HON'BLE SRI JUSTICE B.N .RAO NALLA M.A.C.M.A. No. 441 of 2005 DATED:02.12.2010 Between: 1. Yalal Laxmamma 2. Yalal Jaipal Reddy 3. Yalal Vijaya Bhaskar Reddy …APPELLANTs/ Claimants A N D 1. Mohd. Kaleem 2. M/s.New India Assurance Com. Ltd. .. RESPONDENTS JUDGMENT: This Motor Accidents Civil Miscellaneous Appeal is directed against the order, dated 03.11.2004 made in O.P. No. 1017 of 2002 whereby the learned VI Additional District & Sessions Judge, Fast Track Court, Vikarabad, while allowing the petition in part granted compensation of Rs.1,64,000/- to the claimants together with interest at 9% p.a. from the date of the petition till the date of realization against their claim of Rs.2,00,000/-. For the sake of convenience, the parties will be referred to as they are arrayed in O.P. No. 1017 of 2002. The facts of the case in brief are that on 30.10.2002, at 07.45 P.M., the deceased – Y. Venkat Reddy was proceeding on Scooter bearing No. AP28 F 4461 and when he reached near Mission Hospital, Moinabad village, the driver of one Matador Van bearing No. AP9U 5957 while he was proceeding towards Chevella from Hyderabad, drove his vehicle in a rash and negligent manner and dashed against the Scooter in opposite direction, as a result, Venkata Reddy received bleeding injuries and died on the way to hospital. Hence, the claimants, who are the only legal heirs of the deceased, filed the claim petition in O.P. No. 1017 of 2002 seeking compensation of Rs.2,00,000/-. The 2nd respondent-Insurance Company filed counter before the Tribunal inter alia denying all the material allegations and stated that it is not liable to pay any compensation as the risk is covered under the insurance policy, and seeks protection under Section 149 of the Motor Vehicles Act. Based on the pleadings, the Tribunal framed the following issues in O.P. No.1017 of 2002: 1) Whether the accident occurred is on account of rash and negligent attitude on the part of the driver of the Metador Van bearing No. AP9U 5957? 2) Whether the petitioners are entitled to compensation, if so, to what amount and from which respondent? 3) To what relief? To substantiate the claim, the 1st claimant, who is the wife of the deceased, got herself examined as PW1 and others as PWs.2 and 3 and got marked Exs.A1 to A10. Nobody was examined except the marking of Ex.B1 – copy of insurance policy of the vehicle bearing No. AP9U 5957, on behalf of the respondents. The Tribunal, after considering the evidence both oral and documentary, allowed the petition in part as stated supra. The learned counsel for the claimants has contended that the Tribunal erred in fixing monthly income of the deceased at Rs.1000/- and excluded 1/3rd therefrom. He further contends that as per the evidence of PW1, who is none other than the wife of the deceased, the deceased was earning Rs.40,000/- to Rs.50,000/- per annum from agriculture as well as contract works. As per Ex.A8 – Pahanis, the deceased owned Ac.9.61 cents of agricultural land. Hence, it is contended that the Tribunal was not justified in fixing the monthly contribution of the deceased towards maintenance of his family to the extent of Rs.1000/- per month. On the other hand, the learned Standing Counsel for the 2nd respondent-New India Assurance Company Ltd. has contended that though the deceased is stated to be the owner of Ac.09.61 cents of agricultural land under Ex.A8 – pahanis, the land remains in possession of the family members of the deceased including his wife - PW1. He further contends that PW1 would be in the supervisory capacity to manage the said property, as such, there won’t be much difference in loss of income from agriculture. Therefore, the Tribunal is justified in fixing monthly contribution of the deceased to his family at Rs.1000/- purely based on Ex.A8 – pahanis as there was no supporting evidence. Heard the learned counsel for both the parties and perused the material on record. The deceased was aged 48½ years at the time of his death in the accident and the same is evident from Ex.A7 – driving licence, however as per Ex.A6 – post mortem report, the deceased was aged 50 years. As per the decision reported in Sarla Varma Vs. Delhi Transport Corporation[1] and also as per II Schedule of the Motor Vehicles Act, 1988, the appropriate multiplier for a person aged between 45 to 50 is “13”. PW1 denied a suggestion that they have not filed any documents