THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY And THE HON’BLE SRI JUSTICE P.DURGA PRASAD M.A.C.M.A.No.50 of 2007 22nd December, 2010 Between :- M/s.New India Assurance Company Ltd., Rep. By its Divisional Manager, Holding its office at 1/164, Prakasam Road, Tirupati, Chittoor District. .. Appellant And Smt.K.S.Nirmalakumari and others .. Respondents THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY And THE HON’BLE SRI JUSTICE P.DURGA PRASAD M.A.C.M.A.No.50 of 2007 JUDGMENT:- (Per B.Seshasayana Reddy,J) This appeal is directed against the Award dated 28-2-2006 passed in M.V.O.P.No.236 of 2001 on the file of the Motor Accidents Claim Tribunal-cum-IV Additional District Judge, Tirupati, (hereinafter referred to as ‘the Tribunal’ for the purpose of convenience) whereby and whereunder the learned Chairman of the Tribunal partly allowed the M.V.O.P. filed by the claimants and granted compensation of Rs.11,25,000/-. 2. Respondents No.1 to 3 herein are the claimants in M.V.O.P.No.236 of 2001. They filed the said M.V.O.P. under Section 166 (1)(c) of the Motor Vehicles Act claiming compensation of Rs.15,00,000/- for the death of K.P.Sekhar Babu in road accident occurred on 9-2-2001. Claimant No.1 is the widow, claimant No.2 is the son and claimant No.3 is the father of K.P.Sekhar Babu. He was a businessman earning Rs.85,700/- per annum as remuneration from two firms apart from getting his share of profits to a tune of Rs.40,000/- from Jamuna Silks and Rs.23,000/- from M/s.Jamuna Stores. He was also getting rents of Rs.1,01,426/- from the building owned by him. On 9-2-2001 at about 2.30 p.m., he was crossing Tiruchanur by-pass road on his scooter bearing registration No.AP-03-E-6411 from East to West. A lorry bearing registration No.ATC-3600 came from Tiruchanur side in a rash and negligent manner and dashed his scooter and the lorry ran over the scooter. As a result, he fell on the road and met with instantaneous death. A report came to be presented before the Station House Officer, Tirupati Traffic P.S., with regard to the accident. The Station House Officer registered a case in Crime No.15 of 2001 under Section 304-A and 279 of I.P.C. against the driver of the lorry. K.P.Sekhar Babu was stated to be about 50 years as on the date of the accident. According to the claimants, the appellant is the insurer and the 4th respondent herein is the owner of the lorry and they are liable to pay the compensation. 3. The owner remained ex parte before the Tribunal. 4. The insurer filed counter resisting the claim of the claimants. The counter of the insurer, in brief, is as hereunder:- The claimants are put to strict proof of age, income, avocation and their relationship with the deceased. The compensation claimed by the claimants is excessive and exorbitant. The accident occurred because of non-observance of the traffic rules by the deceased and therefore there was contributory negligence on the part of the deceased for the accident. 5. The Tribunal framed the following Issues for trial:- 1) Whether the deceased K.P.Sekhar Babu died in the accident due to rash and negligent driving of the driver of lorry bearing Regn.No.ATC-3600 belonging to the first respondent insured with second respondent? 2) Whether the petitioners are entitled for compensation as prayed for in the petition? 3) To what relief? 6. On behalf of the claimants, ‘3’ witnesses were examined and ‘7’ documents were marked. On behalf of the insurer, neither ocular nor documentary evidence was marked. 7. The Tribunal, on considering the evidence brought on record and on hearing the Counsel for parties, came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the lorry and that the claimants are entitled for compensation of Rs.11,25,000/- and accordingly, allowed the M.V.O.P. in part by Award dated 28-2-2006. The said Award was assailed in this appeal by the insurer. 8. Heard learned Counsel appearing for the appellant/Insurer and learned Counsel appearing for respondents No.1 to 3/claimants. 