HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE RAJA ELANGO M.A.C.M.A.Nos.947 AND 1748 OF 2005 Between: Ramineni Anuradh and others … Petitioners and Andhra Pradesh State Road Transport Coirporation, rep. By its General Manager. … Respondent This court made the following: HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE RAJA ELANGO M.A.C.M.A.Nos.947 AND 1748 OF 2005 COMMON ORDER :- (per AGR, J) These two appeals by the claimants and the Andhra Pradesh State Road Transport Corporation (APSRTC), which are directed against the very same order passed by the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Guntur in M.V.O.P.No.303 of 2000, dated 06.07.2004, seeking further enhancement of the compensation and questioning the quantum of compensation respectively, were heard together and disposed of by this common order. 2. For better appreciation of the facts, the parties herein will be referred to, as they are arrayed before the Tribunal. 3. The facts, which are not in dispute, are briefly stated as under: - Wife, mother and minor children of Amar Kishore, (hereinafter referred to as, “deceased”) filed the O.P., seeking compensation for the death of the deceased caused in an accident, which occurred on 09.08.1999 at about 09:30 AM, involving the bus bearing No.AEZ 9992 belongs to the A.P.S.R.T.C. near Bonadurpur crossing at Paramareddy hills. According to the claimant on the fateful day, when the deceased was proceeding on his Yamaha Motor Cycle bearing No.AP 22 6336, the bus belonging to the R.T.C. bearing No.AEZ 9992 driven by its driver came in a rash and negligent manner dashed the motor cycle resulting in the instantaneous death of the deceased. At the time of the accident, the deceased was aged 35 years and was dealing with the business in seafoods. He was also operating the bus bearing No.AP 22T 9000 and managing the affairs of another bus bearing No.AP 22T 2333, which is in the name of his wife/1st petitioner. Both the said buses were hired by A.P.S.R.T.C. and the deceased used to earn Rs.15,000/- per month. Due to the untimely death of the deceased, the petitioners were deprived of their breadwinner. Hence, they claimed compensation at Rs.20,00,000/-. 4. Respondents denied the averments made in the petition by filing a counter affidavit and contended that the driver of the R.T.C.Bus drove the bus in a normal speed and while taking turn, the deceased came in a rash and negligent manner and dashed the R.T.C.Bus on its rare side right portion. The deceased also drove the motor cycle without anticipating the bus taking right turn towards Chintalmet. The accident was due to rash and negligent driving of the deceased. The amount claimed by the petitioners is also excessive. 5. Basing on the above pleadings, the Tribunal framed the following issues for trial: 1. Whether the accident occurred due to the rash and negligence of the driver of the APSRTC bus No.AEZ 4992 by its driver or the Yamaha Motor Cycle No.AP 22 6336 driven by the deceased himself? 2. Whether the petitioners are entitled for compensation and if so, to what amount, from whom? 3. To what relief? 6. On behalf of the petitioners, P.Ws.1 to 3 were examined and Exs.A1 to A8 were marked. On behalf of the respondents, R.W.1 was examined and Exs.B1 to B8 were marked. 7. The Tribunal on consideration of the oral and documentary evidence on issue No.1 held that the driver of the R.T.C.Bus, drove the vehicle in high speed, without blowing any horn, in a rash and negligent manner and hit the deceased and that there is no evidence adduced by the Corporation to show that the deceased was negligent in driving and dashed the R.T.C.Bus as claimed by the respondents. On issue No.3, the Tribunal after taking into consideration Ex.A6-copy of the agreement entered between the deceased and the A.P.S.R.T.C. along with connected accounts; Ex.A8-income tax return receipt pertaining to the year 1998-99, which shows that the deceased used to earn a sum of Rs.60,000/- per annum by hiring buses and is also supported by the evidence of P.W.3, who used to look after the accounts of the deceased; the evidence of R.W.1 corroborated with Exs.B1 to B8-agreements and the admissions of P.W.1 in the evidence that even after the death of the deceased the buses have been hired with R.T.C., and there is no loss of income on hiring the buses; fixed the compensation at Rs.60,000/- per annum. After applying the multiplier 16, as the deceased was aged about 35 years, after deducting 1/3rd towards the expenditure of the deceased, the Tribunal arrived the loss of income computed by the deceased to his family at Rs.6,40,000/-, apart from awarding Rs.25,000/- towards consortium; Rs.15,000/- towards loss of estate; Rs.2,000/- towards funeral expenses and Rs.2,000/- towards transportation of the dead body. In all, the Tribunal awarded Rs.6,84,000/-. 8. Dissatisfied with the quantum of compensation, the petitioners filed M.A.C.M.A.No.947 of 2005 and questioning the quantum of compensation, A.P.S.R.T.C. filed M.A.C.M.A. No. 1748 OF 2005. 9. Learned counsel for the petitioners contended that the accident took place due to the rash and negligent driving of the driver of the R.T.C.Bus; that the compensation awarded by the Tribunal is not in accordance with the evidence available on record; that the Tribunal has not taken into consideration the possibility of increase of income in future; that as the deceased was aged 35 years at the time of accident, 50% of the actual income as per the income tax returns under Ex.A8, can be reasonably taken towards future prospectus and the same should have been added in the light of the observations made by the Hon’ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation[1]; that further the Tribunal below erred in deducting 1/3rd of the income towards personal expenditure of the deceased; that since there are four claimants, the Tribunal ought to have deducted 1/4th as observed by the Hon’ble Supreme Court in Sarla Verma’s case (supra). 