IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD THURSDAY, THE TWENTY THIRD (23RD) DAY OF JUNE, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.1845 of 2009 Between: The Oriental Insurance Co. Ltd., Hyderabad …Appellant And: T.Radhamma & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.1845 of 2009 JUDGMENT: This appeal is directed against the order dated 18.09.2007 in OP No.602 of 2005 on the file of the MACT cum III Additional District Judge, Tirupati, wherein the said application filed by the respondents 1 to 3 herein for compensation, was allowed awarding compensation of Rs.1,55,000/- with interest at 7.5% per annum from the date of petition. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents 1 to 3. Perused the record. 3. The respondents 1 to 3 herein filed claim application seeking compensation of Rs.4,00,000/- on account of the death of the deceased Munikrishnaiah, that occurred on 12.06.2005. The first claimant is the wife, 2nd claimant is the son and 3rd claimant is the daughter of the deceased Munikrishnaiah. According to the claimants, on 12.06.2005 at about 5.30 a.m. when the deceased was going on a bicycle near Forest Check Post, Srinivasapuram, to go to his fields, a Tayoto Qualis bearing No.AP 28 V 4538 driven in a rash and negligent manner in high speed by its driver, dashed against the bicycle of the deceased, as a result, he sustained injuries and died while undergoing treatment at SVIMS, Tirupati and a case in Cr.No.175 of 2005 was registered by Renigunta PS. According to the claimants, the deceased was aged 55 years and was earning Rs.2000/- per month as a Talari in the Mandal Revenue Office and Rs.20,000/- by cultivation. 4. The 4th respondent herein, the owner of the vehicle remained ex-parte. The appellant-insurer filed counter opposing the claim and denying their liability to pay the compensation. 5. During enquiry, PWs.1 and 2 were examined and Exs.A.1 to A.6 were marked. On behalf of the appellant, RWS.1 and 2 were examined and Ex.B.1 was marked. On a consideration of the evidence on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the quails vehicle by it s driver. The Tribunal awarded a total compensation of Rs.1,55,000/- with interest at 7.5% per annum. Aggrieved by the same, the insurer filed the present appeal. 6. The learned counsel for the appellant-insurer would contend that the FIR was registered in respect of unknown tata sumo vehicle and subsequently, one month later, 4th respondent- owner of the present vehicle, which is toyoto quails, is said to have surrendered the vehicle and the driver, before the police on 12.07.2005 and the identity of the said vehicle involved in the accident is not established. He would further contend that the amounts awarded by the Tribunal under various heads are on higher side and not in accordance with the Act. 7. Learned counsel for the respondents 1 to 3-claimants on the other hand would contend that the identity of the vehicle was not known at the time of registering FIR, on a complaint given by the brother of the deceased, and subsequently, during the course of investigation, police have established that the Toyoto Qualis bearing No.AP 28 V 4538 was the crime vehicle and accordingly, charge sheet was also filed against the driver of the said vehicle under Ex.A.6. He would further contend that the deceased was working as Talari of a village, but however, the claimants could not produce salary certificate during enquiry before the Tribunal and that they filed an application in MA CMA MP No.4884 of 2010 in this appeal under Order 41 Rule 27 CPC for receiving the service record and transfer certificate of the deceased, which shows that the deceased was working as Talari and he was paid honorarium of Rs.1185/- per month. The said documents also show the date of birth of the deceased as 24.06.1963. Learned counsel for the respondents 1 to 3 therefore contends that by the date of the accident in 2005, the deceased was aged only 42 years, whereas the Tribunal has taken his age as 55 years and applied lesser multiplier of ‘11’ to arrive at loss of dependency in a sum of Rs.1,10,000/- taking the annual notional income of the deceased at Rs.15,000/- and deducting 1/3rd thereof towards personal expenses. Of course, the claimants have not preferred any appeal seeking enhancement of the compensation. The above contention is raised and the additional documents are sought to be produced by way of additional evidence to justify the award on the whole. 8. As the documents sought to be produced by way of additional evidence i.e., to be marked are, copy of the service register and transfer certificate of the deceased and they are permitted to be received as additional evidence and accordingly received and marked as Exs.A.7 and A.8 respectively. CMA MP No.4884 of 2010 is ordered accordingly. 