THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY M.A.C.M.A.No.3629 of 2009 Dated:17th November, 2009. Between: The New India Assurance Co. Ltd. rep. by its Divisional Manager, Br.Pune, Divil Office, Subashnagar, Nizamabad. ….Appellant and 1. Ramoji Chandrakala & Ors. …Respondents **** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY M.A.C.M.A.No.3629 of 2009 JUDGMENT: This Civil Miscellaneous Appeal is directed against the judgment dated 28.09.2005 passed in O.P.No.241 of 2001 on the file of the 1st Additional Motor Accidents Claims Tribunal, Nizamabad, (for short, ‘the Tribunal’) whereby and where under the learned Chairman of the Tribunal allowed the claim petition of the claimants filed under Section 166 of the Motor Vehicles Act, 1988 (for short, ‘the Act’) and awarded compensation of Rs.5.00 Lakhs. 2. a) Respondents 1 to 4 herein are the claimants in O.P.No.241 of 2001. They filed the claim petition under Section 166 of the Act claiming compensation of Rs.5.00 Lakhs for the death of Ausula Limbadri in a road accident occurred on 07.10.2000. The claimant No.1 is the wife and claimants 2 to 4 are the children of Ausula Limbadri. On 07.10.2000 at 11.00 a.m. a lorry bearing No.APJ 3331 came in high speed from Marapally side and dashed Ausula Limbadri, as a result, Ausula Limbadri fell down and came under the front wheel of the lorry and the lorry ran over him, resulting his instantaneous death. He was a goldsmith and agriculturist, according to the claimants, earning Rs.10,000/- p.m. and contributing his entire earnings to the family. Since the accident occurred due to rash and negligent driving of the driver of the lorry, Mohd. Raheemuddin being the owner, and the New India Assurance Co. Ltd., being the insurer, are liable to pay the compensation claimed by them. The owner remained ex parte and he did not choose to contest the claim petition. The insurer filed counter resisting the claim of the claimants. The insurer denied the age, occupation and income of the deceased and also rash and negligent driving of the driver of the lorry. b) The Tribunal framed the following issues for consideration: 1) Whether the accident occurred due to rash and negligent driving of the lorry bearing No.APJ 3331 driven by its driver? 2) Whether the petitioners are entitled to compensation? If so, to what amount and from whom? 3) To what relief? c) On behalf of the claimants, three witnesses were examined as PWs.1 to 3 and six documents were marked as Exs.A1 to A6. On behalf of the insurer, one witness was examined as RW.1 and two documents were marked as Exs.B1 and B2. d) The Tribunal, on considering the material brought on record and on hearing the counsel appearing for the parties, held that the accident occurred due to rash and negligent driving of the driver of the lorry bearing No.APJ 3331 and that the claimants are entitled to compensation of Rs.7,65,260/-, but restricted to Rs.5.00 Lakhs as claimed by them with interest at 9% p.a. with proportionate costs from the date of filing of the petition. Accordingly, the claim petition filed by the claimants came to be allowed, by judgment dated 28.09.2005. The 2nd respondent/insurer in O.P.No.241 of 2001 has filed this CMA under Section 173 of the Act. 3. When this CMA came up for admission, the respondents 1 to 4/claimants entered appearance through a counsel. With the consent of the learned counsel appearing for the parties, the CMA is taken up for final disposal at the admission stage. 4. Heard learned counsel appearing for the appellant and learned counsel appearing for the respondents 1 to 4/claimants. 5. Learned counsel appearing for the appellant/insurer submits that the Tribunal overestimated the loss of dependency to the respondents 1 to 4/claimants and thereby erred in awarding compensation of Rs.5.00 Lakhs. A further submission has been made that the Tribunal committed an error in calculating the income earned by the deceased as a blacksmith/goldsmith and the income derived by cultivating his lands. Learned counsel took me to para.13 of the judgment impugned in the appeal as to how the Tribunal committed error. For better appreciation, I may refer para.13 of the judgment impugned in the appeal, which reads as hereunder: “13. Regarding the annual income of the deceased, it is stated in the petition as if the deceased was a goldsmith and agriculturist and earning Rs.10,000/- per month. Ex.A6 certificate issued by the Sarpanch shows that the deceased was a blacksmith and goldsmith. PW.1 deposed that the deceased was the only blacksmith in the village. In this context, the