HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A.No. 177 of 2008 And M.A.C.M.A.No. 114 of 2008 COMMON ORDER: These two appeals are filed by the claimants and the Insurance Company respectively questioning the award dated 13.4.2007 passed by the V Additional Metropolitan Sessions Judge–cum-XIX Additional Chief Judge-cum-Motor Accidents Claims Tribunal, Hyderabad, in OP No. 985 of 2006 by which compensation was awarded at Rs.4,63,000/- as against the claim of Rs.12,00,000/- for death of the deceased-M.Bhasker Rao aged 40 years in a motor accident, which occurred on the intervening night of 31.1.2006/1.2.2006 at Nagole cross Roads. 2. There is no dispute about factum of accident in which the deceased, who was a pillion rider of motor cycle died. It is alleged that car bearing No. AP 9AZ 7720 was driven by its driver in rash and negligent manner and dashed the motor cycle resulting in the death of the deceased. The lower Tribunal found that since it is a case of collision between two vehicles, negligence has to be apportioned in between the two vehicles and accordingly apportioned the same at 50% each. 3. Before the lower Tribunal driver/rider of the motor cycle was examined as PW-2. He is the appropriate witness to speak to the manner of accident. There is no contra evidence on behalf of either the insured or the insurer of the car. Driver of the car was not examined. Ex.A1-copy of FIR and Ex.A4-copy of charge sheet show that criminal case was booked for rashness and negligence on the part of the car driver. The lower Tribunal referred to Ex.A5-copy of scene observation report and Ex.A6- copy of Motor Vehicle Inspector’s report and came to a conclusion that the car was driven in rash and negligent manner and that the car driver alone was responsible for the accident and not PW-2, who was driving the motor cycle at that point of time. The lower Tribunal further observed that the motor cyclist also did not keep proper look out of the car coming from right side of the road at the cross roads. For this observation of the lower Tribunal, there is no basis in the evidence on record. PW-2 denied the said suggestion in his cross-examination. This observation of the lower Tribunal is based on surmises and conjunctures but not on any material on record. Therefore, I have no hesitation to find that the car driver alone was responsible for the accident and not the motor cycle rider and that the lower Tribunal erred in finding both the vehicle drivers guilty of negligence and in apportioning the negligence at 50% each. 4. The lower Tribunal took average income of the deceased as Rs.8,000/- per month. It is contended by the claimants’ counsel that as per Ex.A7-income tax return of the deceased, he was earning Rs.10,000/- per month as income from his kirana shop and that the said amount should have been taken by the lower Tribunal for calculating compensation payable to the claimants/dependants. Except filing solitary income tax return as Ex.A7, the claimants did not file income tax returns of the deceased for the previous years and subsequent years. The deceased might have got profit in that particular year i.e, 2004-2005 and it is not known whether he got profit or loss in the previous years and in the subsequent years. Therefore, the lower Tribunal is justified in fixing average income of the deceased at Rs.8,000/- per month. 5. The lower Tribunal took multiplier for the age of 40 years of the deceased at 14. It is contended by the claimants’ counsel that as per Sarla Verma (Smt) V. Delhi Transport Corporation[1] of the Supreme Court, the multiplier applicable for the age of 40 years is 15. It is further contended that the lower Tribunal did not award compensation for funeral expenses. It is contended by the insurer’s counsel that the lower Tribunal awarded compensation of Rs.5,000/- each towards love and affection to the claimants 2 to 4 which is not permissible in law. Even though, there are four claimants, who approached the lower Tribunal for compensation, claimants 2 and 3 are major sons and claimant No.4 is mother of the deceased, who is aged 80 years. Therefore, the lower Tribunal rightly deducted 1/3 income of the deceased towards his personal expenses. If 15 is taken as the multiplier, then pecuniary compensation comes to Rs.5333/- x 12 x 15 = 9,59,940/-. 6. It is contended by the insurer’s counsel that as per Sarla Varma (1 supra) income tax payable by the deceased has to be deducted from his income. Taking all these things into account, the lower Tribunal took average income of the deceased at Rs.8,000/- per month only as against the returned income of Rs.10,000/-. Apart from the above pecuniary compensation, the claimants are entitled for Rs.15,000/- towards loss of consortium and Rs.15,000/- towards loss of estate and Rs.2,000/- towards funeral expenses. Thus, total compensation amount comes to Rs.9,91,940/-. M.A.C.M.A : 114 OF 2008: In the result, the appeal is partly allowed altering the compensation amount payable to the claimants from Rs.4,63,000/- to Rs.9,91,940/- with proportionate costs and interest. M.A.C.M.A : 177 of 2008: In the result, the appeal is dismissed. No costs. ____________________________________ SAMUDRALA GOVINDARAJULU, J Dt.16-12-2010 Mjl/* [1] (2009) 6 SCC 121