IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY FIFTH DAY OF AUGUST TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.M.A. No.1211 of 2001 Between: National Insurance Company Ltd. rep. by its Manager, 323 & 375A Chenoy trade Centre, 3rd floor, Parkland .. Appellant AND Kota Lalitha and others .. Respondents JUDGMENT: The appeal is directed against the award, dated 23-10-2000 in O.P. No.725 of 1998 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-District Judge, Adilabad. The factual background for the appeal is that the deceased K. Shankaraiah was going on his scooter No.AP 1A 4624 to Mancherial on 23-07-1998 and when he reached inspection bungalow area at about 2.30 P.M., vehicle No.AP 9U 4302 dashed against his scooter resulting in his instant death. The offending vehicle was driven rashly and negligently and Mancherial police registered Crime No.156 of 1998. Shankaraiah, aged 32 years, was running a kirana shop and wine shop earning Rs.10,000/- per month. The wife, three minor sons and aged parents have become destitutes on the death of Shankaraiah and are, hence, claiming a compensation of Rs.6,00,000/- from the owner and insurer of the vehicle. While the owner remained ex parte before the Tribunal, the insurer contested the claim contending that the owner and insurer of the scooter ought to have been impleaded and the terms and conditions of the insurance policy clearly appear to have been violated and the other claims of the petitioners were also denied and the claim was requested to be dismissed. The Tribunal framed issues on the responsibility for the accident and the entitlement of the claimants for compensation and examined P.Ws.1 and 2 and marked Exs.A.1 to A.8 during the enquiry. It rendered the impugned award firstly accepting the evidence of the eye witness P.W.2 about the rash and negligent driving of the lorry being the cause for the accident, more so, as the claims of P.W.2 were corroborated by Ex.A.1 first information report and Ex.A.2 charge-sheet. The Tribunal accepted Ex.A.7 S.S.C. certificate showing the date of birth of the deceased as 02-04-1963 to assess his age to be 36 years by the time of the accident. The Tribunal noted that P.W.1 claimed the deceased to have studied up to intermediate and referred to Ex.A.6 certificate issued by Excise Superintendent about the deceased running a wine shop in 1998 and 1999. However, the Tribunal did not accept that he was earning Rs.10,000/- per month in the absence of any documentary evidence and assessed the income of the deceased at Rs.3,500/- per month and applied a multiplier of 16 to arrive at the loss of dependency at Rs.5,00,000/-. The Tribunal also thought it fit to award Rs.25,000/- towards loss of consortium to the wife and loss of love and affection to the family and loss of estate, etc. Accordingly, it granted a compensation of Rs.5,25,000/- with interest at 12 per cent per annum and proportionate costs, while giving further directions about the manner in which the compensation has to be apportioned and disbursed. The insurer filed the present appeal contending that the Tribunal erred in not deducting one-third income of the deceased towards his personal expenses and also committed a further error in applying multiplier as per the Second Schedule to the Motor Vehicles Act, while the petition was filed under Section 166. The interest awarded at 12 per cent per annum is high and therefore, the insurer desired that the impugned award be reversed. Sri B. Somasekhar, learned standing counsel for the appellant and Sri A. Veeranjaneyulu, learned counsel representing Sri V. Ravinder Rao, learned counsel for the claimants are heard and the 7th respondent is unrepresented before this Court. The grounds of appeal did not question the finding of the Tribunal fixing the responsibility for the accident on the driver of the offending lorry and the said conclusion has to be considered as having become final. Similarly, the grounds of appeal also did not question the subsistence of the insurance policy issued by the appellant in favour of the 1st respondent to the claim petition in respect of the offending vehicle and in the light of the subsisting insurance, the joint and several liability of the owner and insurer of the vehicle to justly and adequately compensate the dependents of Sri K. Shankaraiah cannot be in dispute. The only question that remains for consideration is the justification for the quantum of compensation awarded by the Tribunal. While the claimants sought for a compensation of Rs.6,00,000/-, the Tribunal had, in fact, restricted it to Rs.5,25,000/-. It may be noted that by the time of the accident and the award, the Second Schedule to the Motor Vehicles Act had already come into force, as per which even non-earning persons are presumed to be earning an annul income of Rs.15,000/-. The claimants have placed positive evidence before the Tribunal about the deceased running a wine shop in 1998 and 1999 as stated in Ex.A.6 certificate issued by Excise Superintendent, Adilabad. The fact that the deceased was a businessman, is evident from the various documents filed by the claim petitioners and Ex.A.7 certificate not only showed that he was born on 02-04-1963 but also corroborated the claim that he studied up to intermediate. The deceased running a wine shop as per Ex.A.6 and also claimed to be running a kirana shop, can be safely presumed to be earning a very decent income from such businesses. The 1st petitioner as P.W.1 reiterated the claims about the deceased doing such businesses and earning Rs.10,000/- per month and though the claims were sought to be contradicted during the cross- examination of P.W.1, there was no positive evidence from the insurer to deny the claims of P.W.1. While the credibility of P.W.1 concerning her claims about her husband’s avocation and income cannot be seriously in doubt, the assessment of the probable income of the deceased at Rs.3,000/- to Rs.4,000/- per month by the Tribunal is clearly highly conservative and taking into account the ordinary and natural course of human events and the broad human probabilities that can be considered to arise from the admitted running of a wine shop by the deceased, the probable income of the deceased would have been cent percent more than what was assessed by the Tribunal. The failure of the Tribunal to specifically deduct one-third towards the personal expenses of the deceased from the amount assessed by it, therefore, cannot be considered to have resulted in grant of any excess, in the light of the estimate of the Tribunal being too conservative. Similarly, in respect of the multiplier adopted by the Tribunal at 16 in terms of the Second Schedule to the Motor Vehicles Act, even if Bhagawan Das v. Mohd. Arif[1] could have been referred at the time of the impugned award, the multiplier would have been between 12.79 and 14.81. Even according to Sarala Verma and others v. Delhi Transport Corporation and another[2], the appropriate multiplier would be 15 and the Apex Court made it clear in Sarala Verma (2 supra) that either the multiplier or the percentage of deduction cannot be an inflexible factor and the precedential guidelines are merely guidelines variable on the facts and circumstances of each case. Therefore, any interference with the multiplier adopted also does not appear called for at this distance of time. On the filing of the appeal, an interim stay was granted subject to deposit of half of the compensation by the appellant and the remaining half of the compensation admittedly remained unpaid since more than 12 years after the accident. The interest awarded by the Tribunal was 12 per cent per annum, which is criticized to be high, but there is no material before this Court to know what was the prevailing rate of interest at the relevant time either in the market or adopted by the banks and keeping in view the decreasing value of the rupee over the years, any interference with the rate of interest also is not called for. Twelve per cent simple interest per annum was not shown to be considered high or usurious by any precedent and consequently the impugned award does not appear susceptible to interference in this appeal. While the claimants did not prefer any appeal or cross-objections against the award, the impugned award has to be confirmed as it is. In the result, the appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 25-08-2010 Svv [1] 1987 (2) ALT 137 [2] 2009 ACJ 1298