THE HON’BLE SRI JUSTICE NOUSHAD ALI C.M.A.No. 379 of 2002 02-2010 Between: Nallamotu Rajesh and others. ……….Appellant And Ch.Bhaskhararao and others. ……….Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI C.M.A.No. 379 of 2002 JUDGMENT: This appeal is filed by the claimants for enhancement of compensation awarded in M.V.O.P.No.745 of 1999, dated 22-10-2001, on the file of the Motor Vehicles Accidents Claims Tribunal (for brevity ‘the Tribunal’), Vijayawada. 2. The appellants filed petition under Section166 of Motor Vehicles Act, 1988 claiming compensation of Rs.5,00,000/- on account of the death of one Nallamothu Kanakadurgadevi. The 1st appellant is her husband and appellants 2 and 3 are her children. In this appeal, the appellants are refereed to as claimants. 3. On 18-05-1999, while the deceased Kanakadurgadevi along with her children, mother-in-law, and another were travelling in a car bearing Regn. No.AP 7H 404, belonging to the 3rd respondent herein, from Guntur to Kankatapalem, a lorry bearing Regn. No.ADF 6966 came in the opposite direction driven in a rash and negligent manner, and dashed the car, as a result of which, all the inmates of the car sustained injuries. Kanakadurgadevi succumbed to the injuries. She was aged about 30 years and by profession she was an advocate. The claimants sought for compensation of Rs.5,00,000/- against the respondents. 4. The 1st respondent is the owner of lorry and the 3rd respondent is the owner of car. They remained ex parte. 5. The Insurance Company is common to both the vehicles. It resisted the claim by putting the claimants to strict proof of their claim and the validity of insurance in support of their claim. 6. The Tribunal formulated the following issues: 1) Whether Nalimothu Kanakadurga Devi died in a motor vehicle accident on 18-05-1999 due to the rash and negligence driving of both vehicles lorry ADF 6966 AND Car AP 7h 4014? 2) What is the correct age and income of the deceased by the date of the accident? 3) Whether the petitioners are entitled to the compensation as prayed for? If so from whom? 4) To what relief? 7. The 1st claimant examined himself as P.W.1 and the mother-in-law of the deceased was examined as P.W.2. Exs.A-1 to A- 6 were adduced on behalf of the claimants. The respondents did not adduce any evidence on their behalf. 8. On consideration of evidence of P.W.2 who was travelling in the same car and Exs.A-1, F.I.R. and Ex.A-2-Post Mortem Certificate, the Tribunal held that the accident occurred due to rash and negligent driving on the part of the driver of the lorry. The issue relating to rash and negligence need not be gone into this appeal since the respondents have not chosen to question the award. 9. The point therefore for consideration in this appeal is whether an amount of compensation awarded by the Tribunal is just and reasonable and whether the claimants are entitled for enhancement of compensation? 10. The Tribunal awarded compensation by taking into consideration the income of the deceased as Rs.2,500/- per month and age of the deceased as 30 years and applied ‘16.51’ multiplier. On this account, the Tribunal awarded Rs.3,30,200/-. An amount of Rs.15,000/- was awarded towards loss of consortium and Rs.15,000/- towards loss of estate, in total, the Tribunal awarded Rs.3,60,200/-. The Insurance Company being common to both the vehicles, the liability was fastened to the respondents 1 and 2. 11. The learned counsel for the appellants contended that the Tribunal was not right in taking the income of the deceased at Rs.2,500/- per annum. She further contended that the deceased was enrolled as an advocate in September 1993 and she was a practising advocate at Vijayawada. By the time of accident, she had put in a practice of more than five years. She further contended that an advocate with a practice of five years would earn at least a sum of Rs.5,000/- per month, if not Rs.10,000/- as claimed in the petition. She further contended that the Tribunal did not take into consideration the future prospects of the deceased. She, therefore, contended that the amount awarded towards loss of dependency is very low and the same is liable to be enhanced. 12. Per contra, the learned standing counsel appearing for the Insurance Company contended that no evidence was placed to show that the deceased was practising as an advocate and that she was earning Rs.5,000/- per month and that the future prospects of a professional like advocate is uncertain and hence, the amount awarded is adequate. 13. In the light of the rival contentions, it is necessary to examine the evidence on record. Ex.A-3 is the Certificate of enrolment and identity card issued by the Bar Council of the State of Andhra Pradesh. The deceased was enrolled as an advocate on 08-09-1993 vide enrolment No.AP/1966/1993. From this, it cannot be disputed that the deceased was an advocate. 