IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY FIFTH DAY OF AUGUST TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.M.A. No.448 of 2001 Between: Smt. Pochamma and others .. Appellants AND K. Suryanarayana and others .. Respondents JUDGMENT: This appeal is directed against the award in O.P. No.22 of 1994 on the file of the Motor Accidents Claims Tribunal-cum- Additional Chief Judge-cum-Principal Special Judge for SPE and ACB Cases, Hyderabad, dated 01-03-1995. The deceased M. Koteshwar, aged about 18 years and claimed to be earning Rs.3,000/- per month from rolled gold business, was involved in a motor accident on 16-07-1991 at 9.30 P.M. when the bus AHH 2719 dashed against his cycle. The bus was being driven rashly and negligently and hence, the mother and three brothers sought for a compensation of Rs.3,00,000/- from the owner, insurer and hirer of the vehicle. While the claim petition was dismissed against the owner of the vehicle by the Tribunal due to non-prosecution, the hirer APSRTC contested the claim contending that the liability to pay the compensation is only with the insurer and the owner but not with the hirer. The insurer contested the claim denying any rashness and negligence in driving of the bus and alleging contributory negligence on the part of the deceased. The compensation claimed was stated to be excessive and the driver was claimed to be having no valid driving licence. The Tribunal framed issues on the responsibility for the accident, the dependence of the claim petitioners on the deceased and the liability of the respondents for compensation. The Tribunal examined P.Ws.1 and 2 and marked Exs.A.1 to A.4 and B.1 and B.2 during the enquiry. The Tribunal rendered the impugned award referring to Ex.A.1 first information report and Ex.A.2 inquest report concerning the responsibility for the accident and Ex.A.3/Ex.B1 copy of insurance policy issued by the 3rd respondent. The Tribunal also relied on the eye witness account of P.W.2 and in the absence of examination of the driver of the vehicle, the Tribunal accepted the claims of P.W.2 about the rash and negligent driving of the bus leading to the accident. The evidence of P.W.1 on oath about the claim petitioners being the legal representatives, was also accepted in the absence of any contrary evidence and Ex.B.2 agreement between the owner and the hirer was referred to for absolving the hirer from any liability for payment of compensation. The Tribunal did not accept the claims of the claimants about the deceased doing business and earning Rs.3,000/- per month due to the absence of any documentary evidence and hence, considered the average monthly contribution to the family to be Rs.600/- and arrived at the loss of dependency on that count, applying a multiplier of 7 referable to the age of the mother. Apart from that sum of Rs.50,400/-, the damage to cycle and funeral expenses were also sought to be compensated with a total compensation of Rs.55,000/- payable with interest at 12 per cent per annum and proportionate costs. The award was made against the 3rd respondent insurer only. The claimants preferred the present appeal contending that the compensation awarded was meagre and the pitiable state of the family consisting of old mother and three minor brothers, who lost their father, and the sole bread earner of the family, was not properly considered and even a hawker in Hyderabad will earn not less than Rs.200/- per day. The monthly income ought to have been taken as Rs.3,000/- per month and the entire compensation should have been awarded as claimed. Heard Sri Venkata Raghuramulu, learned counsel for the appellants and Sri R. Venkatrao, learned counsel for the insurer and Sri S. Bhupal Reddy, learned counsel representing Sri K. Madhava Reddy, learned counsel for the 2nd respondent, while the appeal was dismissed for default against the 1st respondent. The dismissal against the 1st respondent will not make any difference, as even the appellants did not claim with any seriousness that they are entitled to an award against him also. The grounds of appeal did not seek for setting aside the dismissal of the claim petition against the owner for non-prosecution by the Tribunal. Though a feeble plea was made about the liability of the hirer/2nd respondent, the truth and contents of Ex.B.2 agreement were not disputed, due to which the conclusion of the Tribunal about non- liability of the hirer cannot be interfered with. The only question that remains is the quantum of compensation to which the insurer had to be made liable. The evidence of the 1st petitioner as P.W.1 was specific about the deceased aged about 18 years earning Rs.3,000/- per month from his business as a footpath hawker and though she admitted not filing any documents in support of the same and was unable to give the details, it cannot be factually in dispute from the circumstances evident from the material on record that the deceased was the sole bread earner of the family consisting of himself, his mother and three minor brothers. For earning livelihood for the family, the deceased must have engaged himself in some occupation even if not the one claimed by the claimants. P.W.2 claimed to be working under the deceased and corroborated the claims of P.W.1. The fact that he was also travelling by the same cycle at the time of the accident may itself probablise the truth of his claims and of course, the claims of P.Ws.1 and 2 about the quantum of the income being derived from the business of the deceased might have been naturally exaggerations in order to claim higher compensation, but the same cannot be a justification for assessing the probable income of the deceased at an unrealistically meagre level. Even a labourer has to be presumed to be getting the minimum wages prevailing at the relevant time under the Minimum Wages Act and the Second Schedule to the Motor Vehicles Act, which had come into force by the time the Tribunal rendered the impugned award, states that even persons, who had no income prior to the accident, had to be construed as getting a notional income of Rs.15,000/- per annum. Therefore, the assessment of the Tribunal that the deceased was contributing only about Rs.20/- per day to the family is unjust and unreasonable and the unmarried deceased aged about 18 years can be considered to be contributing even the entire income to the family. The Apex Court has made it clear that any deduction towards the personal expenses depends on the facts and circumstances of each case, the percentages of one-third or one- fourth adopted in different cases being only guidelines. Taking into account the minimum wages for labourers at the relevant time and the notional income adopted by the Second Schedule to the Motor Vehicles Act and keeping in view the deduction that has to be made at one-third or one-fourth of the income towards the personal expenses of the deceased, which he would have incurred had he been alive, the figure of Rs.15,000/- per annum adopted by the Second Schedule can be considered as the income and one-third of the same may be deducted and the annual loss of contribution to the family from the deceased can be taken as Rs.10,000/-. The mother was claimed to be aged about 41 years by the time of the accident and 45 years by the time of the evidence and the appropriate multiplier applicable to a person of such age is 15 as per the Second Schedule and 14 as per Sarala Verma and others v. Delhi Transport Corporation and another[1]. Keeping in view the facts and circumstances, the multiplier of 15 can be adopted and the loss of dependency for the family, therefore, comes to Rs.1,50,000/-. As per the Second Schedule, general damages of Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate also can be granted and the Tribunal in the impugned award granted about Rs.4,600/- towards damage to the cycle and funeral expenses. Granting a total compensation of Rs.1,55,000/- will alone answer the requirement of awarding just and adequate compensation to the dependents of the deceased and the impugned award has to be modified accordingly. The enhanced compensation can carry interest at 6 per cent per annum keeping in view the distance of time for which the insurer has to pay such interest. Proportionate costs, of course, shall follow the event. In the result, the award, dated 01-03-1995 in O.P. No.22 of 1994 on the file of the Motor Accidents Claims Tribunal-cum- Additional Chief Judge-cum-Principal Special Judge for SPE and ACB Cases, Hyderabad is modified by awarding a further compensation of Rs.1,00,000/- (Rupees one lakh only) with interest at 6 per cent per annum from the date of the petition till the date of realization and proportionate costs against the 3rd respondent therein in addition to the compensation already awarded by the impugned award and no directions need be given at this distance of time about the disbursement of the compensation. The enhanced compensation also should be shared between claimants 1 to 4 in the same proportion as the original compensation. The appeal is allowed accordingly in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 25-08-2010 Svv [1] 2009 ACJ 1298