9. Learned Counsel appearing for the appellant/Insurer submits that annual earnings of the deceased have been taken contrary to the evidence placed on record and therefore the compensation awarded to respondents No.1 to 3/claimants is required to be reduced considerably. In a way his contention is that the Tribunal has taken the annual income of the deceased as Rs.1,50,000/- without there being any basis and contrary to the Income Tax Returns, which have been exhibited as Exs.A.5 to A.7. 10. Learned Counsel appearing for respondents No.1 to 3/claimants submits that the deceased was a partner in two firms namely Jamuna Silks and M/s.Jamuna Stores and he was getting his due share out of the partnership business and after his death, his legal representatives did not receive any profits from the said partnership business and therefore the Tribunal was justified in taking the annual income of the deceased at Rs.1,50,000/- and contribution to the family at Rs.1,00,000/-. 11. We have given our anxious consideration to the rival contentions of the parties. Since the deceased was an Income Tax Assessee, we need not go into the oral evidence adduced by the claimants with regard to the earnings of the deceased. It is suffice to refer Ex.A.7 – Income Tax Returns for the year 2000-2001. The statement of total income for the assessment year 2000-2001 enclosed to the Income Tax Returns reads as hereunder:- STATEMENT OF TOTAL INCOME FOR THE ASSESSMENT YEAR 200-2001 Income from House Property Rs.1,01,426/- Income from Bussiness/Profession Rs. 68,183/- Income from Capital Gains Rs. 9,250/-income from other sources Rs. 35,089/- Aggregate income under all heads Rs.2,13,948/- (Less) Brought forward losses set off Rs. 8,653/- Gross Total Income Rs.2,05,295/- (Less) Deduction under Chapter VI-A Rs. 31,597/- Net Taxable Income Rs.1,73,698/- Net Taxable Income(rounded off) Rs.1,73,700/- Tax due before rebate Rs. 26,110/- Less: Total rebate allowable (Rs. 8,972/-) Net Tax due Rs. 17,138/- Surcharge thereon Rs. 1,713/- Total Tax Due Rs. 18,851/- Total Tax deducted at source Rs.2464/- Total Advance Tax paid Rs.19600/- Less: Total Reliefs, TDS, Advance Tax paid (Rs. 22,064/- Balance Tax refundable Rs. 3,213/- Net Tax refundable Rs. 3,213/- 12. As seen from the statement of total income of the deceased for the assessment year 2000-2001, he was getting income from the house property at Rs.1,01,426/-. This income does not stand reduced even after his death and members of his family continue to receive the income from the house property. So, the total earnings of the deceased can be assessed at Rs.1,00,000/- per annum. 1/3rd of his income is required to be deducted towards personal and living expenses. Therefore, his contribution to the family can be taken at Rs.66,000/- per annum. The proper multiplier as per the decision in SARLA VERMA V. DELHI TRANSPORT CORPORATION[1] is ‘12’. Thus the total loss of dependency can be arrived at Rs.66,000/- x 12 = 7,92,000/-. The amounts granted under various heads such as Transport to Hospital, Funeral expenses, Damage to clothing, Loss of expectation of life, Consortium to first petitioner, Loss of love and affection to second petitioner, appear to be reasonable and therefore we are not inclined to interfere with the same. 13. Accordingly, the Award passed by the Tribunal is modified reducing the quantum of compensation from Rs.11,25,000/- to Rs.8,17,000/- with interest at 7.5% per annum from the date of petition till the date of realization. The compensation shall be apportioned among the respondents No.1 to 3 as hereunder:- 1st respondent is entitled to Rs.4,00,000/- 2nd respondent is entitled to Rs.3,00,000/- 3rd respondent is entitled to Rs.1,17,000/- 14. M.A.C.M.A. is accordingly partly allowed. No costs. ________________________ B.Seshasayana Reddy, J _____________________ P.Durga Prasad, J 22nd December, 2010 smr [1] AIR 2009 S.C., 3104