THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD C.M.A.No.2882 of 2003 & C.M.A.No.3840 of 2003 (Dated : 28-12-2010) C.M.A.No.2882 of 2003 Between: APSRTC rep. By its Managing Director Musheerabad, Hyderabad. …Appellant A n d Smt. Y.Swetha and others …Respondents C.M.A.No.3840 of 2003 Between: Smt. Y.Swetha and others …Appellants A n d APSRTC rep. By its Managing Director Musheerabad, Hyderabad. …Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD C.M.A.No.2882 of 2003 & C.M.A.No.3840 of 2003 COMMON JUDGMENT: ( Per Hon’ble Sri Justice B.Seshasayana Reddy) These two Civil Miscellaneous Appeals arise out of order dated 21.3.2003 passed in M.V.O.P.No.389 of 2000 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-Additional District Judge, Chittoor at Tirupati, whereby and whereunder, the learned Chairman of the Motor Accidents Claims Tribunal allowed the O.P in part and granted compensation of Rs.4,14,000/- with interest at 9% per annum from the date of the petition till the date of realization. 2. Y.Vasantha Rao was an agriculturist and he was also a pawn broker. On 31.5.2000 at about 5.30 a.m., he along with his friend K.Surendra was proceeding to Srikalahasthi from his village B.N.Kandriga on a TVS Moped bearing No.AP 03 C 7060. He was riding the moped whereas his friend Surendra was the pillion rider. On nearing Challamambapuram village, near M.D.R 65 KM stone on Srikalahasthi-Madras road, one APSRTC bus bearing No. AP 9Z 6140 came from opposite direction driven in a rash and negligent manner and dashed the TVS Moped and as a result, the rider and pillion rider fell on the ground and sustained serious bleeding injuries. Vasantha Rao-rider met with instantaneous death and whereas the pillion rider-K.Surendra succumbed to the injuries while undergoing treatment in the hospital. A report came to be presented before the Station House Officer, B.N.Kandriga P.S regarding the accident. Thereupon, the S.H.O., B.N.Kandriga P.S. registered a case in Crime No.19 of 2000 under Sections 304-A and 338 IPC. After due investigation, the S.H.O filed a charge sheet against driver of the APSRTC bus bearing No.AP 9Z 6140. The charge sheet was taken on file by the Additional Judicial First Class Magistrate, Srikalahasthi in C.C.No.346 of 2000. 3. The widow, the children and the mother of Vasantha Rao (hereinafter referred to as `the deceased’) filed claim petition under Section 166-1(c) of Motor Vehicles Act, 1988 read with Rules 455 and 475 of A.P.Motor Vehicle Rules, 1989 claiming compensation of Rs.15 lacs. According to them, the respondent-Andhra Pradesh State Road Transport Corporation (hereinafter referred to as `the Corporation’) being the owner of the offending bus is liable to pay compensation. They pleaded in the petition that the deceased was Proprietor of Sai Sudha Pawn Broker Shop and was earning Rs.10,000/- per month. He was also having Ac.2.50 cents of lemon garden at Neerpakkota of B.N.Kandriga mandal and was earning Rs.1,00,000/- per annum. After his death, the lemon garden weathered away and thereby, they lost their source of livelihood. The deceased was aged 34 years according to the claimants. Therefore, they claim compensation of Rs.15 lacs for the death of their sole bread earner in the accident under various heads. 4. As can be seen from column No.25 of the claim petition, the amounts claimed under various heads read as hereunder:- Amount of compensation claimed: Rs.15,00,000/- (Rupees fifteen lakhs only) FOR SPECIAL DAMAGES a) Transportation of the dead body to Government Hospital, Srikalahasthi and to native place Rs.10,000=00 b) Damages to clothing and TVS Champ Rs.5,000=00 c) Funeral Expenses Rs.2,500=00 II. FOR GENEAL DAMAGES a) Compensation for pain and sufferings of the deceased Rs.10,000=00 b) Compensation for loss of expectation of life and loss of amenities of life etc. Rs.15,000=00 c) Compensation for loss of consortium for the 1st petitioner Rs.15,000=00 d) Compensation for loss of love and affection for petitioners 2 and 3 at Rs.10,000/- each Rs.20,000=00 e) Compensation for loss of dependency , loss to estate etc. Rs.14,31,500=00 Total: Rs.15,00,000=00 5. The respondent filed counter resisting the claim of the claimants. The counter of the respondent, in brief, is: 6. The claimants are put to strict proof of the age and income of the deceased. The compensation claimed by the claimants on various counts is excessive and exorbitant. The driver of the bus drove the bus with due care and caution. The deceased drove the Moped in a rash and negligent and zig-zag manner and in high speed and thereby, the accident occurred. The deceased dashed the stationed APSRTC bus and therefore, he himself was responsible for the accident and the respondent-Corporation is not liable to pay compensation. Therefore, sought for dismissal of the O.P. 7. On the above pleadings, the tribunal framed the following issues:- 1) Whether the deceased Y.Vasantha Rao died due to rash and negligent driving of the bus AP 9 Z 6140 ? 