to show that the 1st claimant’s husband, the deceased, was earning Rs.3,000/- per month and the same was not contradicted by the respondents by supporting evidence. Further, Ex.A8 – certified copy of pahani pathrika for the year 2001-2002 filed by the claimants shows that the deceased Y. Venkat Reddy owns Ac.9.61 cents of agricultural land and such land owned and possessed by the deceased still remains with the claimants as his legal heirs, and they may be required to engage persons to look after the agriculture. In order to corroborate this piece of evidence, the learned counsel for the claimants has relied upon a decision of the Supreme Court reported in State of Haryana and Another Vs. Jasbir Kaur and Others[2] wherein it is held that in the case of death of an agriculturist, if the property remains with family members as his legal heirs, a minimum amount of Rs.3000/- per month may be fixed towards supervisory charges. The relevant portion of the judgment is extracted hereunder: “It is clear on a bare reading of the Tribunal’s decision as affirmed by the High Court that no material was placed before the former to prove as to what was the income. As rightly contended by the learned counsel for the appellants, there was not even any material adduced to show the type of land which the deceased possessed. The matter can be approached from a different angle. The land possessed by the deceased still remains with the claimants as his legal heirs. There is, however, a possibility that the claimants may be required to engage persons to look after the agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered. Furthermore, there was no material before the Tribunal to arrive at the figure of Rs.4,500/- per month. No reason has been indicated to arrive at this figure. In the light of what has been discussed above about “just compensation”, the income cannot be estimated without any material to justify the estimation. In the normal course, we would have remitted the matter back to the Tribunal for fresh consideration. But considering the fact that one young person lost his life, and the matter was pending before the Tribunal and High Court for some years, we feel it appropriate to take all relevant factors into consideration, and decide the matter. Gauging the relevant aspects, noted above, the monthly income is fixed at Rs.3000/- per month and after deducting Rs.1000/- for personal expenses, financial contribution so far as the claimants are concerned, is fixed at Rs.2000/- per month.” From the above observation, it is clear that in cases were the property / land possessed by the deceased still remains with the claimants as his legal heirs there is every possibility that the claimants may be required to engage persons to look after the agriculture and attendant circumstances have to be considered. Even though these two aspects of the matter are similar to the facts of the case on hand, the other factual aspects of the case are different. Therefore, in view of the settled legal position, and having regard to the peculiar facts and circumstances of the case on hand, the monthly earnings of the deceased from the source of agricultural is taken at Rs.2000/- per month. After deducting 1/3rd of it, i.e. Rs.666/- towards personal expenses, the financial contribution so far as claimants are concerned arrives at Rs.1,332/- p.m. Worked out on the basis of multiplier of 13, the amount of compensation comes to Rs.2,07,792/- (i.e. Rs.1,332/- x 12 = Rs.15,984/- p.a. x 13). It is to be noticed that may be, through oversight, the Tribunal appears to have committed a mistake in calculating and awarding the compensation amount of Rs.1,44,000/-, instead of Rs.1,04,000/-, therefore, the same is hereby rectified. Hence, a total compensation of Rs.2,07,792/- under all heads is granted to the claimants even though Rs.7,792/- is exceeding to the original claim made by the claimants before the Tribunal. However, the rate of interest awarded by the Tribunal at 9% p.a. is liable to be reduced and the same is hereby reduced to 7.5% p.a. on the enhanced amount in view of the decision rendered by the Hon’ble Supreme Court and other decisions in this regard. With the above modification of the impugned order dated 03.11.2004, the appeal is allowed. No order as to costs. _________________ B.N. RAO NALLA, J 2nd December, 2010 bcj [1] (2009) 6 SCC 121 [2] (2003) 7 SCC 484