THE HON'BLE SRI JUSTICE G.V. SEETHAPATHY MACMA No. 616 OF 2010 Dated: 06-08-2010 Between: The New India Assurance Company Limited, rep., by its Divisional Manager, holding its office at Prakasam Road, Tirupati ... APPELLANT AND K. Muneeswari and six others ... RESPONDENTS THE HON'BLE SRI JUSTICE G.V. SEETHAPATHY MACMA No. 616 OF 2010 JUDGMENT: This appeal is directed against order dated 19-01-2010 in M.V.O.P No. 94 of 2007 on the file of the Motor Accidents Claims Tribunal – cum – V Additional District and Sessions Judge, Tirupati, wherein the claim of the respondents – claimants was allowed in part awarding compensation of Rs.5,33,000/- with interest at 6% per annum from the date of filing of the petition. With the consent of the learned counsel appearing for both sides, the matter is taken up for final disposal, as the points involved are short and simple. Heard the learned counsel for the appellant – insurer and the learned counsel for the respondents – claimants. Perused the records. Respondent Nos. 1 to 4 herein filed a claim application seeking compensation of Rs.7,00,000/- on account of the death of the deceased K. Subramanyam who died in a motor vehicle accident that occurred on 14-12-2005. The 1st claimant is the wife and claimant Nos.2 to 4 are the children of the deceased. Respondent Nos.6 and 7 are the parents of the deceased and they died during the pendency of the O.P. According to the claimants, on that day the deceased was proceeding on a cycle along the left side of the road near Muthirevula Village of Puthalapattu Mandal on Chittoor – Piler main road and that at about 11.00 AM, a tractor bearing No. AP 03 U 2808 driven in a rash and negligent manner came from behind and dashed against the cycle as a result of which the deceased fell down and sustained severe injuries including injury to the spinal cord and that he was shifted to Ramadevi Multi Super Speciality Hospital, Tirupati wherein he took treatment for six days and subsequently, the deceased was shifted to SVRR Government Hospital, Tirupati on 21-12-2005 and he was again shifted to General Hospital, Chennai on 26-01-2006 and while he was being shifted back to his house as his condition became critical, he died on the way on 30-01-2006. A case in Crime No. 2 of 2006 was registered against the driver of the tractor. Respondent No.5 is the owner of the tractor and the appellant is the insurer. According to the claimants, the deceased was aged 45 years and was doing lime business and was earning Rs.6,000/- per month. The owner of the tractor remained ex parte before the Tribunal. The appellant – insurer filed a counter denying the liability for payment of compensation. On the strength of the pleadings, the Tribunal framed the following issues: “1. Whether the deceased K. Subramanyam died in the motor vehicle accident due to rash and negligent driving of the Tractor being No. AP03U 2808 and Trailor bearing No. AP03 U 2809 by its driver on 14-12-2005? 2. Whether the petitioners are entitled for compensation? If so, to what amount and from whim. 3. To what relief?” During the enquiry, PWs 1 and 2 were examined and Exs.A-1 to A-15 were marked on behalf of the claimants. RW 1, the officer of the appellant was examined and no documents were marked on their behalf. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the tractor by its driver. The Tribunal further held that the claimants are entitled for a total compensation of Rs.5,33,000/- and accordingly, an award was passed for the said amount with interest at 6% per annum. Aggrieved by the same, the insurer filed the present appeal. The learned counsel for the appellant would contend that the Tribunal erred in holding that the driver of the tractor was negligent even though there is no evidence in proof of the same and the FIR itself was lodged with a delay of 20 days. He would further contend that the income of the deceased taken by the Tribunal into consideration at Rs.4,000/- per month from the lime business is without any basis as no evidence was adduced by the claimants in proof of the same. The learned counsel for the claimants, on the other hand, would contend that the police after due investigation filed the charge sheet against the driver of the tractor and the finding of the Tribunal fastening the liability on the driver of the tractor for the accident is based on evidence and hence does not call for interference. He would further submit that the income of the deceased taken by the Tribunal at Rs.4,000/- per month is just and reasonable. The