2) Whether the petitioners are entitled for compensation and if so, to what amount ? 3) To what relief ? 8. On behalf of the claimants, three witnesses were examined as Pws.1 to 3 and 13 documents were marked as Exs.A-1 to A- 13. On behalf of the respondent-Corporation, one witness was examined as Rw.1. 9. The tribunal, on considering the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the bus owned by the Corporation and that the claimants are entitled to claim compensation of Rs.4,14,000/- with interest at 9% per annum from the date of the petition till realization. Accordingly, allowed the O.P in part, by order dated 21.3.2003. 10. Aggrieved by the order, the claimants filed C.M.A.No.3840 of 2003 and whereas the A.P.State Road Transport Corporation filed C.M.A.No.2882 of 2003. 11. When the appeals came up for hearing on 24.12.2010, there was no representation on behalf of APSRTC and therefore, the appeals were directed to be listed on 28.12.2010 under the caption `For Judgment’. Even today, there is no representation on behalf of APSRTC. 12. Heard learned counsel appearing for the claimants and perused the order impugned in the appeals. 13. Learned counsel appearing for the appellants-claimants submits that the compensation awarded by the tribunal is not just compensation and therefore, it is required to be enhanced considerably. According to him, the deceased Vasantha Rao was an agriculturist and was also a businessman earning agricultural income of Rs.1,00,000/- per annum apart from Rs.10,000/- per month from pawn broker business. Learned counsel refers the evidence of Pw.3 A.V.Sudhakar Reddy, Village Administrative Officer. Pw.3 testifies that the deceased Vasantha Rao raised lemon garden in two acres of land owned by him and thereby, getting annual income of Rs.2 lakhs and after his death, lemon garden weathered away. He further testifies that the deceased Vasantha Rao was getting an income of Rs.10,000/- through his pawn broker business. In the cross- examination, he admits that pattadar passbooks and title deeds, which have been exhibited as Exs.A-6 and A-7, do not indicate of deceased Vasantha Rao raising lemon garden in the lands owned by him. He categorically admits that he has not filed any record to show that lemon garden raised by the deceased during his life time weathered away after his death. For better appreciation, we may refer the relevant portion of the cross- examination of Pw.3 in his own words:- “ Passbooks Exs.A-6 and A-7 were issued by R.D.O in the year 1995. Exs.A.6 and A.7 patta passbooks and title deed go to show that the deceased was owning 2 acres of land. I cannot give the boundaries of 2 acres of the deceased. Lemon garden was raised in the entire extent of 2 acres. I have not filed any record to show that lemon garden was raised by the deceased in his 2 acres and that the deceased was getting Rs.2,00,000/- per annum. It is not true to suggest that the deceased did not raise any lemon garden and hence there is no question of getting Rs.2,00,000/- per annum. I have also not filed any document to show that the deceased was running pawn broker shop business and getting Rs.10,000/- p.m. The deceased is a resident of Buchinaidukandriga. I am giving evidence on the request of the petitioner. It is not true to suggest that I am deposing falsely at the instance of the petitioner.” 14. Except the evidence of Pw.3, the claimants did not examine any one to speak of the deceased raising lemon garden in 2 acres of land owned by him and the lemon garden being weathered away after his death. Exs.A-6 and A-7 are pattadar passbooks. They do not indicate that the deceased Vasantha Rao raised lemon garden in the lands owned by him. The tribunal by giving cogent and convincing reasons refused to rely on the evidence of Pw.3. 15. It is contended by the learned counsel appearing for the claimants that the deceased was having a licence to do pawn broker business and therefore, it is to be construed that the deceased was a businessman and mere failure to file income tax returns could not be a ground to reject the monthly earnings of the deceased as pleaded by the claimants. The claimants pleaded that the deceased was getting Rs.10,000/- per month through pawn broker business. The claimants placed on record the certificate of registration, certificate of enrolment issued by DCTO, Srikalahasthi, renewal certificate of registration, proceedings issued by RDO and certificate of registration issued by Inspector of Legal Meterology dated 7.2.2000. The claimants exhibited the said documents as Exs.A.9 to A.13. It appears the licence to do pawn broker business standing in the name of