IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SECOND DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.Nos.2134 OF 2009 & 1782 OF 2008 M.A.C.M.A.No.2134 OF 2009 Between:- M/s United India Insurance Company Limited, Rep. by its Branch Manager, Chittor Town, Chittoor District. …Appellant A n d Smt.Chandramma and others …Respondents AND M.A.C.M.A.No. 1782 OF 2008 Between:- Smt.M.Chandramma and others …Appellant A n d S.S.S.Ganeshan and others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.Nos.2134 OF 2009 & 1782 OF 2008 COMMON JUDGMENT: These two appeals are directed against the order dated 03-12-2007 in M.V.O.P.No.270 of 2004, on the file of the Chairman, Motor Accidents Claims Tribunal- cum-District Judge (for short ‘the Tribunal’), Chittoor, wherein the claim of respondents 1 to 7 was allowed-in- part, awarding compensation of Rs.3,92,000/- with interest at 9% per annum from the date of petition. 2. Heard the learned counsel for the appellants and the learned counsel for the respondents in both the appeals. Perused the record. 3. As the two appeals arise out of the same award passed by the tribunal, they are heard together and are being disposed of by this common judgment. 4. The claimants filed M.V.O.P.No.270 of 2004 seeking compensation of Rs.10 lakhs on account of death of the deceased D.Murahari Naidu, who died in a motor vehicle accident that occurred on 15-02-2004. The first claimant is the wife, claimants 2 to 4 are the sons and claimants 5 to 7 are the daughters of the deceased. According to them, on that day, the deceased was proceeding in a jeep bearing No.AP 03A 7207 from Tirumangalam to Kallupatti and at about 04-00 p.m., a lorry bearing No.TN 21 Z 0976, driven in a rash and negligent manner by its driver, dashed against the jeep, as a result of which the deceased sustained multiple injuries, including fracture of head and died. A case in Cr.No.53 of 2004 was registered against the driver of the lorry by Kallupatti Police. It is pleaded that the deceased was aged 60 years and was running a hotel, earning Rs.2 lakhs per annum and he was also having agricultural land of Ac.7-00, earning agricultural income of Rs.1 lakh per annum. 5. The owner of the lorry and the insurer filed separate counters opposing the claim and denying their liability to pay the compensation. 6. On the strength of the pleadings, the tribunal framed the following issues: i. Whether the accident occurred due to the rash and negligent driving of driver of the lorry bearing No.TN 21 Z 0976 or due to rash and negligent driving of the driver of the jeep bearing No.AP 03 A 7207 or both? ii. Whether the petitioners are entitled to any compensation, if so, to what amount and from whom? iii. To what relief? 7. During enquiry, P.Ws.1 to 3 were examined and Exs.A-1 to A-11 were marked on behalf of the claimants. No oral evidence was adduced by the insurer, but Exs.B-1 and B-2 were marked on their behalf. 8. On a consideration of the evidence available on record, the tribunal held that the accident occurred due to the rash and negligent driving of the lorry by its driver. The tribunal further held that the claimants are entitled for a total compensation of Rs.3,92,000/-. Accordingly, an award was passed for the said amount with interest at 9% per annum from the date of petition. Aggrieved by the same, the insurer filed M.A.C.M.A.No.2134 of 2009. Not satisfied with the award, the claimants filed M.A.C.M.A.No.1782 of 2008. 9. The finding of the tribunal that the accident occurred due to the rash and negligent driving of the lorry by its driver, is not seriously disputed. 10. The learned counsel for the appellant-insurer would contend that the tribunal erred in taking the income of the deceased at Rs.1,05,000/- per annum without any basis. The evidence on record would establish that the deceased was running a hotel under the name and style of ‘Sri Saraswathi Café’ on MBT Road, Palamaner town, besides having Ac.7-00 of agricultural land. The claimants filed Ex.A-7 assessment order for the year 2003-04 of Dy.Commercial Tax Officer, showing a turnover of Rs.4,96,618/- on which sales tax was assessed at Rs.39,297/-. The claimants also filed Ex.A-8 income tax returns for 2004-05 showing the income on hotel business as Rs.1,05,000/- and agricultural income as Rs.1,00,000/- . Ex.A-9 is the receipt showing payment of sales tax. Exs.A-10 and A-11 are the pattadar passbooks showing that the deceased was having agricultural land partly in his name and partly in the name of his son. The tribunal has rightly eschewed Ex.A-7 from consideration as the amount stated therein only represents the turnover, but not the income. However, the income tax returns Ex.A-8 for the relevant year 2004-05 discloses that the deceased was having income of Rs.1,05,000/-. After deducting one- third therein, the tribunal estimated the contribution of the deceased to the family from the income of the hotel at Rs.70,000/-. As the land of Ac.7-00 remained intact and the cultivation is being continued by the sons of the deceased, the tribunal has not rightly taken any agricultural income into consideration, while estimating the loss of dependency. 11. The deceased was aged 60 years. The tribunal applied the multiplier ‘5’ as per the II Schedule. As rightly contended by the learned counsel for the claimants, who are appellants in M.A.C.M.A.No.1782 of 2008, the provisions of II Schedule cannot be made applicable, as the income of the deceased was exceeding Rs.40,000/-. As per the recent decision of the Apex Court in SARLA VERMA & OTHERS V. DEHLI TRANSPORT CORPORATION[1], the suitable multiplier for the person aged 60 years would be ‘9’. Admittedly, the three daughters of the deceased are married and residing with their respective families and the three sons are all majors aged 36, 32 and 30 years and pursuing their avocation. Hence, the daughters and sons of the deceased cannot be held to be dependant on the income of the deceased. Therefore, it is considered that in view of the decision of the Apex Court in Sarla Verma’s case (supra), fifty per cent of the income of the deceased can be taken as contribution to the family. Applying the multiplier ‘9’, the loss of dependency works out to Rs.4,50,000/-. The first claimant is held entitled for a sum of Rs.10,000/- towards loss of consortium and the claimants are also entitled for a sum of Rs.5,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. The claimants are, therefore, held entitled for a total compensation of Rs.4,70,000/- with interest at 7.5% per annum on the enhanced amount from the date of filing of the appeal. The impugned award is modified accordingly. 12. In the result, M.A.C.M.A.No.2134 of 2009 filed by the appellant-insurer is dismissed and M.A.C.M.A.No.1782 of 2008 filed by the claimants is allowed as stated above. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 02nd September, 2010 Lrkm [1] 2009(3) ALD 83 (SC)