IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A.No.981 of 2007 DATE:15.11.2010 Between: The General Manager (Redesignated as Managing Director) A.P.S.R.T.C, Mushirabad, Hyderabad and another …… Petitioners And Smt.Vaidya Asha and others …..Respondents CROSS OBJECTIONS IN M.A.C.M.A.No.981 of 2007 Vaidya Asha and others … Cross objectors And The General Manager (Redesignated as Managing Director) A.P.S.R.T.C, Mushirabad, Hyderabad and another … Respondents 1 & 2 HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A.No.981 of 2007 ORDER: The appeal is filed by the Corporation and cross-objections are filed by the claimants. It is a death case. There is no dispute about factum of accident in which the deceased V.Nanda Kishore @ Kishore died. It is a case where R.T.C bus bearing No.AP 10 Z 3677 dashed against Maruthi Car in which the deceased was travelling. The lower Tribunal at Nizamabad came to the conclusion that driver of R.T.C bus was responsible for the accident because of his rash and negligent driving. The said conclusion was arrived at by the lower Tribunal having regard to evidence of P.Ws 1 and 2 and Exs.A- 1 to A-4 criminal case records. It is contended by the appellants’ counsel that there is contributory negligence on the part of car driver in which car the deceased was travelling, because the car was overloaded with 7 passengers including driver as against seating capacity of 5 persons in Maruti Zen car. Simply because there is overloading in the car, it cannot ipso facto constitute contributory negligence on the part of opposite car driver. There is no evidence let in by the Corporation in the lower Tribunal to prove that there was any contributory negligence on the part of the car driver. Further, there is no evidence to show that overloading of the car made any inconvenience or discomfort for driver of the car which resulted in he driving the car in negligent or rash manner. In the absence of such evidence before the Tribunal, the lower Tribunal rightly found that driver of the bus was at fault. 2) The deceased was aged 36 years. The lower Tribunal arrived at income of the deceased as Rs.62,000/- per year having regard to his income tax return for the year 2000-01. The lower Tribunal did not place reliance on income declared for the year 2002- 03 because the said return was filed by the claimants after death of the deceased. As per income tax return which was filed subsequent to death of the deceased, his income was shown as Rs.1,03,220/- for that year. Since income tax return filed for the year 2002-03 cropped up subsequent to arising of cause of action for the claim and long subsequent to filing of the claim petition before the lower Tribunal, the lower Tribunal rightly refused to take income returned for the year 2002-03 as basis for determining income of the deceased for the purpose of determining compensation. 3) The appellant’s counsel placing reliance on Sarla Verma V. Delhi Transport Corporation[1] contended that for the age of 36 years of the deceased, the multiplier should have been 16 and not 17 and that the lower Tribunal erred in adopting 17 as the multiplier in determining the compensation amount. On the other hand, the respondents’ counsel who filed cross-objections on behalf of the respondents/claimants contended that even as per Sarla Verma(1 supra), dependency of the claimants on the deceased should have been taken as 4/5 of his income by deducting 1/5th income of the deceased towards his personal expenditure since there are 7 claimants who are wife, 4 children and 2 parents of the deceased. It is also contended by the cross-objectors’ counsel that loss of estate was not specifically awarded and that loss of consortium awarded at Rs.5,000/- is too low. The cross-objectors did not urge in their cross-objections about taking the multiplicand as 2/3 of income of the deceased. Basing on the subsequent judgment in Sarla Verma(1 supra) rendered by the Supreme Court in the year 2009, cross-objectors’ counsel urges that point without any basis in his cross-objections. In my opinion, when the claimants have not proved any loss of estate due to death of the deceased, the petitioners are not entitled for the same in the absence of any specific claim made in the petition. Amount of compensation granted towards loss of consortium is also not in any way ridiculous. If on application of Sarla Verma(1 supra), the multiplier is liable to be changed. Then naturally the multiplicand is also liable to be changed. In those circumstances, I do not propose to change both the aspects. This Court is of the opinion that amount of compensation awarded by the lower Tribunal is just, appropriate and legal having regard to facts and circumstances of the case and the case law during that time. 4) Hence, the appeal as well as cross-objections are dismissed. No costs. _______________________________ SAMUDRALA GOVINDARAJULU, J November 15, 2010 ksh [1] (2009)6 Supreme Court Cases 121