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2006 DIGILAW 1509 (AP)

Munagapati Veeranjaneyulu v. Bathula Laxma Reddy

2006-11-30

C.Y.SOMAYAJULU

body2006
JUDGMENT :-Appellants, who are parents and brother of M. Nagaraju (the deceased), who died in an accident caused due to the rash and negligent driving of the drivers belonging to respondents 1 and 3, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (the Act) seeking compensation of RsA,50,000/- from the respondents, who are owners of the vehicles involved in the accident and their insurers, alleging that the deceased who was aged about 20 years was earning Rs.5,000/per month at the time of his death in the accident. 2. Respondents 1, 3 and 4 chose to remain ex parte. Second respondent filed its counter putting the appellants to proof of the averments in the petition. In support of the case of the appellants, they examined the 1st appellant as P.W.1 and another witness as P.W.2 and marked Exs.A.1 to A.9. No evidence either oral or documentary was adduced on behalf of the 2nd respondent. 3. The Tribunal held that the accident occurred due to the rash and negligent driving of the drivers of the vehicles involved in the accident and awarded Rs.1,07,000/- as compensation to the appellants. Dissatisfied with the compensation awarded to them, the claimants are before this Court. 4. Since this is an appeal by the claimants seeking higher compensation than that is awarded by the Tribunal and since the owners of the vehicles chose to remain ex parte in the trial Court and did not prefer any appeal questioning the finding of the Tribunal on the rash and negligent driving of the drivers of the vehicles, the only point for consideration is to what compensation are the appellants entitled to. 5. The contention of the learned Counsel for the appellants is that in view of the voluminous documents adduced by the appellants to show that the deceased was a businessman and was earning more than Rs.35,000/- per month, the Tribunal was in error in fixing meager amount of Rs.1,07,000/as compensation that too without taking into consideration the multiplier fixed in Schedule-II of the Motor Vehicles Act. It is also his contention that the Tribunal was in error in fixing the age of the mother of the respondent at 45 years without any basis and so, the appellants are entitled to the compensation sought. 6. It is also his contention that the Tribunal was in error in fixing the age of the mother of the respondent at 45 years without any basis and so, the appellants are entitled to the compensation sought. 6. The contention of the learned Counsel for the second respondent is that since the Tribunal gave cogent reasons for its conclusion that the appellants are entitled to Rs.1,07,000/-, there are no grounds to interfere with the said finding. 7. The appeal against respondents 1 and 3 was dismissed for default in payment of process, but that can have no effect on the maintainability of the appeal against respondents 2 and 4 in view of the ratio in A. Robert v. United Insurance Co. Ltd., (1999) 8 SCC 226 , since the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the drivers of the vehicles belonging to respondent Nos.1 and 3 has become final. 8. The date of birth of the deceased, as per EX.A.4 - driving licence, was 7.7.1975. The accident occurred on 20.12.1995, so it is clear that the deceased completed 20 years by the date of his death. 9. The evidence of the 1st appellant (P.W.1) shows that the business being run by the deceased was a proprietary cone en In fact, EX.A.6 - Income-tax Assessment Order for the assessment year 1994-95 shows that the deceased was the proprieto of M/s. Venkateswara Traders. When the business that was being run by the deceased was a proprietary concern, or the death of the deceased, it should have been closed. But EX.A.5 which is dated 18.3.1998, shows that that business wm still being continued, even about two years three months after the death of the deceased. F or that reason and since the name of the proprietor is not mentioned in Ex.A.5, it is easy to see that P.W.1 was running business in the name of the deceased during his lifetime and is continuing the business after the death of the deceased in the same name. Therefore, the contention of the appellants that they were being maintained by the deceased cannot be believed or accepted, because EX.A.5 belies their claim in that regard. 10. The above apart, other documentary evidence adduced by the appellants shows that the deceased was studying at Guntur and was also participating in games and sports and other activities. Therefore, the contention of the appellants that they were being maintained by the deceased cannot be believed or accepted, because EX.A.5 belies their claim in that regard. 