HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.CHANDRA KUMAR M.A.C.M.A. No.2365 OF 2005 DATED:28-08-2009 BETWEEN: Kanamauru Kumar & Another. …Appellants AND K. Anupama & Another. …Respondents This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.CHANDRA KUMAR M.A.C.M.A. No.2365 OF 2005 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The claimants in motor accident claim filed this appeal seeking further enhancement of compensation awarded by IV Additional Chief Judge-cum-Motor Accident Claims Tribunal, City Civil Court, Hyderabad, dated 12.5.2005 in O.P.No.2725 of 2002. The claimants-appellants herein are the parents of Kanamaluru Aravindh (hereinafter referred to as ‘deceased’) who died in a motor vehicle accident that occurred on 27.10.2002. On the fateful day of 27.10.2002 at about 9.30 p.m. while the deceased was returning to Attapur from Rethibowli on scooter bearing No.AP 13 2199 and when reached in front of Bharath Hotel at Ring Road, a lorry bearing No.AP 16X 5008 driven by its driver in a rash and negligent manner proceeding in the same direction, dashed the scooter of the deceased and another scooter in which three persons were traveling from behind, due to which, the deceased as well s the other three persons on scooter bearing No.AP 9Q 3855 died instantaneously. A case in crime No.250 of 2002 under Section 304-A IPC against the driver of the lorry was registered. After the accident, the lorry went one furlong further, the driver of the lorry fled away and later committed suicide taking poison and to that effect, a case in Crime No.93 of 2002 was registered. Since the deceased was unmarried, his parents filed the above claim petition claiming compensation of Rs.20 lakhs contending that the deceased was working as a Senior Programmer (software Engineer) in M/s.Reliant Computer Centre and drawing a salary of Rs.18,549.50 ps. at the time of death and also got a job at ITL IRMAX Ltd. as an Analyst Programmer and was offered salary of £24,000 per annum. While 1st respondent, the owner of the lorry remained ex parte, the 2nd respondent-Insurance Company, contesting the claim, filed a counter denying and disputing the rash and negligent driving of the lorry by its driver, coverage of the insurance policy by the vehicle, income of the deceased. It was pleaded that the compensation claimed is excessive and exorbitant. Later, an additional counter was also filed contending that the 1st claimant was very well settled and working as an Additional Superintendent of Police (Intelligence) and was drawing good salary and even after retirement, he gets the retirement benefits and so the claimants are not at all dependants on the deceased, and that they are not entitled to compensation for the pain and sufferings as the deceased died instantaneously. In order to prove the rash and negligence driving of the lorry by its driver and the income of the deceased, 1st claimant himself examined as P.W.1; one Zafar Mahmood, an eyewitness to the accident was examined as P.W.2; and the employer of the deceased was examined as P.W.3 and Exs.A.1 to A.15 were marked. On behalf of 2nd respondent, the Assistant Regional Manager was examined as R.W.1 and the attested copy of insurance policy was marked as Ex.B.1. The Tribunal after evaluating the oral and documentary evidence adduced by the parties, on issue No.1 held that the claimants established the rash and negligent driving of the lorry by its driver, which resulted in the instantaneous death of the deceased. Considering the income of the deceased under issue No.2, it was observed that though Ex.A.4-salary slip issued by P.W.3-employer shows that the deceased was being paid Rs.18,549.50 ps., it was neither established nor proved by the claimants. Further, observing that the Work-permit of U.K. under Ex.A.5 also did not establish that the deceased was given employment and no necessary stamping was done by the U.K. Embassy for enabling the deceased to go to U.K., the tribunal held that the salary that was offered to the deceased under Ex.A.5 at £24,000 per annum cannot be taken into consideration for arriving the loss of income of the deceased. However, taking into consideration of Ex.A.14-appointment letter, which goes to show that the deceased was appointed with the organization of P.W.3 on a monthly consolidated salary of Rs.6,000/- during the probation period and that in the absence of any proceedings issued by P.W.3 declaring the probation and appointing the deceased on regular basis, the tribunal took the salary of the deceased at Rs.4,000/- per month and arrived the annual income at Rs.48,000/- and after deducting 1/3rd therefrom, arrived the net income at Rs.32,000/- per annum. As the deceased was unmarried, taking the age of his mother-2nd claimant as 56 years, adopted the ‘11’ multiplier and arrived at the total loss of income at Rs.3,52,000/- (32,000/- x 11). Besides that, a sum of Rs.2,000/- was awarded towards funeral expenses. Seeking further enhancement of the compensation, the present appeal is filed. In spite of service of notice, the respondents have not chosen to put up appearance contesting the appeal. We have heard Sri K.Subba Rao, learned counsel appearing for the appellants-claimants and also gone through the entire material available on record. To prove the rash and negligent driving of the lorry by its driver, the appellants-claimants examined the eyewitness to the accident as P.W.2, who is working as Sub-Inspector of Police. According to P.W.2, on 27.10.2002 at about 9.30 p.m. while he was on patrolling duty and while he was taking dinner in Bharat Hotel, Ring Road, he found two wheeler Bajaj Chetak with one rider and another scooter with two pillion riders proceeding towards Attapur from Rethi Bowli and at that time, he also found the accident vehicle loaded with iron sheets proceeding in the same direction, and that the said lorry dashed both the scooters, as a result of which, all the four persons fell down and the lorry ran over them causing instant deaths. To that effect he lodged Ex.A.2 complaint. According to him, the lorry driver left the vehicle and made good his escape. Though he was subjected to