IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWELFTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.3571 of 2003 Between: Farooqunnisa Begum and others ..... APPELLANT(S) AND A.P.S.R.T.C. rep. by its Managing Director and another .....RESPONDENT(S) THE HON'BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.3571 of 2003 ORDER: Appellants, who are wife, children and parents of M.A. Latheef (hereinafter referred to as – ‘the deceased’), filed claim petition in O.P.No.1033 of 2000 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad, seeking compensation of Rs.4,00,000/- under Section 166 of the Motor Vehicles Act, 1988, on account of the death of deceased in a motor accident, alleging that on 22.05.2000 at about 02.30 p.m. while the deceased was going on his Luna bearing No.AHA-3571 and while crossing the road near Classing Tea Point at Meralam Tank Road, a bus bearing No.AP-9Z-205, belonging to the respondent-Corporation, being driven by its driver proceeding from Bahadurpura to Hasan Nagar in a high speed and in rash and negligent manner dashed against the deceased due to which he received serious injuries and was shifted to Osmania General Hospital where he was succumbed to injuries at 5.30 p.m. on the same day. The appellants claim that the deceased was aged 40 years and was earning Rs.5,000/- per month as salary by working as a sales man in jewelry shop. Respondents filed counter denying the averments made in the petition. The Tribunal framed the following issues for trial. (1) Whether the accident in question took place on 22.05.2000 at abou 2.30 p.m. due to rash and negligent driving of the APSRTC bus bearing No.AP-9Z-205 by its driver resulting the death of Mohd. Abdul Latheef @ Shameem? (2) Whether the petitioners are entitled to claim compensation for the death of the deceased as his legal heirs? If so, to what amount and from whom? (3) To what relief? On behalf of the appellants, P.Ws.1 to 4 were examined and Exs.A.1 to A.5 were marked. On behalf of the respondents, R.W.1 was examined and Ex.B.1 was marked. Considering the material on record, the Tribunal, holding that the accident occurred due to the rash and negligent driving of the driver of the RTC bus, awarded Rs.1,97,000/- with interest at 9% per annum from the date of petition till the date of realization as compensation to the appellants for the death of the deceased in the accident. Dissatisfied with the compensation awarded to them, the present appeal is by the claimants. The learned counsel for the appellants vehemently contended that the Tribunal has committed error in not awarding proper compensation. Per contra, the learned counsel appearing for the respondent-Corporation contended that the Tribunal has granted compensation more than what the appellants are entitled to and there is no need to enhance the same. Now the point for consideration is whether the compensation awarded by the Tribunal is ‘Just’ and, if not, to what compensation the appellants are entitled? A perusal of the material available on record makes it clear that the Tribunal has awarded Rs.1,80,000/- towards loss of dependency; Rs.15,000/- towards loss of consortium; and Rs.2,000/- towards funeral expenses; totaling to Rs.1,97,000/-. As seen from the record, the Tribunal took the income of the deceased at Rs.12,000/- per annum after deducting 1/3rd towards his personal expenses. The evidence of P.W.4, who is a colleague of the deceased, coupled with Ex.A.4 salary certificate purported to have been issued by Faheem Jewellers, Suraj Bhan Market, Gulzar House, Charminar, Hyderabad, would go to show that the deceased was earning Rs.4,000/- per month. The Tribunal did not take this evidence in a right perspective and took the earnings of the deceased at a much lesser rate for arriving at the compensation payable to the claimants and, therefore, the compensation awarded by the Tribunal is not a just compensation. For arriving at the just and equitable compensation, I take the income of the deceased at Rs.4,000/- per month which annually comes to Rs.48,000/-. Since there are eight dependent members in the family of the deceased, to arrive at the loss of dependency, as per the judgment of the Apex Court in SARLA VERMA vs. DELHI TRANSPORT CORPORATION[1], there shall be a deduction of 1/5th from the income of the deceased. So, the loss of dependency annually comes to Rs.48,000/- x 1/5 x 12 = Rs.38,400/-. The age of the deceased as per Ex.A.4 post mortem examination report is 42 years. The appropriate multiplier applicable for the age of 42 years as per SARLA VERMA case (1 supra) is ‘14’. Therefore, the loss of dependency comes to Rs.38,400/- x 14 = Rs.5,37,600/-. The Tribunal awarded Rs.15,000/- towards loss of consortium and Rs.2,000/- towards funeral expenses. I am not inclined to interfere with those amounts and I am inclined to grant Rs.3,000/- towards loss of estate. So, the appellants are entitled to Rs.5,37,600/- towards loss of dependency + Rs.15,000/- towards loss of consortium + Rs.2,000/- towards funeral expenses + Rs.3,000/- towards loss of estate; totaling to Rs.5,57,600/-. At this juncture, the learned counsel appearing for the respondent-Corporation contended that since the claim is only for Rs.4,00,000/-, the compensation may be restricted to Rs.4,00,000/-. On the other hand, the learned counsel for the appellants contended that if the claimant is entitled to get more compensation that what is claimed, the Courts are not barred to grant the same and submits that they are ready and willing to pay the deficit court fee on the enhanced compensation. In support of the said contention he placed reliance on a judgment of the Apex Court in the case of NAGAPPA vs. GURUDAYAL SINGH AND OTHERS[2] wherein it was held that under the provisions of the Motor Vehicles Act, 1988, there is no restriction that compensation could be awarded only up to the amount claimed by the claimant and that in an appropriate cases where from the evidence brought on record if the Tribunal/Court considers that claimant is entitled to get more compensation than claimed, it may pass such Award, but the only embargo is that it should be ‘Just’ compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. Per contra, the learned counsel appearing for the respondent-Corporation, relying on the judgment of the Apex Court in the case of ORIENTAL INSURANCE CO.LTD. vs. MOHD. NASIR AND ANOTHER[3], contends that since the Apex Court in NAGAPPA case (2 supra) held that for awarding just compensation, if required, in appropriate cases, the Court may permit amendment to the claim petition and since, in the case on hand, the claimants are not forthcoming with any such application for amendment of the claim, the compensation payable may be restricted to the one claimed. I find force in the contention of the learned counsel appearing for the respondent-Corporation. Since there is no application from the claimants seeking amendment of the claim is forthcoming, the compensation is restricted to Rs.4,00,000/-. However, in the facts and circumstances of the case, the rate of interest on the enhanced compensation is fixed at 6% per annum from today. Therefore, the appeal is allowed and the award of the Tribunal is modified and an award is passed for Rs.4,00,000/- with proportionate costs before the Tribunal payable by the respondent Nos.1 and 2 jointly and severally with interest at 9% per annum on Rs.1,97,000/- from the date of the petition till the date of realization and on Rs.2,03,000/- with interest at 6% per annum on Rs.97,000/- from today till the date of realization. From out of the enhanced compensation, first appellant is entitled to Rs.50,000/- and interest thereon; appellant Nos.2 to 6 are each entitled to 25,000/- and interest thereon; and appellant Nos.7 and 8 are each entitled to Rs.14,000/- and interest thereon. The parties shall bear their own costs in this appeal. ___________________________ GHULAM MOHAMMED, J. 12th August 2010 CVRK [1] AIR 2009 SUPREME COURT 3104 [2] AIR 2003 SUPREME COURT 674 [3] 2010 (1) ALD 74 (SC)