IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.M.A.No.1949 & 4386 OF 2003 DATE:23.11.2010 C.M.A.No.1949 of 2003 Between: Kothapally Vasantha …… Appellant And M/s.Varan Transport Co., represented by Prameel Tanwar and another …..Respondents C.M.A.No.4386 of 2003 Between: The United India Insurance Company Limited …… Appellant And Kothapally Vasantha and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.M.A.No.1949 & 4386 OF 2003 COMMON JUDGMENT: C.M.A. No.1949 of 2003 is filed by the claimant who is wife of the deceased Saibaba, whereas C.M.A. No.4386 of 2003 is filed by the insurance company questioning award dated 21.10.2002 passed by the Motor Accident Claims Tribunal-cum-District Judge, Nizamabad in O.P. No.443 of 1999 awarding compensation of Rs.4,80,500/- to the claimant from owner of the accident vehicle and its insurance company. 2) Factum of accident is not in dispute. Finding relating to rash and negligent driving of the accident vehicle bearing No.AP 9 U 1341 by its driver, is not in dispute in these appeals. The dispute in these appeals is only with regard to quantum of compensation awarded by the lower Tribunal. The deceased was aged 38 years as per Ex.A-4 post mortem examination report and Ex.A-3 inquest report. Even though the claimant as P.W-1 claims that her husband was aged 32 years, she could not substantiate it by any documentary proof. The lower Tribunal rightly took age of the deceased as 38 years. The deceased was doing business. Ex.A-8 copy of partnership is filed to show that he was partner in M/s.Gayatri Traders, Nizamabad. Ex.A-7 copy of renewal licence is filed to show that the said business firm was doing business within the Agricultural Market Committee, Nizamabad as licencee. The claimant did not file any proof by way of documents to show that her husband was earning Rs.15,000/- per month as claimed by her in her evidence. Simply because a person is doing business, one cannot jump to the conclusion that he was getting huge income. Businesses may fetch profit or loss. Without proof of income by way of any documents or accounts, P.W-1’s evidence that her husband was earning Rs.15,000/- per month cannot be taken for granted. In the absence of any proof or evidence, some notional exercise has to be made to fix up his income. By making the said exercise and taking into consideration age of the deceased and his avocation, the lower Tribunal arrived at notional income of the deceased as Rs.3,500/- per month or Rs.42,000/- per annum. It is not as if the deceased was an income tax assessee. The lower Tribunal selected 16 as multiplier for the age of 38 years and fixed total pecuniary compensation at Rs.4,48,000/-, after deducting 1/3 of income of the deceased towards his personal expenses. The lower Tribunal further awarded Rs.15,000/- towards loss of estate Rs.2,500/- towards funereal expenses and Rs.15,000/- towards loss of consortium. 3) Even though the insurance company preferred appeal questioning the quantum, it could not show that it obtained required permission under Section 170 of the Motor Vehicles Act. In the absence of such permission, the appeal filed by the insurance company is not maintainable on the question of quantum. There is no plea of any violations of policy conditions. There is no dispute about the accident vehicle being insured by the insurance company as per Exs.A-6 and B-1. Even though the insurance company contended that multiplier in Schedule-II of the Act cannot be adopted in case of income exceeding Rs.40,000/-, in view of Sarla Verma V. Delhi Transport Corporation[1], the said contention cannot be allowed to be urged by the insurance company. In any event, since the appeal filed by the insurance company is incompetent and not maintainable, I do not propose to disturb quantum of compensation awarded by the lower Tribunal. 4) In the result, both the appeals are dismissed. No costs. _______________________________ SAMUDRALA GOVINDARAJULU, J November 23, 2010 ksh [1] 2009(3) ALD 83 (SC)