IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE FOURTEENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.2914 of 2002 Between: Makam Jyothi and 3 others .. Appellants AND A. Brinda and another .. Respondents JUDGMENT: This appeal is directed against the award dated 28-02-2002 in MVOP.No.743 of 1999 arising out of the common award passed in MVOP.Nos.786 of 1999 and 743 of 1999 on the file of Motor Accidents Claims Tribunal-cum-II Additional District Judge’s Court, Kurnool. The factual background for the appeal is that Makam Suryanarayana and Motta Venkatesh, were going on motorcycle No.AP-21-3854 on 16-12-1997 and at about midnight near Ramalingaiah factory near Veldurthi, lorry No.TN-33B-9111, driven rashly and negligently at high speed, first hit a stationed lorry and then hit the motorcycle killing Suryanarayana on the spot. Suryanarayana was an advocate at Dhone with good practice appearing before District Courts, Kurnool also and was maintaining Car No. AP-21-5847 and his joint family had leasehold rights in mining and pulverizing units. Suryanarayana was also owning a lorry No.AP-21-T-0128. Hence, his widow, two minors sons and mother sought for a compensation of Rs.10,00,000/- from the owner and insurer of the offending lorry. While the owner of the lorry remained ex parte before the Tribunal, the insurer contested the claim attributing the rashness and negligence in driving to the motorcyclist and putting the claimants to strict proof of their allegations. The Tribunal framed issues about the responsibility for the accident and the entitlement of the claimants to compensation and during joint enquiry into this claim and MVO.P.No.786 of 1999, the Tribunal examined PWs.1 to 3 and marked Exs.A.1 to A.9, X.1 and B.1 and B.2. The Tribunal rendered the impugned award firstly concluding that the accident occurred due to the rash and negligent driving of the lorry No.TM 33 B 9111 as spoken to by the injured-PW.1 and as specified in Ex.A.1-First Information Report, Ex.A.7-charge sheet and Ex.A.8-inquest report, which were uncontroverted. The Tribunal, while assessing the quantum of compensation to which the dependents of the deceased Suryanarayana are entitled, took the income of the deceased as Rs.3,500/- per month, deducted 1/3rd out of the same towards personal expenses of the deceased and by applying a multiplier of 17 to the age of 33 years of the deceased arrived at a sum of Rs.4,76,000/- as loss of dependency. The Tribunal, while referring to the practice of the deceased as an advocate and his owning a lorry and having a current account in Andhra Bank, Dhone, also awarded Rs.2,000/- towards funeral expenses, Rs.2,500/- towards loss of estate and Rs.5,000/- towards loss of consortium. The total compensation of Rs.4,85,500/- was directed to carry interest at 9% p.a. and directions were given regarding apportionment and disbursement of the compensation. The claimants filed the appeal against the award contending that the various sources of income of the deceased as claimed ought to have been taken into account and the entire claim of Rs.10,00,000/- ought to have been accepted. Kum. N. Niyatha, learned counsel for the appellants and Smt. S.N. Padmini, learned counsel for the 2nd respondent-insurer are heard and the 1st respondent remained unrepresented before this Court also. The findings of the Tribunal about the responsibility for the accident with the offending lorry driver, the ownership of the lorry with the 1st respondent to the claim and its subsisting insurance with the 2nd respondent to the claim being not in dispute, the joint and several liability of both the respondents to justly and adequately compensate the dependents of the deceased cannot be in dispute and the relationship of the claimants with the deceased is also not in question. Therefore, the only question for consideration herein is the quantum of compensation to which the claimants are entitled. The fact that the deceased was an advocate, who owned a lorry, a car and a motorcycle and was thus appearing to be having considerable means and income as disclosed by the evidence on record as noted by the Tribunal cannot be in doubt and if so, the assessment of notional income of the deceased at Rs.3,500/- per month by the Tribunal is patently conservative. Even if the claim of the claimants about the deceased earning Rs.5,000/- per month each as an advocate and from his lorry apart from the income from the other sources like mining and pulverizing units etc., has to be considered as an exaggeration due to the natural tendency to inflate the income to get higher compensation, he would not have been earning anything less than Rs.5,000/- per month. In making such an assessment, an element of guess and estimate are inevitable in the absence of any definite evidence and keeping in view all the facts and circumstances, the income of the deceased can be reasonably assessed at Rs.5,000/- per month. As per Sarla Verma and others v. Delhi Transport Corporation and another[1], when there are 4 to 6 dependents on the deceased, the amount to be deducted towards probable personal expenses, which the deceased would have incurred had he been alive, should be only 1/4th. If so, on an annual assessed income of Rs.60,000/-, the loss of dependency can be calculated at Rs.45,000/-. The deceased was aged 33 years as per Post Mortem report and other documents on record and the appropriate multiplier as per Sarla Verma and others v. Delhi Transport Corporation and another (stated supra) is 16. If so, the claimants would have been entitled to Rs.7,20,000/- towards loss of dependency. As assessed in the above decision, the claimants will also be entitled to Rs.5,000/- each towards loss of estate and funeral expenses and Rs.10,000/- towards loss of consortium making the total compensation payable Rs.7,40,000/- and the claimants are, therefore, entitled to enhancement to that extent from the original compensation granted by the impugned award at Rs.4,85,500/-. While the interest awarded at 9% p.a. on the original compensation awarded needs no interference at this distance of time in the absence of any indication about the same being in deviation of any prevailing rate of interest at the relevant time, keeping in view the fact that the insurer also is a custodian of public funds and the period for which the interest has to be paid on the enhanced compensation, it can be confined to 6% p.a. In the result, the award dated 28-02-2002 in MVOP.No.743 of 1999 on the file of Motor Accidents Claims Tribunal-cum-II Additional District Judge, Kurnool is modified by awarding a compensation of Rs.7,40,000/- with interest thereon from the date of petition till realization at 9% p.a. on Rs.4,85,500/- and at 6% p.a. on the rest of the compensation. The compensation shall be apportioned between the claimants in the same proportion in which the original compensation was directed to be apportioned by the Tribunal and no further directions need be given concerning the disbursement of the compensation at this distance of time. The appeal is allowed accordingly in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 14-09-2011 Ksn [1] 2009 ACJ 1298