the deceased Vasantha Rao came to be renewed after his death. As on the date of his death, the certificate standing in the name of the deceased vasantha Rao came to be lapsed. The tribunal has taken note of this fact and observed as hereunder:- “ Coming to the income of the deceased, it is the case of the petitioners that the deceased was running pawn broker shop and was earning income of Rs.10,000/- p. m or Rs.1,20,000/- p.a . To prove that the deceased was doing pawn broker business, the petitioners filed Exs.A.5, A.8 to A.13. Learned counsel for the respondent also did not dispute about the running of the pawn broker shop by the deceased. But his only contention is that the licence to run pawn broker shop was expired by 31-03-2000 and after that he did not get it renewed till he died in the accident on 31-5- 00, as he discontinued the said business and that the petitioners got renewed the said licence on 26-4-00 in order to claim excess compensation. It is also the case of the respondent that no record is filed to prove the income of the deceased from the business and that the petitioners would have earn maximum of Rs.1000/- pm from the pawn broker shop. He further submitted that if really the deceased was getting income of Rs.10,000/- p.m from pawn broker business and one lakh from agriculture, he would have filed returns before the Income Tax authorities and non filing of income tax returns before the Court , itself go to show that the deceased was getting nominal income from the business and agriculture. He further submitted that Exs.A.7 and A.8 title deed and patta pass book go to show that the deceased was owning Ac.2.05 cents dry land and hence, there is no question of earning one lakh from the agriculture. He further submitted that though the petitioners are contending that the deceased raised lime garden, no record is filed to prove the same and Exs.A.7 and A.8 also go to show that the land is only dry land and not garden land. But the learned counsel for the petitioners submitted that the evidence of Pw.3 who is no other than the VAO of Neerpak Kota village, go to show that the deceased raised lime garden and thereby earning Rs.2 lakhs p.a. As rightly contended by the counsel for the petitioners, the petitioners could prove that the deceased was doing pawn broker business and he is also owning agricultural lands, but failed to prove the income of the deceased from pawn broker business and the agriculture. Even Pw.1 who is no other than the wife of the deceased categorically admitted in the cross examination that she has not filed any document to prove that her husband was getting Rs.10,000/- p.m from business and one lakh from the agriculture. Admittedly, the income tax returns are not filed. It is not known whether the deceased was the income tax assessee or not. If really the deceased was getting Rs.1,00,000/- from the agriculture and Rs.1,20,000/- from business, he would have become income tax assessee and filed income tax returns. Since the petitioners have not filed the income tax returns, it can be safely said that the deceased was getting nominal income from the business and the agriculture and hence, he did not became assesee. The evidence of Pw.3 VAO is not trust worthy, since he deposed that the deceased was getting two lakhs as agricultural income, though it is the definite case of the petitioners that the deceased was getting only Rs.100000/- from agriculture. Since there is no record to prove the income of the deceased both from business and agriculture, I feel that it is a fit case to fix the income of the deceased at Rs.3,000/- p.m or Rs.36,000/- p.a. Out of it, 1/3rd amount is deducted towards the personal expenses of the deceased, the actual loss of contribution to the family comes to Rs.24,000/- p.a”. 16. Learned counsel appearing for the claimants submits that the deceased Vasantha Rao was a petty businessman and mere non-filing of the income tax returns cannot be a ground to reject the plea of the claimants with regard to the earnings of the deceased. In support of his contention, learned counsel placed reliance on the decision of the Allahabad High Court in Vishwa Mitra Chaddha v. Amrit Kaur[1], wherein it has been observed that a small businessman having an average income just above the non-taxable limits, may not have bothered to file a return or pay income tax. The fact that he did not pay income tax would not mean that really his income was less than the minimum exemption limits. 