THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.No. 967 of 2000: Date:27.11.2009: Between: Atiya Sulthana and another …Appellants And A.P.Products (Anand Masala Company) Rep. By Prakash Sobri, Hyderabad …Respondents THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.No. 967 of 2000: JUDGMENT: This appeal arises out of the order dated 27.11.1999 passed by the II Additional Chief Judge, City Civil Court, Hyderabad in O.P.No.918 of 1996 dismissing the same on the ground that the claimants who are the appellants herein failed to establish the occurrence of accident in which the deceased Mohd.Jamaluddin was said to have received injuries and subsequently died on account of the said injuries. 2. The first appellant is the wife of the deceased and the second appellant is their daughter. They filed claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.2 lakhs on account of death of Modh.Jamaluddin in a motor vehicle accident occurred on 30.05.1996 at about 7 a.m. In the claim petition it is stated that while the deceased who was aged 69 years on the date of his death was proceeding on the road by walk was knocked down by an auto bearing No. AP-12-A-4988, which was driven in a rash and negligent manner. According to them, in the said accident the deceased who sustained severe head injuries and some other injuries on the body, was admitted in Osmania General Hospital and ultimately succumbed to the injuries while undergoing treatment. 3. In the Tribunal below, the first respondent who is the owner of the vehicle remained ex parte and the second respondent-insurance company filed its written statement. 4. In the course of the trial before the learned Tribunal, the second appellant was examined as PW-1 and one Mr.Mohd.Abdul Basith who is said to be an eyewitness was examined as PW-2. They also relied upon Exs.A-1 to A-8. Whereas, the second respondent insurance company only marked Ex.B-1 copy of policy of insurance, but did not adduce any other evidence in support of it’s contention. 5. The deceased Mohd.Jamaluddin was said to be a retired Deputy Tahsildar getting pension of Rs.1500/- per month. He was aged 69 years as on the date of his death. However, the learned Tribunal did not grant any compensation having been found that the appellants failed to establish the accident itself. 6. Now the point for determination in this appeal is whether the Tribunal is justified in holding that the appellants (claimants) failed to establish the accident and if it is found that the claimants are able to establish that the accident was on account of the rash and negligent driving of the auto bearing No. AP-12-A-4988, what is the amount of compensation, for which they are entitled? 7. I have heard the learned counsel appearing for the appellants as well as the second respondent. 8. In the first instance, let us examine whether the Tribunal is correct in holding that the claimants have failed to prove the accident. The Tribunal mainly answered this point against the appellants on the ground that there is discrepancy in the evidence of PWs.1 and 2 and also that the number of the auto is not mentioned in the F.I.R. Admittedly, PW-1 is not an eyewitness to the accident. The appellants stated in the claim petition that the accident occurred while the deceased was proceeding on the road by walk, whereas PW-2 stated in his evidence that black coloured auto dashed against Luna rider which was coming from the direction of Shalibanda. Before appreciating the evidence on record in a proper perspective, it is essential to notice the conduct of the parties and also the pleadings. There is no dispute about the fact that the deceased Mohd. Jamaluddin died while an auto knocked him down. PW-2 might have mistakenly stated that the deceased was proceeding on a Luna at the time of the accident. However, there is no discrepancy in regard to the fact that the accident was caused by the use of an auto. Though the number of the auto is not mentioned in the F.I.R., the contents of Ex.A-2 certified copy of the charge sheet would clearly indicate that after thorough investigation the police filed charge sheet against the driver of the auto bearing No.AP-12A-4988. Ex.A-6 certified copy of Motor Vehicle’s Inspector report also shows that the auto bearing No. AP-12A-4988 was involved in the accident. 9. Further, the first respondent who is the owner of the said auto remained ex parte. The second respondent insurance company, which contended that the first respondent is not the owner of the offending vehicle, did not take any steps to examine the first respondent or the driver of the auto bearing No. AP-12A-4988. Except denying all the material averments in the petition, the second respondent did not adduce any evidence in support of it’s contention. Under these circumstances, basing on the evidence which is referred hereinabove, the learned Tribunal ought to have held that the accident was caused due to the rash and negligent driving of the auto bearing No. AP-12A-4988 and ought not to have resorted to dismiss the claim petition filed by the appellants in toto. Therefore, in this appeal the said finding is reversed and it is held that the accident occurred due to the rash and negligent driving of the auto bearing No. AP-12A-4988. The first respondent being the owner of the said auto and the same being validly insured with the second respondent- insurance company, on the date of the accident, as disclosed from Ex.B-1 copy of the policy of insurance, it is held that the respondents 1 and 2 are jointly and severally liable to pay compensation to the appellants. 10. The next aspect to be dealt with is the quantum of compensation. The deceased was getting pension of Rs.1500/- per month. His annual income, therefore, would be Rs.18,000/- per month. If 1/3rd is deducted towards his personal and living expenditure, the contribution to his family comes to Rs.12,000/- per annum. Since the deceased was aged 69 years as on the date of his death, the relevant multiplier is 5 as per the decision in Sarala Verma and others Vs. Delhi Transport Corporation and another. The loss of dependency, therefore, comes to Rs.12,000/- x 5 = Rs.60,000/-. This apart, the appellants are entitled for Rs.5,000/- towards loss of estate and another sum of Rs.5,000/- towards funeral expenses. Besides that, the first appellant being widow is entitled to a sum of Rs.10,000/- towards loss of consortium. In all, the appellants are entitled for compensation of Rs.80,000/-. 11. The O.P.No.918 of 1996 is, therefore, allowed awarding compensation of Rs.80,000/- to the appellants. The amount shall bear interest at 7.5% per annum from the date of petition till the date of realization. The amount of compensation shall be taken by both the appellants (claimants) equally. Since the O.P. is of the year 1996, the appellants are entitled to withdraw the entire amount granted towards their respective shares together with interest. 12. Accordingly, the appeal is partly allowed with costs. ____________ R. KANTHA RAO, J Date:27.11.2009. CCM THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.No. 967 of 2000: Date:27.11.2009: