Ayesha Begum vs V. Chandra Mohan

U. Durga Prasad Rao, J.—Dissatisfied with the quantum of compensation awarded in O.P. No. 366 of 2007 by the Chairman, M.A.C.T-cum-III Additional Chief Judge, City Civil Court, Hyderabad (for short "the Tribunal"), the claimants preferred the instant M.A.C.M.A.

The factual matrix of the case is thus:

a) The claimants 1 and 2 are the parents, claimants 3 to 5 are the sisters of the deceased-Md. Abdul Touseef. Their case is that on 26.10.2006 at about 5:30 p.m., when the deceased was proceeding on his motorcycle bearing No. AP 13 KO 978 from Tolichowki towards Mehdipatnam side and when he reached near RTA office, Tolichowki, Langer house, one lorry bearing No. KA 01 B 7529 which was proceeding from Tolichowki towards Nanalnagar, Mehdipatnam came at high-speed and in a rash negligent manner and dashed the motorcycle of the deceased. As a result, the deceased sustained grievous injuries and succumbed to injuries while undergoing treatment. It is averred that the accident occurred due to the rash and negligent driving by the driver of the offending lorry. It is submitted that prior to accident, the deceased used to earn Rs. 3,300/- p.m. and contribute the same to the claimants and due to his sudden demise, the claimants became destitutes. On all these pleas, claimants filed O.P. No. 366 of 2007 against respondents 1 and 2, who are owner and insurer of the offending lorry and claimed Rs. 5,00,000/- as compensation under different heads as mentioned in the O.P.

b) Respondent No. 1 remained ex parte.

c) Respondent No. 2/Insurance Company filed counter and opposed the claim by denying all the material averments made in the petition. R. 2 contended that the accident was occurred due to the fault of the deceased but not the lorry driver. Finally, it contended that the claim is excessive and untenable.

d) During trial P.Ws. 1 and 2 were examined and Exs. A1 to A8 were marked on behalf of claimants. No oral or documentary evidence was adduced on behalf of 2nd respondent.

e) Perusal of the award would show that issue No. 1 is concerned, the Tribunal having regard to the evidence of P.W. 2 - eye witness and Exs. A. 1-FIR and Ex. A. 2-charge sheet held that the accident was occurred due to the fault of lorry driver. Issue No. 2 which relates to quantum of compensation is concerned, the Tribunal did not agree with the claimants that the deceased was earning Rs. 3,300/- p.m. The Tribunal fixed notional income of the deceased at Rs. 3,000/- p.m. Deducting 1/3rd towards his personal expenditure, it multiplied the balance amount of Rs. 2,000/- with multiplier of 7.568 selected on the basis of age of the mother which was 50 years, the Tribunal arrived the loss of earnings of the deceased at Rs. 1,84,320 (24,000/- x 7.568). The said amount was rounded of to Rs. 1,84,000/- and awarded as compensation.

Hence the appeal by the claimants on the ground of inadequacy of compensation.

Heard arguments of Sri P. Ramakrishna Reddy, learned counsel for appellants/claimants and Sri A. Ramakrishna Reddy, learned counsel for 2nd respondent/Insurance Company. Notice to 1st respondent was not served, as the record shows that he left to Karnataka. However, since R. 1 suffered decree before the Tribunal, his absence in the appeal will not have any difference as per the decision reported in Meka Chakra Rao Vs. Yelubandi Babu Rao @ Reddemma and others, .

a) Criticizing the award as low and inadequate, learned counsel for appellants firstly argued that the Tribunal took a very low amount of Rs. 3,000/- as monthly earnings of the deceased, despite the fact that he was studying B.Com. Final Year (Computers) and earning income by giving tuitions. In view of his educational qualification and bright future, the Tribunal ought to have taken Rs. 12,000/- or atleast Rs. 10,000/- as his monthly earnings. In view of the low income fixed by the Tribunal, the compensation for loss of dependency became substantially low. He submitted that in the following decisions in similar circumstances, the income of the concerned deceased who were students, was taken on much higher side.

1) B. Ramulamma and Others Vs. Venkatesh, Bus Union and Another,

2) Managing Director, APSRTC, Musheerabad X Roads, Hyderabad and Depot Manager, Miyapur Depot, Miyapur Vs. C. Rangaswamy and Smt. C. Bhagyalaxmi, .

