IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRTIETH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1441 OF 2002 Between: Kotapuri Venamma & 2 others ..... Appellants AND Mohammad Hussain & another ..... Respondents The Court made the following: THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1441 OF 2002 JUDGMENT: This appeal is directed against the award in M.V.O.P.No.107 of 1988 on the file of the Motor Accidents Claims Tribunal cum II Additional District Judge, Guntur, dated 04.04.1989. 2. The factual background for the appeal is that Kotapuri Venkaiah, aged about 40 years, was separating chillies and seeds in the new Mirchi yard, Guntur, on 21.03.1988, at about 4.00 a.m., when the driver of the lorry CJW 7475, owned by the first respondent and insured with the second respondent, reversed the lorry rashly and negligently hitting Kotapuri Venkaiah resulting in his death. The wife and two sons of Kotapuri Venkaiah sought for a compensation of Rs.1,00,000/- from the owner and insurer of the lorry claiming that the hale and healthy deceased was earning more than Rs.1,500/- per month as a labourer and also by collecting seeds of chillies from the yard and selling them. 3. While the owner of the lorry remained ex parte, the insurer put the claimants to strict proof of all their allegations and claimed the claim to be exaggerated. The valid driving licence of the driver of the lorry has to be proved and interest cannot be claimed at 12% per annum. 4. The Tribunal framed issues on the responsibility for the accident and the entitlement of the claimants to compensation. During enquiry, it examined P.Ws.1 and 2 and marked Exs.A1 to A4. No evidence was adduced on behalf of the second respondent. 5. The Tribunal rendered the impugned award, firstly accepting the evidence of P.W.1 corroborated by Exs.A1 to A4 about the cause for the accident being rash and negligent driving of the lorry, more so, in the absence of any contrary evidence for the second respondent. 6. The Tribunal, while assessing the compensation, considered that the wife and children cannot be considered as solely dependent on the deceased and they also must have been coolies at the relevant time. The Tribunal relying on 1988 (1) ALT 337 considered the claimants to be entitled to Rs.15,000/- towards non-pecuniary damages and the first claimant-wife to be entitled to Rs.5,000/- towards loss of consortium. Rejecting the contentions of the claimants about the income of the deceased, the Tribunal opined that the market yard people may allow collection of chillies worth Rs.3/- or 4/- only per day and consequently, assessed the income of the deceased at Rs.100/- per month or Rs.1,200/- per annum and deducting 1/3rd out of the said estimated income towards the personal expenses of the deceased, arrived at total loss of future earnings at Rs.24,000/- applying a multiplier of ‘30’ considering the balance of lifespan of the deceased, but for the intervention of the accident, to be 30 years. 7. The claimants approached this Court with this appeal contending that the Tribunal went wrong in fixing the income of the deceased only at Rs.100/- per month and could have granted the entire compensation claimed on the evidence produced by the claimants. 8. Heard Sri M.Vijay Kumar, learned counsel for the appellants and Smt. I. Maamu Vani, learned standing counsel for the second respondent. 9. While the appeal stood dismissed for default against the first respondent vide the order of this Court dated 28.02.2002, neither respondent has preferred any appeal or cross objections against the award in question. 10. The conclusions of the Tribunal on the responsibility of the lorry driver for the accident and the joint and several liability of the owner and insurer of the lorry to justly and adequately compensate the claimants have become final. 11. Therefore, the only question left for consideration in this appeal is the reasonable compensation to be awarded. 12. Insofar as the non-pecuniary damages granted at Rs.15,000/- by the Tribunal are concerned, the Tribunal followed a binding precedent from this Court rendered at about the relevant time and the quantum of the same need not be varied. However, the wife was granted only Rs.5,000/- towards loss of consortium and taking into account that by the time of the death of the deceased aged 40 years, she was only aged 39 years, some reasonable enhancement of the said amount can be considered, which can be assessed at Rs.3,000/- in which of course, an element of guess and estimate are inevitable. Coming to the loss of dependency or loss of future income of the deceased for the wife and two sons, the Tribunal assessed the same at Rs.3/- or Rs.4/- per day or Rs.100/- per month without assigning any reasons for such a grossly low estimate. The wife as P.W.2 and an independent witness as P.W.1 stated on oath before the Tribunal that the deceased was getting Rs.100/- per day during seasons and Rs.60/- or Rs.50/- per day during off seasons by selling chillies and chilly seeds collected in the market yard. The cross-examination of P.Ws.1 and 2 claiming the said claim to be exaggerated was not shown to be based on any dependable evidence and the suggestion to P.W.1 was that such income could not have been more than Rs.5/- per day. When the insurer itself suggested the income to be Rs.5/- per day, how the Tribunal further reduced it to Rs.3/- or Rs.4/- per day is not intelligible and P.W.1 is not shown to be in any way so interested in the claimants as to resort to falsehood. The deceased having to maintain his wife and two sons would have undoubtedly engaged himself in some gainful employment and even in 1988, would not have been able to maintain them with Rs.2/- or Rs.3/- per day. Assuming that the presumption of the Tribunal that the wife and two sons also would have been working as coolies is in tune with the ordinary and natural course of human events, still balancing the probability of exaggeration in the claims of the claimants and the minimum income, which the deceased would have earned, even if he were a labourer, on the minimum wages in force at that time, it can be safely estimated that he would have been earning not less than Rs.10/- per day, which also maybe an underestimate. However, in the absence of any definite evidence, such estimate becomes inevitable and if the deceased were considered to be earning Rs.10/- per day or Rs.300/- per month and 1/3rd out of such income were to be deducted towards his personal expenses, the annual loss of income would be Rs.2,700/-. Though the Tribunal applied a multiplier of 30 with reference to the average life span of 70 years and though the multiplier as per BHAGAWAN DAS VS. MOHD. ARIF[1] would have been much less, in the light of the latest pronouncement by the Apex Court in SARLA VERMA & OTHERS VS. DELHI TRANSPORT CORPORATION[2], 15 can be taken as the appropriate multiplier with reference to the deceased’s age 40 years. If so, the compensation to the claimants under that head would have been Rs.36,000/-. 13. Taking an overall view, on the basis of the beneficial provisions of the Motor Vehicles Act, 1988, will thus show the claimants to be entitled to a further sum of Rs.15,000/- towards compensation. Taking the length of time for which interest has to be paid on the said compensation into account, the same can be confined to 6% per annum while proportionate costs also shall follow suit. The compensation has to be shared between the claimants more or less in the same proportion in which it was directed to be shared by the impugned award. 14. Accordingly, the award dated 04.04.1989 in M.V.O.P.No.107 of 1988, on the file of the Motor Accidents Claims Tribunal cum II Additional District Judge, Guntur, is modified by granting a further compensation of Rs.15,000/- payable with interest at 6% per annum thereon from the date of the petition till the date of realization with proportionate costs thereon, in addition to the compensation already awarded by the impugned award and out of the enhanced compensation, the first claimant shall be entitled to Rs.10,000/- and the claimants 2 and 3 shall be entitled to Rs.2,500/- each along with proportionate interest and costs. 15. The Civil Miscellaneous Appeal is allowed, accordingly, in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 30th September, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1441 OF 2002 September 30, 2010. KL [1] 1987 (2) ALT 137 [2] 2009 ACJ 1298