THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No. 360 of 2003 & Cross Objections (SR) No. 29731 of 2003 COMMON JUDGMENT: The C.M.A. is filed by the insurance company against the order dated 13.9.2002 in O.P.No.678 of 1998 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-Additional District Judge, Adilabad whereby and whereunder the claim petition of petitioners 2 to 4 was dismissed and that of the first petitioner was allowed-in-part awarding a total compensation of Rs.3,28,500/- as against the claim of Rs.3,50,000/-,with proportionate costs and interest at 9% per annum from the date of the petition till the date of realisation. 2. The cross objections are filed by the claimants being not satisfied with the compensation awarded by the Tribunal. 3. The facts leading to the filing of this C.M.A. can be summarised as follows: On 2.6.1996 at about 8.00 p.m., the deceased was proceeding on his TVS Champ (moped) towards ACC Chowrastha from Mancherial; that lorry bearing No.AEE 5459 came in the opposite direction at high speed driven in rash and negligent manner by its driver and dashed against the moped causing the death of the deceased on the spot; that the Police, Mancherial registered a case in Crime No.115/96 under Section 304-A IPC against the driver of the lorry. 4. The fifth respondent remained ex parte. The insurance company filed counter denying the petition averments including rash and negligent driving on the part of the lorry driver and also denying the age, avocation and earnings of the deceased and alleging that the accident lorry driver was not having valid driving licence by the date of the accident. 5. Basing on the pleadings on either side, the following issues were framed for trial: i. Whether the death of the deceased M.Narsimha Reddy occurred on 2-6-96 at 8.30 p.m. due to the negligent driving of lorry bearing No.AAE-5459? ii. What is the amount of compensation the petitioners are entitled to? iii. To what relief? 6. During the course of trial, on behalf of the claimants, the first respondent was examined as PW.1 and Exs.A.1 to A.14 were marked. However, no witnesses were examined and no documents were marked on behalf of the appellant-insurance company. 7. That I.A.No.667 of 2000 filed by the appellant-insurance company under Section 170 of the Motor Vehicles Act was allowed. 8. Taking into consideration the evidence of PW.1 coupled with Ex.A.1-FIR, Ex.A.5-M.V.I.report and other material on record, the lower Tribunal answered the first issue that the accident had occurred due to rash and negligent driving on the part of the driver of the lorry bearing registration No.AEE- 5459. In the process of considering issue No.1, the Tribunal observed that though the respondents claimed that the deceased was earning Rs.10,000/- by doing agriculture as well as contract business, however, Exs.A.8-Pahani and Ex.A9-Pattadar passbook were considered to be insufficient to come to the conclusion that the deceased was owning the extent of lands as claimed by the claimants and the income derived therefrom. It has also observed that nothing was projected to establish that the deceased was regular Class-II Contractor having substantial work to show his income of Rs.5,000/- per month. That even, the neighbouring land holders were also not examined to prove the yield and the value thereof. However, considering the fact that the insurance company failed to adduce any oral or documentary evidence and considering Exs.A9 and A13- pattadar passbooks and title deeds showing Ac.9.00 of dry land being owned by the deceased, the Tribunal assessed annual income of the deceased at Rs.36,000 per annum and after deducting 1/3rd therefrom towards his personal expenses, fixed his monthly income from agriculture as Rs.2,000/-, so also by considering Ex.A.11, the Tribunal fixed his monthly income at Rs.4,500/- from contract business. Out of which 1/3rd was liable to be deducted towards his personal expenses and by deducting the same it had fixed the monthly income of the deceased at Rs.3,000/-per month from the contract business. Thus, the Tribunal has fixed the total monthly income of the deceased at Rs.5,000/-(Rs.2,000/- from agriculture and Rs.3,000/- from contract business). That the Tribunal considering the II Schedule of the Motor Vehicles Act and the age of the deceased as 58 years applied multiplier “5” and arrived at the total loss of annual dependency to the family on account of the death of the deceased at Rs.3,00,000/-. (Rs.60,000 x 5). In addition thereto, the Tribunal has awarded Rs.15,000/- towards loss of estate, Rs.1,000/- towards transportation, Rs.2,500/- towards funeral expenses and Rs.10,000/- towards loss of consortium. Thus the Tribunal awarded a total compensation of Rs.3,28,500/-. 9. The learned standing counsel for the appellant-insurance company contends that the Tribunal ought not to have fixed the agriculture income of the deceased as he is a full-fledged contractor and as he was carrying on the contract business, he could not have simultaneously carried on the agricultural operations. It is further contended that even presuming that the deceased possessed agricultural land to the extent as mentioned in Exs.A9 and A13, after his death, the claimants who are his L.Rs must be giving the same lands on lease to others and as such cannot be said that there is a loss of income from agriculture to them since the deceased cannot be said to have been cultivating the same personally as he was engaged in contract business. Therefore, the monthly income from the agriculture as fixed by the Tribunal may not be considered and the income from the contracts may only be taken into consideration and while considering the same, Ex.A.11 should not be lost sight of as it pertains to one year only i.e. 1995-1996, as such, the Tribunal was in error in fixing Rs.4,500/- as the monthly income of the deceased from the contractor business. Lastly she contended that interest at the rate of 9% per annum awarded is at higher side, and the same may reasonable be reduced to 7% per annum. 