14. P.W.1 who is the husband of the deceased, in his evidence, deposed that the deceased was a very active member and also a social worker. She conducted several welfare schemes for poor litigants and she used to maintain the family with her own earnings from the profession. In the cross-examination, he categorically stated that his wife was practising initially for two years under Sri Y.V.H.R. (expansion not given). He denied the suggestion that he was claiming exaggerated compensation in the guise of his wife being an advocate. 15. P.W.2 is the mother-in-law of the deceased. She deposed that the deceased was practising advocate and that her daughter-in-law alone was looking after the family and maintaining with her own earnings from the profession. In her cross-examination, while denying the suggestions, she categorically stated that her daughter-in-law was practising independently. 16. From the evidence of P.Ws.1 and 2 coupled with Ex.A- 3, it is evident that the deceased was practising advocate and that the family was being maintained out of the income earned by the deceased from the profession. The respondents did not elicit anything from P.Ws.1 and 2 to doubt the veracity of their evidence. The respondents also did not adduce any evidence to rebut the contention of the claimants that the deceased was a practising advocate. Therefore, the evidence of P.Ws.1 and 2 cannot be disbelieved and in this view of the matter, the only point that has to be considered is with regard to the income of the deceased. 17. No doubt, the claimants did not file any documents in support of the claim that the deceased was earning income varying from Rs.5,000/- to Rs.8,000/- per month. The Tribunal did not accept the same and took the income as Rs.2,500/- per month. In the absence of evidence, it becomes only a matter of guess to arrive at the probable income. The deceased had already put up a standing of more than five years in the profession. She was practising in the City Civil Courts at Vijayawada which is a commercial hub. It can therefore be presumed that the deceased was earning at least a sum of Rs.3,500/- per month, if not Rs.8,000/- to Rs.10,000/- as claimed by the claimants. The claimants categorically stated that the family was depending on the income of the deceased and from this fact also it can be said that a minimum of Rs.3,500/- is required to maintain the family at a place like Vijayawada. 18. In K.Narahari vs. U.Suresh Kumar and another[1], a Division Bench of this Court took a view that it is reasonable to accept the monthly income of an advocate with a standing of seven years as Rs.5,000/- per month to maintain a car and to live in a city like Hyderabad. In National Insurance Company Limited vs. Khimlibai and Others[2], the Apex Court took a view that a Carpenter could comfortably earn Rs.100/- per day, thus his monthly income would be Rs.3,000/-. 19. Having regard to the above, I am of the view that it is reasonable to take the income of the deceased as Rs.3,500/- per month. There were three dependents on the deceased, as such 1/3rd is liable to be deducted from the income towards the expenses required for the deceased. At this rate, the annual dependency would Rs.27,996/- {Rs.3,500/- (-) Rs.1167/- (=) Rs.2,333/- (x) 12}. As there is no dispute that the deceased was aged 30 years, multiplier ‘17’ can be applied. Therefore, the dependency comes to Rs.4,75,932/-. The Tribunal awarded Rs.3,30,200/- on this account. Hence, the appellants are entitled for the differential amount of Rs.1,45,732/- as enhancement of compensation towards loss of dependency. The Tribunal has already awarded Rs.15,000/- towards loss of consortium and Rs.15000/- towards loss of estate and the same need not be interfered with. Thus, the claimants are entitled to a total sum of Rs.5,05,932/-. But the claimants sought Rs.5,00,000/- only in total. The value of the appeal is also restricted to Rs.1,40,000/-. Therefore, I am of the view that the appellants are entitled for enhancement of Rs.1,40,000/- (One lakh and forty thousand only) in this appeal. The claimants are entitled for interest at 6% per annum on this enhanced amount from the date of petition till the date of realization. The amount has to be apportioned as per the orders of the Tribunal in the O.P. As the claimants 2 and 3 are being minors, their shares shall be kept in F.D.Rs. in the same bank as ordered in the O.P. till they attain majority. The award in O.P.No.745 of 1999, dated 22-10-2001 on the file of the Motor Vehicles Accidents Claims Tribunal, Vijayawada, is modified and the appeal is allowed accordingly. There shall be no order as to costs. ___________________ February 2010 KVR [1] 2000 (3) ALT 627 (D.B.) [2] 2009 ACJ 2648