accident, the evidence adduced by the parties proves that the accident occurred due to rash and negligent driving of the lorry driver only, therefore, no interference is called for with the finding given by the Tribunal on issue No.1. Now the point that arises for consideration is whether the compensation awarded by the Tribunal is just and reasonable or excessive and what is the just and reasonable compensation in the circumstances of the case? It is settled law that the compensation should be just and reasonable. It should be neither excessive nor very low. In case of agriculturists and persons like deceased who are doing milk vending business it will be difficult to decide the actual income of the deceased. Generally, the agriculturists who are having personal lands will do hard work to get more yield. PW.1 is the wife of the deceased. According to her, the deceased was doing agriculture and also milk vending business and earning Rs.8,000/- per month from agriculture and Rs.10,000/- per month from milk vending business. According to her, after the death of the deceased their lands were kept fallow. Ex.A8 the income certificate issued by the MRO has been marked in her evidence. It was suggested to her that even after the death of the deceased, the claimants are cultivating their lands and getting income. PW.2 is the Sarpanch of the village. According to him, the deceased was doing agriculture in Ac.8-00 of land and raising sugarcane, vegetables, paddy and maize and earning about Rs.1,50,000/- per annum. PW.3 is another agriculturist from the village of the deceased. According to him, the deceased was cultivating Ac.8- 00 of land and earning Rs.1,50,000/- per annum. PW.3 was examined as eye witness and he has also spoken about the income of the deceased. PW.3 has denied the suggestion that since he is related to the deceased, he is speaking falsehood. Ex.A8 is the income certificate issued by the Mandal Revenue Officer, Bhiknoor, Nizamabad District, which shows that the deceased is the pattadar of the lands bearing Survey Nos.1390/ (1.08/3/4), 1390/ (1.10), 1390/ (1.17 ½), 1390/ (0.28/3/4), 1390/ (0.20) and 1390/ (0.20), and his annual income was Rs.1,20,000/- per annum. It also shows that the deceased was producing maize, turmeric, paddy, sugarcane etc., and also selling milk. The M.R.O., who issued Ex.A8 is not examined. It is not clear on what basis the M.R.O., issued Ex.A8 certificate. Therefore, Ex.A8 cannot be taken as basis to determine the income of the deceased. However, there is no rebuttal evidence in this case. The appellant-Insurance Company have not examined any agriculturist to show what would be the income from the extent of land possessed by the deceased when commercial crops are raised. Except giving bare suggestions to PWs.1 to 3, there is no evidence on record adduced by the Insurance Company to determine the income of the deceased either from agriculture or from milk business. It is also settled law that the lands would remain with the family even after the death of the agriculturist. Therefore, the actual loss of supervisory charges from agriculture has to be calculated in terms of money and the same should be reasonable. It is common knowledge that the agriculturists having small extents do hard work. Since there are six dependents in the family of the deceased and it is clear that the deceased had a large family to support. Some guess work become inevitable when there is no documentary evidence to prove the income of the deceased. If reasonable estimation is made, the income from agriculture can be taken at Rs.2,500/- per month i.e., Rs.30,000/- per annum. Similarly, there is nothing on record to disbelieve the evidence of PWs.1 to 3 that the deceased was doing milk vending business. In view of the nature of business, we consider it just and reasonable to take the income of the deceased from milk vending business at Rs.4000/- per month i.e., Rs.48,000/- per annum. As far as the estimation of supervisory charges is concerned, there is no need to deduct any amount towards personal expenses of the deceased because they are only supervisory charges and as far as the income from milk business is concerned, since there are six dependents in the family of the deceased, 1/4th has to be deducted towards personal expenses of the deceased. If same is deducted towards personal expenses from Rs.48,000/-, the loss of dependency comes to Rs.36,000/- per annum. Thus, the total loss of dependency comes to Rs.66,000/- per annum (Rs.30,000/- towards supervisory charges and Rs.36,000/- towards loss of milk business). As per Sarla Verma’s Case (1 supra), the appropriate multiplier that should be applied for the age group of 28 is ‘17’. If the same is applied, the loss of earnings comes to Rs.11,22,000/- (Rs.66,000/- x 17). Apart from that, the first claimant is entitled to Rs.10,000/- towards loss of consortium and the claimants also entitled to Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral expenses and transportation of dead body of the deceased. Thus, the total compensation comes to Rs.11,47,000/-, out of which the first claimant is entitled to Rs.5,00,000/-, claimants 2 to 4 are entitled to Rs.1,50,000/-each, claimant No.5 is entitled to Rs.97,000/- and claimant No.6 is entitled to Rs.1,00,000/-. We are not inclined to disturb the interest rate awarded by the Tribunal. Accordingly, the appeal is allowed in part to the extent as indicated above. No costs. ___________________ A. GOPAL REDDY, J. _______________________ B. CHANDRA KUMAR, J. Date: 24.09.2009. Nsr [1] 2009 ACJ 1298 = 2009(3) Supreme 487