10. The above apart, other documentary evidence adduced by the appellants shows that the deceased was studying at Guntur and was also participating in games and sports and other activities. Even P.W.1 stated that the deceased, a resident of Mangalagiri, was attending college at Guntur and was participating in sports events at Guntur. So it is clear that the deceased was spending a major portion of his time at Guntur only i.e. in college for studies and sports and other activities and so the business at Mangalagiri has to be looked after by somebody else. It can obviously, be by P.W.1 only. In view of the above, it cannot be said that the deceased was carrying on business by himself without the assistance of his father. The above circumstance read with EX.A.5 establishes that the first appellant was carrying on the business in the name of his son till his death and is continuing it subsequently, either in his name or some other name, since EX.A.5 does not disclose the name of the proprietor. 11. Since the deceased was unmarried, for awarding damages to the appellants, his contribution to them for their maintenance will have to be evaluated. Had the deceased, who was aged 20 years, been alive, he would have got married about one or two years later and would have begotten children and major part of his earnings would go for the maintenance of his wife and children. First appellant is an able bodied man carrying on business, so he would not depend on the income of the deceased. In these circumstances, the average contribution of the deceased to the appellants can be taken as Rs.1,000/per month or 12,000/- per year. 12. The burden to establish their ages is on the appellants. Merely because they have mentioned some age as their age in the claim petitions, that age cannot be taken as true because neither the Act nor the Andhra Pradesh Motor Vehicles Rules, which lay down the procedure for filing claim petitions under the Act do not contemplate the claimants producing proof of their age, before registering their claim petition. Merely because they have mentioned some age as their age in the claim petitions, that age cannot be taken as true because neither the Act nor the Andhra Pradesh Motor Vehicles Rules, which lay down the procedure for filing claim petitions under the Act do not contemplate the claimants producing proof of their age, before registering their claim petition. So, in order to assist the Court in fixing their correct ages, the claimants should produce some proof before the Tribunal. The appellants failed to do so. So keeping in view the age of the deceased, and since the claim petition is silent and P.W.1 did not state the number of children and sons they have, the Tribunal fixing the age of the second appellant at 45 years cannot be said to be erroneous. 13. Since the age of the second appellant is taken as 45 years, the multiplier as per II Schedule to the Act will be 13, so the pecuniary damages payable to the appellants would come to Rs.12,000/- x 13 = 1,56,000/-. 14. As per Schedule II to the Act, they are also entitled to Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate. 15. Since no evidence is produced to show the amount of expenditure incurred by the appellants for treatment of the deceased, the evidence of P.W.1 that he spent more than Rs.50,000/- for treatment of the deceased cannot be believed or accepted. 16. Therefore, the appellants are entitled to Rs.1,56,000/- + Rs.2,000/- + Rs.2,500/- = Rs.1,60,500/- as compensation for the death of the deceased. The point is answered accordingly. 17. Since 1st and 3rd appellants, being father and brother of the deceased, are not legal heirs to the estate of the deceased and Section 166 of the Act contemplates a claim being made by the legal representatives of the deceased victim, strictly speaking they are not entitled to any compensation but as the Tribunal awarded and apportioned the compensation to them also, I do not wish to interfere with the apportionment made by the Tribunal. The additional amount awarded in this Court would only go to the second appellant. 18. In the result, the appeal is allowed in part. The additional amount awarded in this Court would only go to the second appellant. 18. In the result, the appeal is allowed in part. The award of the Tribunal is modified and an award is passed for Rs.1,60,500/- with interest @ 12% per annum on.1,07,000/- from the date of petition till the date of deposit as awarded by the Tribunal and with interest @ 9% per annum on Rs.53,500/-, awarded in this appeal, from this day till the date of deposit into the Tribunal with proportionate costs in the Tribunal. Rest of the claim of appellants is dismissed without costs. Parties shall bear their own costs in this appeal.