10. On the other hand, the learned counsel for the respondents- claimants submits that the appellant-insurance company did not adduce any evidence as is evident from the impugned order itself as to the age, income, and avocation of the deceased. That the Tribunal by taking into consideration the relevant documents-Exs.A.8, A9,A.13 and A.14 fairly concluded in fixing the monthly earnings of the deceased at Rs.3,000/-per month from agriculture. The learned counsel further submits that during his life time, the deceased had his own way or mode of carrying on the agricultural operations in order to raise the yield from crop to crop. Of course, after the death of the deceased, his wife might be giving the said lands to others on lease, however, mode and method of carrying on agriculture is different and may not yield the result as was done by the deceased. Moreover, the wife of the deceased is also entitled to supervisory charges since she has to engage some persons to look after or to take care of the lands while they are in possession of the tenants. Therefore, he submits that by no stretch of imagination it could be said that the monthly income of the deceased as fixed by the Tribunal at Rs.3,000/- is excess. The learned counsel took exception to the contentions raised on behalf of the appellant-insurance company that the deceased while doing Class II Contract work could not have carried on agricultural operations. He submits that it is not impossible and agriculture was his primary avocation and so also the contract business. If one is in the business of contract work, there is no prohibition that he could not carry on the agriculture at the same time since it is evident from Exs.A.6, 8, 9, 13, 14. That he was dealing with both the fields, agriculture as well as contract. He submits that the Tribunal having regard to the facts of the case and with reference to the oral and documentary evidence on record, fixed the monthly income of the deceased as Rs.3,000/- from agriculture and Rs.4,500/- from contract business. He further submits that it is also evident from Ex.A.11 that the deceased was income tax assessee. In view of filing of the cross objections, the learned counsel submits that though the Tribunal dismissed the claim petition of the sons i.e. claimants 2 to 4, they are also entitled to clam compensation for loss of love and affection and other things for the death of their father in the accident. Moreover, he submits that the deductions made from the monthly earnings of the deceased are not in consonance with the decision reported in Sarla Verma & others v. Delhi Transport Corporation and another[1] a n d since the claimants are 4 in number, 1/4th ought to have been deducted from the monthly earnings of the deceased. So far as the multiplier as adopted by the Tribunal is concerned, the learned counsel submits that the Tribunal by following the II Schedule of the Motor Vehicles Act ought to have adopted multiplier “8” instead of “5” for person aged between 55 and 60 years. Had this been done, he submits that the loss of dependency would have gone up from Rs.3,00,000/- to Rs.4,80,000/-. That as per the aforesaid decision in Sarla Verma & others v. Delhi Transport Corporation and another (supra) the appropriate multiplier for a person aged between 55 to 60 is “9”. If the same is adopted, the loss of dependency comes to Rs.5,40,000/- and consequently the total compensation would go up and lastly he submits that in any case, the court has power under the Act to enhance the compensation as awarded by the Tribunal even if it exceeds the claim of the claimants. So far as the consortium of Rs.10,000/- granted in favour of the wife of the deceased and the interest awarded at the rate of 9% per annum by the Tribunal are concerned, the learned counsel submits that having considered the facts and circumstances of the case, the Tribunal has fixed and awarded the said amount towards loss of consortium and also towards the rate of interest and same are not liable to be interfered with. Lastly he also submits that in view of the cross- objections being filed by the claimants, the compensation may be enhanced appropriately. 11. PW.1, who is wife of the deceased, deposed that her husband died because of injuries due to the rash and negligent driving on the part of the driver of the lorry bearing No.AEE 5459. Her evidence is corroborated by Exs.A.1, A.2, A.3, A.5 and A.7. So far as fixing of agriculture income of the deceased is concerned, Exs.A.8, A.9, A.11, A.12, A.13 and A.14 would go to show that he possessed certain agriculture land and was doing agriculture operations. The Tribunal considering the material on record and the facts and circumstances of the case, fixed his agriculture income as Rs.3,000/-per month, and after deducting 1/3rd therefrom towards personal expenses of the deceased, the monthly income from agriculture was taken as Rs.2,000/-per month which is just and reasonable. So far as the contention of the insurance company that after the death of the deceased, the lands must have been given to the tenants on lease and as such there is no loss of income from agriculture is concerned, it is to be seen that the deceased himself was carrying on the agriculture operations by his own mode and method in order to raise the yield from crop to crop. After his death, even if the lands were given on lease to the tenants, the same income will not fetch as the mode and method of cultivation by the tenants is different. As far as the income from contract business is concerned, the Tribunal basing on Ex.A.11-form No.16-A certificate of income tax deduction, came to the conclusion that the income of the deceased was Rs.4,500/-per month from contract business since Ex.A.11 is of the year 1995-96 which was the preceding year to the date of the death of the deceased in the accident i.e. 2.6.1996. 12. In the circumstances, this court is of the view that the impugned order does not suffer from any infirmity warranting interference from this court and the C.M.A. is liable to be dismissed. Having regard to the facts and circumstances of the case, the cross objections filed by the claimants and contentions to that effect cannot be accepted and the same are liable to be dismissed. 13. In the result, the C.M.A. filed by the insurance company and the cross objections filed by the claimants are dismissed. ​ ​_______________ B.N.RAO NALLA,J 09 -09-2010 Stp [1] 2009 ACJ 1298