IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE SIXTEENTH DAY OF AUGUST TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.3135 of 2004 Between: The New India Assurance Company Limited, Represented by its Divisional Manager, Secunderabad .. Appellant AND Erukoti Paran Jyothi and others .. Respondents JUDGMENT: Heard Dr. Muddu Vijay, learned counsel for the appellant and Sri A. Saidhulu, learned counsel representing Sri P. Giri Krishna, learned counsel for the respondents-1 and 2-claimants. The appeal is directed against the award dated 03-03-2004 in O.P.No.196 of 2000 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-I Additional Chief Judge, City Civil Court, Secunderabad. The factual background for the appeal is that E. Venkata Ramana was going by walk to his house along with others on 19- 04-2000 at about 7.00P.M., when the motor cycle AP-28-M 880, driven rashly and negligently in high speed, dashed against him at the outskirts of Pothareddypet village. Though he was shifted to Siddipet Hospital and then to CDR Hospital, Hyderabad, he died on 23-04-2000 while undergoing treatment. The 27 year old Venkata Ramana was doing several businesses such as Raghavendra Kirana & General Stores, Venkataramana Hotel, paddy business and was village bazaar contractor. He was earning Rs.10,000/- per month and the wife, minor son and mother of the deceased made the claim for Rs.6,00,000/- against the owner and insurer of the motorcycle. The claimants claimed to have spent Rs.40,000/- towards medical expenses. While the owner of the vehicle remained ex parte before the Tribunal, the insurer questioned the claim denying all the allegations of the claimants and claiming the driver of the motorcycle to be not having any valid driving licence. The insurer desired the excessive claim to be negatived. The insurer obtained permission under Section 170 of the Motor Vehicles Act in I.A.No.1209 of 2002. The Tribunal framed issues about the responsibility for the accident and the entitlement of the claimants to compensation. It examined PWs.1 and 2 and marked Exs.A.1 to A.21 and Ex.B.1 during enquiry. The Tribunal rendered the impugned award firstly accepting the eye-witness account of PW.2 corroborated by the contents of Ex.A.1-copy of the First Information Report, Ex.A.2-copy of the Charge Sheet and Ex.A.3-Panchnama. The Tribunal, hence, concluded that the accident was probablised to be due to the rash and negligent driving of the driver of the motor cycle. The Tribunal also concluded from Ex.B.1-insurance policy that there was valid and subsisting insurance for the vehicle. In assessing the compensation, the Tribunal took the age of the deceased as 27 years as specified in Ex.A.4-Post Mortem report in the absence of any other evidence and in assessing the probable monthly income of the deceased, it relied on Exs.A.12 to A.21 concerning the Weights and Measures charges paid by the deceased for his Kirana shop business and as commission agent and the licence fee for Kirana shop, bazaar collection from vendors and certificates by the Sarpanch of the Gram Panchayat about the deceased doing various businesses. Though there was no positive evidence about the quantum of income to estimate it at Rs.10,000/- per month as claimed by the claimants, the Tribunal estimated the probable income to be Rs.5,000/- per month, applied a multiplier of 17 after deducting 1/3rd towards personal expenses of the deceased and arrived at the future loss of dependency to be Rs.6,80,000/-. The Tribunal also considered the wife to be entitled to loss of consortium and son and mother to be entitled to loss of love and affection and the claimants together to be entitled to funeral charges, transport charges, medical expenses and loss of estate etc. It also referred to the evidence indicating expenditure of Rs.50,000/- towards medical expenses. However, as the claim itself is for Rs.6,00,000/-, the Tribunal confined the grant of compensation to Rs.6,00,000/- with interest at 9% p.a. from the date of petition till the date of realization and costs. The insurer challenged the said award in this appeal contending that there was no proof of income to enable the Tribunal to assess the income at Rs.5,000/- per month, which is higher. The insurer also contended that the driver of the vehicle had no driving licence and the excessive and high compensation awarded has to be accordingly reduced. The point for consideration is whether the motor cycle driver had no driving lience and if not, whether the compensation awarded is not just and adequate? The evidence produced on behalf of the claimants included a copy of the charge sheet-Ex.A.2 filed by the police and a copy of the Motor Vehicle Inspector’s report-Ex.A.5. Apart from First Information Report-Ex.A.1, Panchnama-Ex.A.3 and Post Mortem report-Ex.A.4 also not reflecting this aspect, if the driver of the motor cycle had no driving licence, the same would have found some reference either in the charge sheet or in the Motor Vehicle Inspector’s report. But no such relevant reference is brought to the notice of the Tribunal or this Court by the insurer. While there is positive evidence for the claimants by PWs.1 and 2 corroborated by Exs.A.1 to A.21, the 2nd respondent-insurer did not produce any evidence at all before the Tribunal nor was there any attempt to produce any additional evidence before this Court to show that this driver had no driving licence. The claimants, therefore, cannot fail on this count and there is no ground due to which they should be disentitled to just and adequate compensation for the death of Venkata Ramana. As the relationship of the claimants with the deceased and their dependency on the deceased cannot be in dispute, Exs.A.12, A.13 and A.17 showed the payment of Weights and Measures charges by the deceased for his Kirana business, while Exs.A.14 to A.16 show the payment of Weights and Measures charges by the deceased as a commission agent. While Ex.A.18 is the receipt for payment of licence fee for Kirana shop, Ex.A.19 are the details of bazaar market collection issued by Gram Panchayat probablising the deceased to be a village bazaar contractor. The Sarpanch certified under Exs.A.20 and A.21 that the deceased was doing various businesses as claimed by the claimants. If the deceased had income from such business activities at the very productive age of 27 years, his earning about Rs.5,000/- per month as assessed by the Tribunal in its wisdom and experience cannot be considered to be divorced from the ground realities. Though there is no positive evidence about the quantum of income, the Tribunal is left with no other alternative except to arrive at a reasonable estimation in its judicial discretion and in the absence of any material to deviate from the assessment made by the Tribunal, the same cannot be interfered with on any ground of any excessiveness. The multiplication adopted is as per accepted conventions and after 1/3rd deduction towards personal expenses of the deceased had he been alive as per the norms, the compensation so arrived at went much beyond the compensation of Rs.6,00,000/- claimed by the claimants and therefore, even though the claimants are entitled to other damages from the various heads as described by the Tribunal, the compensation was confined to Rs.6,00,000/-. The rate of interest was also not shown to have deviated from the then prevailing rate of interest and under the circumstances, the insurer cannot succeed. As the insurer is failing, the non-service of the notice of this appeal on the 4th respondent herein will make no difference to the rights and interests of the parties and the 4th respondent himself has not filed any cross-appeal or cross-objections before this Court. Under the circumstances, the appeal should fail and it is accordingly dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 16-08-2011 Ksn