lengthy cross-examination, nothing contra was elicited to discredit his testimony. He denied the suggestion that he being the police personnel, deposing falsely to help the 1st claimant, who is working as Additional Superintendent of Police. The contents of Ex.A.1, certified copy of First Information Report and Ex.A.2 certified copy of complaint lodged by P.W.2 corroborated the evidence of P.W.2 with regard to the rash and negligent driving of the lorry by its driver. The tribunal taking the said evidence into consideration rightly held that the accident was occurred due to the rash and negligent driving of the lorry by its driver and the said finding needs no interference by this Court. Coming to the quantum of compensation, the age of 2nd claimant-mother of the deceased is shown as 50 years in Ex.A.3- inquest report, whereas the age of 1st claimant was shown as 56 years on the date of inquest that was conducted on 28.10.2002. Since the 2nd claimant-mother of deceased did not enter into witness-box so as to enable other side to confront with regard to her age stated to be 48 years, the tribunal was justified in taking her age as 50 years as on the date of accident. P.W.3, the employer of deceased admitted in the cross-examination that the deceased was not a Computer Engineer and the appointment letter Ex.A.14 shows that deceased was paid Rs.6,000/- per month on consolidated initially, and that Ex.A.4-salary certificate was issued to the deceased in the month of September, 2002 showing the gross salary at Rs.18,549.50 ps. and net salary at Rs.15,902.92 ps. after deductions. She also admitted that Form No.16-A was not given to the deceased while deducting the tax at source from his salary and she also admitted that the deceased did not go to U.K. Embassy at New Delhi for stamping the passport in view of the offer received under Ex.A.5, which is shown as work permit from M/s.DATAMATIC Company with an offer of salary at £24,000 per annum. Admittedly, Ex.A.5 work permit was issued on 27.5.2002, but till the date of accident, the deceased did not obtain any Visa nor any stamping was made on the passport. Therefore, as rightly held by the tribunal, the offer under Ex.A.5 cannot be taken into consideration while determining the income of the deceased. Ex.A.4 salary certificate shows the salary of the deceased at Rs.18,549.50 ps. Ex.A.4 was issued in the month of September by M/s.Reliant Computer Centre owned by P.W.3, but the relevant year is not specified therein. However, P.W.3 deposed that Ex.A.4 was issued in the month of September, 2002. The tribunal was right in not taking Ex.A.4 into consideration for the reason that P.W.3 in the cross-examination admitted that provident fund number is not mentioned in it, however, she stated that the salary shown therein is reflected in the accounts and ledger books of the company, but she has not filed the ledger books into the Court. She also admitted in the cross-examination that she cannot produce the authenticated or official documents of salary of her employees and that she does not know whether T.D. deductions were deducted from the salary of the deceased and her Charted Accountant alone knows it. In view of the above evidence and in the absence of any proof of completion of probation of the deceased and as he was not offered regular employment, as rightly observed by the tribunal, Ex.A.14 would help to some extent for determining the income of the deceased. Admittedly, Ex.A.14 was issued on 24.5.1999, wherein it was mentioned that the deceased was put on probation for the first six months of his service during which period, he would be paid a consolidated salary of Rs.6,000/- per month, and that on successful completion of probation period, his employment would be confirmed in a regular grade. But, there are no particulars in Ex.A.14 as to what is the regular grade and what would be the salary after probation. However, Ex.A.9 shows that the deceased attended and completed Professional Training Programme A.S.P. 3.0 during the period May, 2000 to June, 2000 at Cyber Tech Institution. In the circumstances as referred to above, it is for the claimants to establish that deceased was drawing net salary of Rs.15,902.92 ps. as reflected under Ex.A.4 salary pay slip. As already stated, except referring the month as September, Ex.A.4 is silent about the year, in which, the said salary was paid to the deceased. The evidence of P.W.3-employer of deceased is not satisfactory about the confirmation of the employment of the deceased on regular basis, but the fact remains that he was working with the organization of P.W.3 on successful completion of probation period and in the normal course, the salary would increase after completion of probation period. Therefore, by taking 23% of increase in the salary reflected in Ex.A.14, we can fix the income of the deceased at Rs.7,500/- per month as on the date of accident. Since the deceased was unmarried, after deducting 50% towards personal expenditure, the balance of Rs.3750/- can be taken as the contribution to the family. Therefore, the annual contribution to the family comes to Rs.45,000/-. With regard to the multiplier, the age of mother of deceased is shown as 50 years in the inquest report, which was accepted by the tribunal and therefore, as per the recent decision of Apex Court reported in Smt. Sarla Verma & Others v. Dehli Transport Corporation & Another[1], the appropriate multiplier applicable to the age group of 46-50 is ‘13’. Therefore, by applying the multiplier 13, the total loss of dependency comes to Rs.5,85,000/-. We accordingly fix the loss of dependency at Rs.5,85,000/- apart from Rs.2,000/- awarded by the tribunal towards funeral expenses. The compensation has to be shared equally by both the appellants-claimants. The 2nd respondent is directed to deposit the enhanced compensation by the end of October, 2009, failure to which, the same shall carry interest at the rate of 6% per annum from 01.11.2009 till realization. The appeal is allowed as indicated above. No order as to costs. _______________ A. GOPAL REDDY, J. __________________ B.CHANDRA KUMAR, J AUGUST 28, 2009 Tsr. [1] 2009(3) Supreme 487