He thus submitted that a reasonable amount may be taken as income of the deceased and loss of dependency may be reassessed.

b) Secondly, learned counsel argued that the Tribunal erred in taking the age of the mother (1st claimant) for selection of multiplier. He submitted that as per the recent Division Bench decision of our High Court reported in N. Surender Rao and Others Vs. B. Swamy and Another, which was rendered on the basis of the decisions of Hon''ble Apex Court, the age of deceased shall be taken to select the multiplier but not the age of his parents.

c) Thirdly, he argued that the Tribunal grossly erred in not granting any compensation for funeral expenditure, loss of estate, love and affection etc., and compensation under those heads may be awarded in the light of Rajesh and Others Vs. Rajbir Singh and Others, .

He thus prayed to grant just and reasonable compensation by allowing the appeal.

Per contra, while supporting the award learned counsel for respondent No. 2/Insurance Company argued that the compensation awarded by the Tribunal was just and reasonable in all respects and there is no need for revising the same.

a) Expatiating it, firstly he argued that so far as the income of the deceased is concerned, even according to the pleadings of the claimants, the deceased was earning only Rs. 3,300/- p.m. by conducting tuitions and though there is no cogent evidence on this aspect, the Tribunal generously fixed Rs. 3,000/- as his monthly earnings and computed the compensation accordingly. Therefore, the compensation awarded by the Tribunal under the head loss of dependency/loss of earnings cannot be impugned. He submitted that the decision cited by the appellants have no application to the facts of the case inasmuch as in those decisions, the deceased were the Engineering students with computers and mechanics background and in those circumstances, considering the job prospects, the income of those deceased was fixed at Rs. 12,000/- but whereas in the instant case, the deceased was only a B.Com. student without any technical qualification and further his mark sheets would show that he was only an average student. Hence the appellants cannot claim high fixation of income which is not permissible under law.

b) Secondly regarding selection of multiplier, learned counsel argued that the Tribunal was right in accepting the age of the mother. He argued that in taking the age of the dependents of a deceased-bachelor for selection of multiplier, there is logic behind it. The dependants'' i.e., parents of the deceased-bachelor can enjoy the income of the deceased till their lifetime only. Therefore, the age of the parents shall be the criteria in selection of the multiplier. Since the mother will be the younger to father, her age will taken for selection of multiplier in almost all the cases. Therefore, the Tribunal rightly accepted the age of the mother for selection of multiplier and there is no wrong in it. He cited the following decisions to buttress his argument:

1) New India Assurance Company Ltd. Vs. Smt. Shanti Pathak and Others,

2) Shamsunder Tiwari @ Shamlal Tiwari and Others Vs. Narsimha Reddy and Another,

c) Thirdly, he conceded that the Tribunal has not granted compensation under the heads funeral expenditure, loss of estate and love and affection. He thus prayed to dismiss the appeal.

In the light of above rival arguments, the point for determination in this appeal is:

"Whether the compensation awarded by the Tribunal is just and reasonable and needs any enhancement?"

POINT: The accident, involvement of motorcycle of the deceased and offending lorry, death of deceased are all admitted facts. The Tribunal on consideration of the evidence on record held that in the circumstances of the case, the lorry driver was responsible for the accident and this finding has not been challenged by the owner or the insurer of the offending vehicle. Hence the only point for consideration in this appeal is with regard to the adequacy of compensation.

The first and foremost argument of learned counsel for appellants is that the Tribunal took a very low amount i.e., Rs. 3,000/- as income of the deceased though he was B.Com. (Computers) student and earning Rs. 3,300/- p.m. Learned counsel stressed the point that not only the present income but also the future job prospects must also be taken into consideration for fixing the income and in that view of the matter, the Tribunal ought to have fixed Rs. 12,000/- or atleast Rs. 10,000/- as the monthly income of the deceased. As already stated supra, the contention of 2nd respondent is that the deceased was a B.Com. student and not pursuing any professional courses like Medicine or Engineering and even as per pleadings, he was earning only Rs. 3,300/- p.m. and considering his present income and job prospects only the Tribunal rightly fixed his monthly income as Rs. 3,000/-. Hence, there is no need to revise the same.

