IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE NOUSHAD ALI C.M.A. No.103 of 2002 Between: Mohd.Azam and others ..... Appellants AND Shaik Masthan and others .....RESPONDENTS Counsel for the Appellants: Counsel for the Respondents: The Court made the following : JUDGMENT: This appeal is filed by the claimants for enhancement of compensation awarded in O.P.No.59 of 1994 dated 11.08.1999 on the file of the Motor Accidents Claims Tribunal (District Judge) at Khammam. The claimants 1 and 2 are the parents of the deceased, Mohd. Ameer @ Mohd.Abdul Hameed and the claimants 3 and 4 are his younger sister and brother. The Tribunal while awarding compensation in favour of the claimants 1 and 2, dismissed the O.P. in relation to the claimants 3 and 4. Although this appeal has been filed by all the four claimants, the learned counsel Sri K.Rathangapani Reddy appearing for the appellants reported that the appeal may be restricted to the claim of the parents i.e., claimants 1 and 2 only. 2. The claimants filed O.P. claiming a compensation of Rs.2,00,000/- under Section 166 of the Motor Vehicles Act, 1988, due to the death of their son. On 28.10.1993, the deceased, while returning to Yellandu, was waiting at Gaddaboinagudem bus stage. At that point of time a lorry bearing Registration No.AIK 1735, belonging to the 2nd respondent, driven by the 1st respondent stopped at the bus stage. The deceased was trying to board the lorry and the 1st respondent moved the vehicle in a rash and negligent manner, due to which the deceased fell down and the vehicle ran over his legs. The deceased was shifted to Government Hospital, Yellandu and from there to Government Head Quarters Hospital, Khammam and again referred to M.G.M.Hospital, Warangal. He died on 22.11.1993. 3. The respondents 1 and 2 remained ex parte. The 3rd respondent-Insurance Company resisted the claim by denying the rash and negligent driving on the part of the 1st respondent and that the deceased was not supposed to board the vehicle. 4. The Tribunal framed issues as to whether there was rash and negligent driving on the part of the 1st respondent and whether the claimants were entitled for any compensation, if so, to what amount and from which respondent? 5. The 1st claimant was examined himself as PW1 and further examined one Ch.Srinivas as PW2. The claimants also filed documents Exs.A-1 to A-33. The 3rd respondent-Insurance Company did not examine any witness, but filed Ex.B-1-Insurance Policy. 6. Based on the evidence, the Tribunal recorded a finding that both the driver of the lorry and the deceased were responsible for the accident. The Tribunal although felt that the claimants were entitled for a sum of Rs.66,000/-, scaled down the claim to Rs.33,000/- i.e., 50%, due to the contributory negligence. Since as per the provisions of Section 140 of the Motor Vehicles Act, 1988, the minimum amount payable is Rs.50,000/-, the Tribunal ultimately awarded Rs.50,000/- in favour of the claimants 1 and 2. Not satisfied with the quantum, the claimants have filed the present appeal for enhancement. 7. Heard both sides. 8. The points for consideration are whether there was contributory negligence on the part of the deceased and whether the parents are entitled for enhancement of compensation? 9. PW.2 was an eyewitness. He deposed that the deceased was about to board the lorry along with a bag of groundnuts and kerosene tin. He handed over them to the cleaner of the lorry and he was about to board at which time, without observing that the deceased was boarding the vehicle, the driver started the vehicle. In the cross examination, PW.2 denied the suggestion that the deceased fell down due to his negligence. He also denied that the accident took place while the deceased was traveling in the lorry. He further denied that he was not an eyewitness to the accident. 10. From the evidence of PW2, it can be seen that the driver even without verifying, whether the deceased had entered the vehicle or not started the vehicle. Since the vehicle is a lorry, it is not difficult for the driver to observe any person boarding the vehicle, which the 1st respondent failed to do in the present case. If really there was no negligence on the part of the driver, the respondents including the 3rd respondent would have rebutted the version of PW.2 by adducing evidence or by producing the 1st respondent-driver. No such evidence was adduced. In this view of the matter, I am not in agreement with the finding of the Tribunal that the deceased also contributed to the accident. 11. As regards the quantum of compensation, in the claim petition, the claimants claimed that the deceased was earning Rs.900/- per month and the Tribunal rightly accepted the same as correct. However, it is to be seen as to how much is liable to be deducted from the amount of Rs.900/-. The Tribunal arrived at the contribution of the deceased to his parents at Rs.300/- per month on the ground that the claimants have other sons, who are obligated to maintain the parents. 12. In other words, the Tribunal deducted 2/3rd out of Rs.900/- and calculated the compensation at Rs.300/- per month. I am not in a position to agree with this finding. There is no evidence on record to show that the other sons, though obligated to maintain the parents, were actually doing so. In the absence of evidence, no presumption can be drawn on this aspect. It is also not on record, whether the other sons were married or living separately. Since the deceased was a bachelor, it can be assumed that he was living with the parents. On this premise, it can be safely said that the deceased was contributing 50% of his earning i.e., Rs.450/- per month. Taking the same, the dependency can be ascertained at Rs.5,400/- per annum. The Tribunal applied the multiplier ‘10’, which in my view is not correct. Even the Tribunal stated that the age of the second claimant, who is the mother of the deceased was between 45 and 50 years. Taking the age of the mother of the deceased as 45, in my opinion multiplier ‘14’ has to be adopted. Therefore, the claimants are entitled for a total sum of Rs.75,600/- towards loss of dependency. Although, the Tribunal awarded Rs.20,000/- towards non pecuniary damages, I am of the view that the claimants were entitled only for Rs.10,000/- on this head. The claimants are also entitled for Rs.1,400/- towards funeral expenses. In this view of the matter, the claimants are entitled for Rs.87,000/- in total. Since, I did not agree with the finding that there was contributory negligence on the part of the deceased, I hold that the entire liability is to be born by the respondents 1 to 3 jointly and severally. The Tribunal has awarded Rs.50,000/-. Hence, the claimants are entitled for Rs.37,000/- as difference of the claim in this appeal. I accordingly hold that the appellants 1 and 2 are entitled for enhancement of compensation of Rs.37,000/- with interest at the rate of 6% per annum from the date of petition till the date of realization. The award passed in O.P.No.59 of 1994 on the file of the Motor Accidents Claims Tribunal (District Judge) at Khammam is modified accordingly. The appeal is allowed in part in favour of the appellants 1 and 2. The appeal in respect of the appellants 3 and 4 is dismissed. There shall be no order as to costs. _______________ NOUSHAD ALI, J 5th February 2010 Ivd