THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD M.A.C.M.A. No.2103 of 2011 JUDGMENT: (Per NVR,J) This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the order dated 7.12.2009 in O.P No.1144 of 2006 on the file of the District Judge-Motor Accidents Claims Tribunal, Nizamabad. The claimants are the respondents herein, who filed O.P before the Court below claiming compensation of Rs.20,00,000/- for the death of Gundewar Haridas (herein after referred to as ‘the deceased’) in the motor vehicle accident. The 1st claimant is the wife, claimants 4 to 6 are the children and claimants 2 and 3 are the parents of the deceased. On the night of 24/25.9.2006 at about 12.30 mid night, near Thirumala talkies, Nirmal town on Nagpur to Hyderabad road, while the deceased was driving the blue colts motor cycle bearing No:AP 9/P 6894 along with another person by name Praveen, H.G 327 on the side of the road from Bhail Bazar towards Nirmal Bus stand side, an Eicher Van bearing No:KL-11/V 5247 driven by its driver in a rash and negligent manner with high speed came from opposite direction on the wrong side of the road, dashed against the deceased and another person, as a result of which, the deceased fell down and the front wheel of the vehicle ran over him and on the way to the hospital, the deceased died. It is the case of the claimants that the deceased was the only earning member in the family and the deceased was working as P.C.No:1721 of Nirmal P.S. and also doing agriculture and was earning Rs.11,000/- p.m. towards salary and Rs.1,20,000/- per annum from agriculture. The owner of the Eicher Van-7th respondent herein remained ex parte before the Court below. The appellant – Insurance Company filed the counter denying all the material allegations. During the course of enquiry, on behalf of the claimants, PWs 1 to 3 were examined and Exs.A-1 to A-10 were marked and Ex.B-1 True copy of the Insurance Policy Certificate was marked on behalf of the respondent – Insurance Company. On consideration of the oral and documentary evidence available on record, the lower Court having answered the first and second issues in favour of the claimants, awarded an amount of Rs.15,35,836/- towards the compensation under all the heads. Having aggrieved by the same, the present appeal is filed by the appellant-Insurance company. The learned counsel for the appellant-Insurance company contended that since the deceased was an employee, the Court below has erred in taking into consideration an amount of Rs.12,000/- p.a towards the income on the agricultural operations and that the computation arrived at by the Court below is not just and proper and that there is contributory negligence on the part of the deceased. Therefore, the order of the Court below is liable to be set aside. The learned counsel for the claimants while opposing the contentions raised by the Insurance company contended that the Court below is justified in passing the award impugned and therefore, it needs no interference by this Court. There is no dispute that the deceased died in the accident. The Court below observed that in view of the investigation done by the police coupled with the evidence of P.w.2, who is also one of the victims in the accident that the accident occurred due to the negligence of the driver of the crime vehicle in question and in view of the fact that the 1st respondent remained absent and in the absence of the rebuttal evidence, there is no othergo except to hold that the accident occurred due to the rash and negligent driving of the crime vehicle in question. Having failed to adduce rebuttal evidence before the Court below, now at this stage of the proceedings, the appellant-Insurance company cannot contend that there was contributory negligence on the part of the deceased and therefore, the said contention cannot be sustained. The fact that remains undisputed is that the 1st claimant is the wife, claimants 4 to 6 are the children and claimants 2 and 3 are the parents of the deceased. The deceased was working as a police constable at the time of the accident. Besides taking into consideration the salary of the deceased for computing the contribution to the bereaved family, the Court below has also taken into consideration the loss of agricultural income at Rs.12,000/- p.m. on the ground that the deceased owned lands on the assumption that if the deceased were alive, he would have supervised the lands and earned Rs.12,000/- p.a. At this juncture, the main thrust of the argument of the learned counsel for the appellant-Insurance company is that the contribution to the family is to be computed on the basis of the salary of the deceased in his employment at the time of the accident, but the observation of the Court below in taking into consideration the salary of the deceased from his employment as well as the loss of agricultural income of Rs.12,000/- p.a., amounts to violation of the provisions of the Motor Vehicles Act and therefore, awarding of the compensation under the loss of the agricultural income is liable to be lessened from the compensation awarded by the Court below. In this regard, the fact remains that the deceased was a police constable at the time of his death. In the absence of any employment or avocation only, the Court below can resort to adopt the other modes as enunciated under the provisions of the Act, while computing the loss dependency. But, in the instant case, in view of the employment of the deceased, the awarding of compensation under the head of loss of agricultural income at the rate of Rs.12,000/- p.a. no doubt leads to infer that the said finding is beyond the scope of the provisions of the Act as rightly contended by the learned counsel appearing for the appellant-Insurance. Therefore, we are of the considered view that while computing the contribution to the family basing on the salary and the future prospects, the conclusion arrived at by the Court below is justified. However, it is made clear that computing the annual income of the deceased by taking into consideration the element of loss of agricultural income at the rate of Rs.12,000/- p.a by the Court below is not just proper and therefore, the finding of the Court below on the said aspect alone is liable to be set aside and consequently, the said element has to be discarded while computing the compensation. In so far as the other findings of the Court below as to the computation of the loss of dependency basing on the salary of the deceased needs no interference. Accordingly, the total income of the deceased i.e., his salary works out to Rs.1,32,366/- and after deducting 1/4th towards his personal expenditure, his contribution to the family would be Rs.99,275/- and on application of the multiplier ‘14’ , the loss of dependency comes to Rs.13,89,850/- and the 1st claimant is entitled to Rs.10,000/- towards loss of consortium and the claimants are awarded Rs.5,000/- under the head of loss of estate and Rs.5,000/- under head of funeral expenses of the deceased. Thus, in total, the claimants are entitled to Rs.14,09,850/- and with regard to the awarding of interest and apportionment with regard to the majors and the minor children are concerned, we are of the considered view that the order of the Court below, needs no interference. Subject to the above modification, the present appeal is partly allowed. No costs. __________________ Justice N.V. Ramana DATE: 2.9.2011 ____________________ Justice P. Durga Prasad nn THE HON'BLE SRI JUSTICE N.V. RAMANA & THE HON'BLE SRI JUSTICE P. DURGA PRASAD MACMA No.2103 OF 2011 (Order delivered by the Hon’ble Sri Justice N.V. Ramana) 2.9.2011 Nn