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Andhra High Court · body

2007 DIGILAW 164 (AP)

Yerra Seethamma v. G. Bhaskar

2007-02-15

C.Y.SOMAYAJULU

body2007
ORDER :-Dissatisfied with the compensation awarded to them, in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (the Act), the widow, children and parents of Nageswara Rao (the deceased) preferred this appeal. 2. The case of the appellants is that when the deceased was proceeding on a motor cycle, as a pillion rider, a vehicle belonging to the first respondent, insured with the second respondent, being driven in a rash and negligent manner, dashed against that motor cycle resulting in his death. As the deceased was earning Rs.2,500/per month as photographer and agriculturist, they are entitled to Rs.4,00,000/- as compensation from the respondents. First respondent chose to remain ex parte both before the Tribunal and in this Court. Second respondent contested the claim petition on various grounds. Having held that the accident occurred due to the rash and negligent driving of the driver of the vehicle belonging to the first respondent, the Tribunal awarded Rs.2,21,000/- as compensation to the appellants. 3. Since this is an appeal by the claimants seeking higher compensation than that was awarded to them, and since the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of the vehicle belonging to the first respondent has become final, the only point for consideration is To what compensation are the appellants entitled to ? 4. The contention of the learned Counsel for the appellants is that when there is ample evidence on record to show that the deceased was earning more than Rs.4,000/- per month as photographer besides doing agriculture, the Tribunal was in error in taking the income of the deceased at Rs.1,800/- per month. The contention of the learned Counsel for the second respondent is that since there is no reliable evidence on record to show the earnings of the deceased, the Tribunal fixing the income of the deceased at Rs.1,800/- per month cannot be said to be erroneous. 5. The accident admittedly took place in the year 1996. Except producing Ex.A3 license issued by the Gram Panchayat to the deceased to run a photo studio in the name and style of Swama colour photo studio from 24-8-1993 to 24-8-1994, appellants not adduce any other evidence to show that the deceased in fact was running a photo studio or to show his income from the photo studio. Except producing Ex.A3 license issued by the Gram Panchayat to the deceased to run a photo studio in the name and style of Swama colour photo studio from 24-8-1993 to 24-8-1994, appellants not adduce any other evidence to show that the deceased in fact was running a photo studio or to show his income from the photo studio. Significantly appellants did not adduce evidence to show that the deceased renewed his license for the years 1994-95 and 1995-96. So merely because of EX.A3 license an inference that the deceased was running a photo studio by 1996 also cannot be drawn because, had he been running photo studio by 1996, the deceased would not have failed to obtain a license from the Gram Panchayat for that period. Similarly no documentary evidence, in the shape of pahanis, is adduced by the appellants to show that the deceased was in possession of some land either as a tenant or as owner. In these circumstances, the Tribunal fixing the income of the deceased at Rs.1,800/- p.m., cannot be said to be erroneous. 6. Since the deceased was aged 40 years by the date of his death, the Tribunal rightly fixed the multiplier at 15 by taking the contribution of the deceased to the appellant at Rs.14,400/- p.a. and rightly awarded Rs.2,16,000/- as pecuniary damages to the appellants. 7. The contention of the learned Counsel for the appellants is that the Tribunal was in error in awarding only Rs.5,000/towards loss of consortium to the first appellant. It is his contention that in view of the ratio in General Manager, Kerala State Road Transport Corporation - v. Susamma Thomas, 1994 ACJ 1, case first appellant is entitled to Rs.15,000/- towards loss of consortium and the appellants are also entitled to Rs.15,000/- towards non-pecuniary damages as held in Y. Varalakshmi v. M Nageswara Rao, 1988 (1) ALT 337. 8. Susamma Thomass case (supra), arose out of an accident that took place prior to the coming into force of Act 54 of 1994 on 14-11-1994, incorporating Schedule II to the Act. When multiplier in Schedule II is adopted, the claimants, in the absence of any reliable evidence, are entitled only to the other damages mentioned Schedule II only. 8. Susamma Thomass case (supra), arose out of an accident that took place prior to the coming into force of Act 54 of 1994 on 14-11-1994, incorporating Schedule II to the Act. When multiplier in Schedule II is adopted, the claimants, in the absence of any reliable evidence, are entitled only to the other damages mentioned Schedule II only. So appellants are entitled to Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate and keeping in view the age of the widow of the deceased she can be awarded Rs.10,000/- towards loss of consortium. So I hold that the appellants are entitled to Rs.2, 16,000/- + Rs.2,000/- + Rs.2,500/- + Rs.10,000/- = Rs.2,30,500/- which can be rounded of to Rs.2,31,000/- as compensation for the death of the deceased. The point is answered accordingly. 9. In the result, the appeal is allowed in part. The award passed by the Tribunal is modified and an award is passed for Rs.2,31,000/- in favour of the appellants against the respondents with interest at 12% p.a. on Rs.2,21,000/- as awarded by the Tribunal and with interest at 9% p.a. on the enhanced amount of Rs.I0,000/awarded in this appeal from this day till the date of deposit into Tribunal with proportionate costs in the Tribunal. Rest of the claim of the appellants is dismissed without costs. From out of the said amount, fourth appellant is entitled to Rs.7,500/- and interest thereon, appellants 2, 3 and 5 are each entitled to Rs.53,375/- and interest thereon, and first appellant is entitled to Rs.63,375/- and interest thereon. Parties are directed to bear their own costs in this appeal.