17. Coming to the facts of the case on hand, the claimants have not placed on record any proof to show that the deceased was running a pawn broker business as on the date of his death. If at all, the deceased was running a pawn broker business, there must be some documentary proof to speak of his business. The question whether he paid tax or not is altogether a different matter. Therefore, the cited decision has no application to the facts of the case on hand. 18. Learned counsel also placed reliance on the decision of Delhi High Court in V.Subbulakshmi v. S.Lakshmi[2] in support of his contention that the income from agriculture and business as claimed by the claimants is required to be taken for assessing the loss of dependency. What is stated in the cited decision is some guess work is inevitable in case of there being no documents placed on record with regard to the income of the deceased. Para (18) of the cited judgment needs to be noted and it is thus:- “( 18 ) IN the aforementioned fact situation, the High Court has not relied upon all the aforementioned documents, filed by the appellant. It may be true that there was no basis for the High Court to arrive at the conclusion that the income of the deceased was rs. 4,000. 00 from agricultural operation and rs. 3,000. 00 from his commission business, but no reliable document having been produced to show that the deceased was earning an income of Rs. 12,500. 00 per month, as claimed. The High Court, in our opinion, cannot be held to have, thus, committed any grave error in this behalf. There is no dispute as regards application of the multiplier. In a case of this nature, some guess work is inevitable. This Court could have gone into the question provided there was some materials had been brought on record by the appellants upon which reliance could be placed. There being no such material available on record, we are not in a position to interfere with the impugned judgment of the High Court.” 19. Coming to the facts of the case on hand, the claimants have not placed on record as to what was the turn out of the business of the deceased as on the date of his death. The deceased was having only 2 acres of land. Though the appellants-claimants pleaded that the deceased was raised lemon garden and after his death, the lemon garden weathered away, no material has been placed to substantiate their contention. The tribunal having taken note of various facts and circumstances assessed the income of the deceased at Rs.3000 per month and at Rs.36,000/- per annum. The assessment made by the tribunal, in our considered view, is fair, just and reasonable. We are not inclined to interfere with the findings of the tribunal on this aspect. 20. With regard to deduction of amount towards personal expenses, the total dependants of the deceased exceeds four apart from self. Deduction towards personal expenses as held by Sarla Verma v. Delhi Transport Corporation[3] has to be taken into consideration at 1/4th. Hence, 3/4th of the income of the deceased Vasantha Rao was to be taken as his contribution to the family, i.e.,[ Rs.36,000/-9000/-] Rs.27,000/-. The multiplier adopted by the tribunal is 16. Applying the same, the loss of dependency would come to Rs.4,32,000/-[Rs.27,000/- X 16]. The tribunal awarded a sum of Rs.15,000/- towards loss of consortium, Rs.10,000/- (Rs.5,000/- each) towards loss of love and affection and Rs.5,000/- towards special damages [ Rs.1,000/- for transport charges, Rs.2,000/- towards damage to clothing and TVS Moped and Rs.2,000/- towards funeral expenses]. We are not inclined to interfere with the same. Thus, in all, the claimants are entitled to Rs.4,62,000/-. 21. Accordingly, C.M.A.No.3840 of 2003 filed by the claimants is allowed in part enhancing the compensation from Rs.4,14,000/- to Rs.4,62,000/-. The enhanced amount shall carry interest at the rate of 6% per annum. The compensation amount shall be apportioned as follows:- Claimant No.1 Rs.1,50,000=00 Claimant No.2 Rs.75,000=00 Claimant No.3 Rs.75,000=00 Claimant No.4 Rs.1,62,000/- 22. Claimant No.1 is entitled to withdraw Rs.50,000/- along with interest accrued thereon. The 4th claimant is permitted to withdraw the entire share of compensation awarded to her. The compensation awarded to claimants 2 and 3 shall be kept in Fixed Deposit initially for a period of three years renewable from time to time till they attain their respective ages of majority. The 1st claimant is entitled to withdraw the interest accrued on the Fixed Deposit of the minors to meet their educational expenses. 23. The appeal filed by the Andhra Pradesh State Road Transport Corporation, i.e., C.M.A.No.2882 of 2003 is dismissed. No order as to costs. _____________________ B.SESHASAYANA REDDY, J _________________ P.DURGA PRASAD, J Dt.28-12-2010 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD C.M.A.No.2882 of 2003 & C.M.A.No.3840 of 2003 (Common judgment delivered by Hon’ble Sri Justice B.Seshasayana Reddy) (Dated : 28-12-2010) THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD P.D.Judgment in C.M.A.No.2882 of 2003 & C.M.A.No.3840 of 2003 [1] 1972 ACJ 213 [2] 2008 ACJ 936 [3] (2009)6 Supreme Court Cases 121