THE HON'BLE Ms. JUSTICE G.ROHINI MACMA. No. 74 of 2008 Dated: 08.11.2010 Between: Smt. M.Suguna and 4 others ..... APPELLANTS AND A.Pradeep Reddy and another. .....RESPONDENTS THE HON’BLE Ms. JUSTICE G.ROHINI MACMA.No. 74 of 2008 J U D G E M E N T: The claimants in O.P.No.5 of 2005 on the file of the Court of the II Additional Metropolitan Sessions Judge– cum-XVI Additional Chief Judge, Hyderabad filed this appeal seeking increase in the compensation awarded. The facts in brief are as under: One Maraiah along with his two children namely Srinivas and Sunitha was riding a scooter bearing No.AP 9779 on 05.05.2004 at about 8.00 p.m. The scooter was hit by a tipper bearing No. AP 9 X 6287 coming from the opposite direction resulting in the death of Maraiah and his son Srinivas on the spot. His daughter Sunitha received injuries. The wife, children and parents of the deceased Maraiah filed O.P.No.5 of 2005 under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs. 4 lakhs. The Tribunal below by order dated 04.08.2007 awarded compensation of Rs. 1,71,000/- together with interest at the rate of 7.5 % per annum from the date of petition till the date of realisation. Not being satisfied with the quantum of compensation awarded, the present appeal has been preferred under Section 173 of the Act. I have heard the learned counsel for both the parties and perused the material available on record. I have also heard the learned counsel appearing for the 2nd respondent-Insurance company. Despite notice, the first respondent-owner of the vehicle did not choose to appear. Though it was contended before the Tribunal that the deceased was guilty of contributory negligence resulting in motor accident, the same was not accepted and it was held by the Tribunal that the motor accident took place due to rash and negligent driving of the driver of the Tipper. As the said finding has become final, the only question that requires consideration is whether the compensation awarded by the Tribunal below is just and reasonable. The first claimant/appellant No.1 herein who is the wife of the deceased deposed as P.W.1 and the daughter of the deceased who was also travelling on the scooter gave evidence as P.W.2. Exs.A.1 to A.8 documents were marked through P.W.1 to substantiate the claim for compensation of Rs. 4 lakhs. The certified copies of F.I.R., Inquest report, Forensic report and final report were marked as Exs.A.1 to A.4 respectively. The certified copy of the Motor Vehicles Inspectors report was marked as Ex.A.5. Though it was claimed by the claimants that the deceased was 35 years old, in the absence of any other material to establish the same, relying upon the age shown in Exs.A.2 and A.3 the Tribunal below took the age of the deceased as 42 years as on the date of the motor accident. So far as the income of the deceased is concerned, it was deposed by P.W.1 that her husband was a real estate agent in Sai Real Estates and he was earning Rs. 6,000/- per month. In support of the said plea, Ex.A.6 Salary Certificate said to have been issued by the Sai Real Estate was marked. However, the Tribunal below held that in the absence of any satisfactory proof with regard to the earning capacity of the deceased, the earnings should be taken as Rs. 50 per day as daily labourer. Accordingly, it was held that the income of the deceased was Rs.1,500/- per month, out of which 1/3 was deducted towards his personal expenditure. Since the age of the deceased was taken as 42 years as on the date of the motor accident, it was held that the relevant multiplier was 13 as per the guidelines of the 2nd Schedule to Section 163-A of the Act. Thus, it was concluded that the contribution of the deceased would come to Rs. 1,56,000/- (1,500 x 2/3 x 12 x 13). That apart, a sum of Rs.15,000/- was granted towards loss of consortium to the claimant No.1. Thus a total sum of Rs. 1,71,000/- was awarded towards compensation together with interest at the rate of 7.5% per annum from the date of petition till the date of realisation making the respondents 1 and 2 jointly and severally liable. The present appeal is filed contending that the Tribunal below committed an error in ignoring Ex.A.6 salary certificate while awarding the compensation to the appellants. It is also contended that the appropriate multiplier should be 15 as per the 2nd Schedule to the Act and not 13 as held by the Tribunal below. It is further contended that the Tribunal below had committed a grave error in not awarding any amount towards loss of estate and funeral expenses and therefore, the compensation awarded was not just and reasonable. It is clear from the order under appeal that the Tribunal below had completely ignored Ex.A.6 salary certificate. No reasons are forthcoming for discarding the said certificate. Hence, I find force in the submission of the learned counsel for the appellant that the Tribunal below was not justified in assessing the earning capacity of the deceased at the rate of Rs.50/- per day. Even assuming that the plea of the applicants that the deceased was working as a real estate agent and was earning Rs.6,000/- per month was not established in the absence of evidence of the person who had issued the Ex.A.6 certificate, there is no justifiable reason to assume that the deceased was earning only Rs.50/- per day. Even a daily labourer earns minimum Rs.100/- per day and therefore, it would be appropriate to take that the deceased was earning at least Rs. 3,000/- per month. So far as the age of the deceased is concerned, the Tribunal below was justified in taking it as 42 years as per Exs.A.2 and A.3. The Tribunal below was also justified in deducting 1/3rd towards personal and living expenditure of the deceased. So far as the multiplier is concerned, as held in Sarla Verma V. Delhi Transport Corporation[1], multiplier should be 14 if the age of the deceased is between 41 to 45. Therefore, the correct multiplier is 14 but not 13 as held by the Tribunal. Accordingly, the contribution of the deceased to his family shall be Rs.3,36,000/- (3,000x 2/3 x 12 x 14). As rightly submitted by the learned counsel for the appellant, apart from Rs.15,000/- awarded by the Tribunal towards loss of consortium, the appellants are also entitled to a further sum of Rs.15,000 towards of loss of estate and Rs. 5,000/- for funeral expenses. Thus, in my considered opinion the appellants shall be entitled to a total sum of Rs.3,71,000/- towards compensation together with interest at the rate of 7.5% per annum from the date of petition till the date of realisation. The appeal is accordingly allowed partly. No costs. _____________ G. ROHINI, J Date: 08.11.2010 KLP [1]AIR 2009 SC 3104