10. Per contra, learned counsel for the respondent-Corporation contended that even after the death of the deceased, the bus was hired with R.T.C., which is evident from Exs.B1 to B8 and as admitted by P.W.1 in her evidence; that since there is no loss of income and the family used to get the same income even after the death of the deceased, the Tribunal ought not to have taken the income derived by the deceased as a base point to fix the loss of contribution; that except the supervisory charges as the deceased used to run the business effectively with the A.P.S.R.T.C.; that, therefore, the Tribunal is not justified in fixing the annual income of the deceased at Rs.60,000/- per annum and hence, the same is liable to be reduced. 11. Both the counsel have not disputed the applicability of multiplier ‘16’ by the Tribunal, but they disputed the quantum of income as referred to above. 12. It is now fairly well settled that the assessment of compensation involve certain hypothetical considerations and can never be objective or accurate. The evidence adduced also discloses that the deceased was looking after the transport business by hiring two buses to the A.P.S.R.T.C., out of which one owned by him and another by his wife-petitioner No.1. As per Ex.A8 the deceased used to earn an income of Rs.60,000/- per annum out of the said buses. He has to spend considerable time for maintenance of the buses and to run them properly to the satisfaction of the R.T.C. It is not unreasonable to take Rs.5,000/- per month towards salary for supervising the said buses apart from the business he had. Therefore, the lower court was justified in taking into consideration his contribution to the family at Rs.60,000/- per annum, that to when the deceased was doing transport business and hired two buses to the A.P.S.R.T.C. Admittedly, the deceased owns one bus and his wife owns another bus, which were hired to A.P.S.R.T.C. The deceased used to earn income at Rs.60,000/- per annum, as per Ex.A8. Though P.W.1 stated that the deceased was dealing with Sea Foods business, no evidence has been produced by the petitioners, on whom the burden lies to establish the income earned by the deceased out of the said business. The Hon’ble Supreme Court in Sarla Verma’s case (supra) on question No.1 with regard to the addition to the income to the future proceeds, in para 24 held that where the deceased is of the age group 40-50 years, 30% addition to the salary should be taken; where the deceased had a permanent job and was below 40 years and the annual income is taxable, his actual salary is 30%, 50% in addition to the regular salary should be taken as future proceeds. Where the deceased was self-employed or was on a fixed salary etc., the Courts will usually take the actual income at the time of the death in special circumstances. 13. In the case on hand, the evidence adduced by the parties clearly establishes that the deceased was aged 35 years, but was self- employed, namely, by hiring buses owned by himself and his wife to the R.T.C. and used to get income. Therefore, the actual income at the time of the death of the deceased has to be taken into consideration, but not otherwise. 14. In Sarla Verma’s case (supra), while computing the compensation under question No.4, the entire discussion was with regard to the salaried person, but there was no discussion with regard to the self employed person. A Division Bench of the Calcutta High Court in Sharmila Singh and others v. Robin Ghosh and another[2], calculated the income of the deceased on the basis of the income tax returns of a businessman and after deducting 1/3rd, applied the appropriate multiplier, but no guidelines have been followed, in arriving the income of the businessman, where the family members used to receive the same income even after his death. 15. Taking into consideration that the deceased was owning a motor cycle and also two buses, which were hired to the A.P.S.R.T.C., unless he has other source of income, it is not possible for purchase of two buses whether in the name of himself or his wife. The income of the deceased arrived by the lower court i.e., Rs.60,000/- per annum is not excessive. We, accordingly, approve the finding of the Tribunal that the deceased used to earn Rs.60,000/- per annum. Having regard to the fact that there are four family members depending on the deceased and as per the principles laid down in Sarla Verma’s case (supra), 1/4th has to be deducted towards the personal expenditure, but not 1/3rd as deducted by the Tribunal. Therefore, the net contribution of the deceased to the family members will come to Rs.45,000/- per annum. If the multiplier ‘16’ is applied, the petitioners are entitled to Rs.7,20,000/- towards loss of income. Apart from the same, the petitioners are also entitled to Rs.15,000/- towards loss of Estate, Rs.4,000/- towards funeral expenses and transportation of the dead body, as awarded by the Tribunal. In total, the petitioners are entitled to a sum of Rs.7,39,000/- towards compensation. The interest awarded by the Tribunal at 9% per annum is hereby modified and the petitioners are entitled to interest at 7.5% per annum. 16. With the above observation, the MA.CMAs., are partly allowed. There shall be no order as to costs. ________________ A. GOPAL REDDY, J _____________ RAJA ELANGO, J 29.06.2011 Lmv HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE RAJA ELANGO M.A.C.M.A.Nos.947 AND 1748 OF 2005 Date: - - 2011 [1] (2009) 6 SCC 121 [2] 2010 ACJ 1428