9. The FIR was registered on the basis of the complaint given by T.Murali, who is the brother of the deceased. Admittedly, the said Murali was not present at the time of the accident. In the complaint, the said Murali has stated that his brother was dashed by unknown vehicle. Of course in Ex.A.1, he described the vehicle as Tata sumo, but the same is obviously not based on his personal knowledge, as he was not present at the time of the accident. Subsequently, the police after due investigation, established that one Tyoto Qualis bearing No.AP 28 V 4538 was the crime vehicle. Ex.A.4 MV Inspector’s report and Ex.A.6 charge sheet would disclose that Toyoto Qualis bearing No.AP 28 V 4538 was the vehicle involved in the accident. The appellant examined the driver of the said vehicle as RW.1, who testified that the criminal case was filed against him and the owner handed over the vehicle to the police on 12.07.2005 and it was Toyoto Qualis bearing No.AP 28 V 4538. In the cross-examination, he stated that after the accident, out of fear, he left the scene of offence and he intimated the accident to the owner and thereafter, the owner surrendered the vehicle to the police and he was also arrested. The appellant-insurer examined RW.2 owner of the vehicle, who also testified that he surrendered the toyoto qualis vehicle before the police on 12.07.2005. The witness was treated as hostile at the instance of the insurer. In the cross-examination, he denied the suggestion that his vehicle was not involved in the accident. He also denied the suggestion that he surrendered the vehicle before the police on 12.07.2005 to help the claimants. The evidence on record does not disclose that the owner of the vehicle is in any way associated or contacted with the claimants. They do not even belong to the same place. RW.2 owner and his driver RW.1 are residents of Hyderabad, whereas, the claimants are residents of Karakambedu village near Renigunta. There is absolutely no reason as to why the owner of the vehicle should oblige the claimants to the extent of surrendering the vehicle and producing the driver before the police, unless the vehicle is involved in the accident. Simply because there was delay of one month in producing the vehicle and surrendering the driver before the police, no inference can be drawn to the effect that the vehicle is falsely pressed in to service to sustain the claim of the claimants, who were in fact strangers to the owner of the vehicle. The fact that in FIR the vehicle is noted as Tata sumo, whereas the vehicle involved was found to be Toyoto quails, also does not lead to any inference of false implication as sought to be contended by the appellant, especially, when the police have after due investigation, established the identity of the said toyoto quails as the crime vehicle and filed charge sheet against its driver RW.1. The testimony of RWs.1 and 2, who were examined by the appellant- insurer is of no help to the appellants and on the other hand, they support the contention of the claimants. The evidence on record does not establish any collusion between the claimants and the owner as sought to be made out. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the toyoto qualis bearing No.AP 28 V 4538 by its driver-RW.1 does not therefore call for any interference. 10. Regarding the quantum of compensation, the Tribunal has taken the notional income of the deceased at Rs.15000/- per annum as per the II Schedule and applying the multiplier ‘11’, taking the age of the deceased as 55 years, as noted in the post- mortem certificate, awarded a sum of Rs.1,10,000/- towards loss of dependency. The Tribunal further awarded a sum of Rs.15,000/- towards loss of consortium, Rs.10,000/- towards funeral expenses and Rs.20,000/- towards loss of estate, making up a total sum of Rs.1,55,000/-. 11. The service register Ex.A.7 now marked shows that the deceased was working as Talari and was getting honorarium of Rs.1185/- per month. Ex.A.8 transfer certificate shows that the date of birth of the deceased as 24.06.1963 and if the same is taken into consideration, the deceased would have been aged 42 years by the date of the accident, but the age of the first claimant, who is the wife of the deceased is shown as 46 years in the claim application. It is improbable that the deceased would have been 4 years younger than his wife-first claimant going by the usual norms and practice in the villages. Be that as it may, as the claimants have not filed any appeal for enhancement of the compensation, the question of awarding any enhancement in this appeal, applying the higher multiplier or taking the higher income of the deceased does not arise. 12. Though the claimants have claimed that the deceased was doing cultivation, they have not adduced any evidence to show that the deceased was having any agricultural income. Even if the income of the deceased as Talari is taken into consideration as per Ex.A.7 service certificate, he was paid honorarium of Rs.1185/- per month, which comes to Rs.14,220/- per annum, which is less than the notional income of Rs.15,000/- taken by the Tribunal into consideration. Hence, the amount of Rs.1,10,000/- awarded by the Tribunal towards loss of dependency is left undisturbed. 13. The Tribunal awarded a sum of Rs.15,000/- towards loss of consortium, Rs.10,000/- towards funeral expenses and Rs.20,000/- towards loss of estate, which is on higher side. As per the II Schedule of the Motor Vehicles Act, the claimants are entitled for a sum of Rs.5,000/- towards loss of consortium, Rs.2,000/- towards loss of funeral expenses and Rs.2,500/- towards loss of estate. Therefore, the claimants are held entitled for a total compensation of Rs.1,19,500/- (Rs.110000/- + Rs.5000/- + Rs.2000/- and Rs.2,500/-) with interest at 7.5% per annum from the date of petition. The amount awarded by the Tribunal is modified accordingly. 14. In the result, the appeal is allowed to the extent stated above. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 23.06.2011 bss