accident occurred on 14-12-2005. Admittedly, neither PW 1 nor PW 2 was a witness to the accident. RW 1 who is the official of the insurance company cannot have any personal knowledge of the occurrence. Though the FIR was registered with delay of about 20 days, the fact remains that after due investigation the police filed charge sheet Ex.A-2 which was taken cognizance in C.C No. 31 of 2006 by the learned IV Additional Judicial First Class Magistrate, Tirupati against the driver of the tractor. As rightly contended by the learned counsel for the appellant, the hospital authorities of Ramadevi Hospital where the deceased was admitted at the first instance for treatment ought to have given information to the police about the accident which would have lead to prompt registration of the FIR but the failure of the authorities of Ramadevi Hospital in sending intimation to the police cannot be weighed against the claimants who are third party victims to the accident. Once the intimation was sent to the police by SVRR Government Hospital where the deceased was shifted, the FIR Ex.A-1 was registered and after due investigation, charge sheet Ex.A-2 was filed against the driver. During the course of investigation, the police have identified the crime vehicle as the tractor bearing No. AP 03 U 2808. When that is so and the driver of the tractor was duly prosecuted for the offences alleged against him, the contention of the learned counsel for the appellant that the said vehicle is not involved in the accident and it was subsequently roped in for the purpose of claiming compensation is untenable. The finding of the Tribunal that the accident occurred due to rash and negligent driving of the driver does not call for interference as the same is based on proper appreciation of evidence available on record. Regarding the quantum of compensation, the evidence on record shows that the deceased was aged 45 years at the time of the accident. According to the claimants, the deceased was doing lime business and was earning Rs.6,000/- per month. They did not however adduce any documentary evidence in proof of the income of the deceased from the evidence. The oral evidence of PW 1 is to the effect that the deceased was earning Rs.200/- per day and PW 2 went a step further and stated that the deceased was earning Rs.300/- per day. In the absence of any documentary evidence in proof of the claimant’s income, the oral testimony of PWs 1 and 2 does not merit consideration. The Tribunal however estimated the income of the deceased at Rs.4,000/- per month without any basis. Having regard to the fact that the deceased was aged 45 years and that he was doing some business, the average income of the deceased whether from business or hard labour or any other avocation can be reasonably estimated to be at Rs.100/- per day, which comes to Rs.3,000/- per month which comes to Rs.36,000/- per annum. As the deceased left behind wife and three children besides parents, the Tribunal has rightly deducted 25% towards personal expenses. The contribution of the deceased to the family therefore comes to Rs.27,000/-. As per the recent decision of the Apex Court in Sarla Verma vs. Delhi Transport Corporation[1], the suitable multiplier that will be applicable to the age of the deceased is 14 but not 13 which was applied by the Tribunal. Applying the multiplier 14, the loss of dependency on account of the death of the deceased works out to Rs.3,78,000/-. The 1st claimant – wife is entitled to a sum of Rs.10,000/- towards loss of consortium and the claimants are entitled for the amounts of Rs.2,500/- towards funeral expenses, Rs.2,500/- towards loss of estate and Rs.5,000/- towards transport charges and Rs.15,000/- towards medical expenses as covered by the medical bills which are all awarded by the Tribunal. The claimants are however not entitled for the amount of Rs.30,000/- towards loss of love and affection which is found to be surplus. In the circumstances, the claimants are entitled for a total compensation of Rs.4,13,000/-. The claimants are entitled for interest at 6% per annum as awarded by the Tribunal. The impugned award is modified accordingly. In the result, the appeal is allowed in part to the extent stated above. The appellant shall deposit the balance amount into the Court within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the claimants are entitled to withdraw the same without furnishing any security. G.V. SEETHAPATHY, J 06-08-2010 ks Note: Furnish CC in one week. B/O ks [1] 2009 (6) SCALE 129