deceased is treated as a blacksmith only and not goldsmith. Ex.A5 patta pass book shows that the deceased was having Ac.2.00 gts of dry land and Ac.1.05 gts of dry land in Dattapur village and the pass book stands in the name of the deceased. Accordingly, I hold that the deceased was a blacksmith and an agriculturist. The blacksmith is treated as semi skilled labour and minimum wages prescribed is Rs.115/- per day in non-municipal area during the year 2000. Ex.B1 the white ration card shows that the total annual income as Rs.3,000/- But it stands in the name of the wife of the deceased. In this context, the income of the deceased is assessed at Rs.115/- per day and Rs.2,990/- for 26 days i.e., per month. The deceased must have also earned at least Rs.2,000/- per month from agriculture by cultivating of his land of Ac.3.05 gts. Thus, a total income comes to Rs.5,990/- per month and Rs.71,880/- per annum.” 6. The total earnings of the deceased arrived at by the Tribunal appear to be incorrect. The earnings as blacksmith is estimated at Rs.2,990/- and agricultural income at Rs.2,000/- per month. Even if income from both the sources is clubbed, total earnings come to Rs.4,990/- per month and not Rs.5,990/- p.m. as arrived at by the Tribunal. Therefore, there is every force in the contention advanced by the learned counsel appearing for the appellant/insurer. 7. Learned counsel appearing for the respondents 1 to 4/ claimants submits that the Tribunal has taken the income of the deceased very moderately and assessed the entitlement of the claimants at Rs.7,65,260/-, but restricted to Rs.5.00 Lakhs as claimed by them and in which case the judgment impugned in the MACMA does not warrant interference of this Court. 8. The only issue that falls for consideration in this appeal is whether the compensation granted by the Tribunal is just and proper? 9. The claimants are wife and children of the deceased. Indisputably, the deceased owns only Ac.3.05 guntas of land. Even after the death of the deceased the land continues to be in occupation of the claimants. What is the lost to the claimants is managerial services of the deceased. Therefore, the assessment of the Tribunal with regard to loss of income from agriculture at Rs.2,000/- per month is on high side. Keeping the extent of land owned by the deceased, the managerial services of the deceased can be estimated at Rs.3,000/- per annum. The Tribunal has assessed the income of the deceased as blacksmith at Rs.2990/- per month. It can as well be rounded off to Rs.3,000/- per month. The annual income of the deceased as blacksmith comes to Rs.36,000/-. The value of the managerial services of his agricultural land at Rs.3,000/- per annum appears to be quite reasonable. The total annual earnings of the deceased comes to Rs.36,000/- + Rs.3,000/- = Rs.39,000/-. If 1/3rd is deducted for his personal expenses, his contribution to the family is at Rs.26,000/- p.a. The proper multiplier as per Schedule-II of the Schedule appended to the Act, in the given facts and circumstances of the case, can be taken as 16. Thus, the total loss of earnings can be arrived at Rs.26,000/- X 16 =Rs.4,16,000/-. The claimants are also entitled to Rs.2,000/- towards funeral expenses; Rs.5,000/- towards loss of consortium to the Claimant No.1 and loss of estate at Rs.2,000/- all put together Rs.9,500/-. In all the claimants are entitled to compensation of Rs.4,16,000/- + Rs.9,500/-=Rs.4,25,500/-. 10. Accordingly, this MACMA is allowed in part reducing the compensation from Rs.5.00 Lakhs to Rs.4,25,500/- with proportionate costs and with interest at the rate of 7.5% per annum from the date of filing of the O.P. till the date of payment. The compensation amount shall be apportioned among the claimants 1 to 4 as follows: Claimant No.1 = Rs.1,25,500/- Claimant No.2 = Rs.1,00,000/- Claimant No.3 = Rs.1,00,000/- Claimant No.4 = Rs.1,00,000/- The claimants 1 and 2 are permitted to withdraw half of the amount apportioned to them. The rest of the amount of claimants 1 and 2 shall be invested in fixed deposit for three years. The amounts apportioned to the claimants 3 and 4 shall be invested in fixed deposit, initially for a period of three years, renewable till they attain the age of majority. The claimant No.1 being the mother and natural guardian of the claimants 3 and 4, is entitled to withdraw the interest accrued on the minors’ deposit. ______________________ B.SESHASAYANA REDDY, J. Date:17th November, 2009. cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY M.A.C.M.A.No.3629 of 2009 Dated:17th November, 2009.