I find force in the submission of learned counsel for 2nd respondent. As per petition averments, the deceased was studying B.Com. Final Year (Computers) in G. Pulla Reddy College, Mehdipatnam, Hyderabad by the date of accident and he was conducting tuitions and earning Rs. 3,300/- p.m. When coming to the evidence, the claimants produced Exs. A. 6 to A. 8-academic records of the deceased. Ex. A. 6 is the S.S.C. certificate, it shows that the deceased passed the S.S.C. examination with second division. Ex. A. 7 is the Intermediate pass certificate-cum-Memorandum of Marks issued by the Board of Intermediate Education, Andhra Pradesh, which shows the deceased passed Intermediate with Second Division. Whereas Ex. A. 8 consists of mark sheets of B.Com. I and II year. So the academic record would show that the deceased was pursuing his B.Com. Final Year and admittedly it was not a professional course like Engineering or Medicine etc., Be that it may, the claimants did not produce any document to show that deceased was conducting tuitions. They have not examined any students or their parents who engaged the deceased to conduct tuitions. In those circumstances, the Tribunal notionally fixed the monthly earnings of the deceased as Rs. 3,000/-. The said fixation cannot be found fault in the backdrop of the aforesaid facts.

The cited decisions can be distinguished on facts. In B. Ramulamma and Others Vs. Venkatesh, Bus Union and Another, and in Managing Director, APSRTC, Musheerabad X Roads, Hyderabad and Depot Manager, Miyapur Depot, Miyapur Vs. C. Rangaswamy and Smt. C. Bhagyalaxmi, , the deceased were professional students pursuing B.E(Computers) and B.E(Mechanic). Having regard to their job prospects and earning potential, their earnings were taken as Rs. 12,000/- in those cases. However the same income cannot be adopted in each case.

Then coming to the selection of multiplier, the Tribunal basing on the age of 1st claimant (mother of deceased) as 50 years, selected multiplier 7.568. It may be noted that in the recent decision N. Surender Rao and Others Vs. B. Swamy and Another, , a Division Bench of this Court, considering several decisions of Hon''ble Apex Court, has laid down that the age of deceased-bachelor shall alone be taken into consideration but not the age of his/her dependent parents. The decision cited by the 2nd respondent in the case of New India Assurance Company Ltd. Vs. Smt. Shanti Pathak and Others, is also discussed in the above Division Bench decision. However the Division Bench decided to follow the subsequent latest decision of the Apex Court in giving its finding. Hence, it is clear that the age of the deceased-bachelor shall be taken for selection of multiplier. Therefore, the decisions cited by the 2nd respondent are not followed here. As per Ex. A. 6, the deceased was born on 17.06.1986. So by the date of accident, he was 20 years old. In the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the Apex Court has given a multiplier table to be followed. As per which, multiplier ''18'' is provided for the deceased in the age group of 15 to 20 years. So multiplying the annual income of the deceased with 18 (Rs. 36,000/- X 18), we will arrive his total earnings at Rs. 6,48,000/-. In the aforesaid Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , it was held that 50 % of the earnings should be deducted towards the personal expenditure in case the deceased is a bachelor. So deducting 50%, the balance amount of Rs. 3,24,000/- is awarded as compensation for the loss of dependency.

Then coming to the compensation under other heads i.e., funeral expenditure, loss of estate, love and affection etc., the Tribunal has not granted any compensation under those heads. Therefore, the claimants who are the parents and sisters of the deceased deserve the compensation under those heads. Following the decision of the Apex Court in Rajesh and Others Vs. Rajbir Singh and Others, , the claimants are awarded Rs. 25,000/- towards funeral expenditure. They are also awarded a sum of Rs. 5,000/- each towards loss of estate and love and affection. Thus, the total compensation payable to the claimants under different heads is detailed as below:

So the compensation is enhanced by Rs. 1,75,000/- (Rs. 3,59,000/- minus Rs. 1,84,000/-).

In the result, this appeal is partly allowed and ordered as follows:

a) The compensation is enhanced by Rs. 1,75,000/- with proportionate costs. The enhanced compensation amount shall carry interest at 6% p.a. from the date of O.P. till the date of realization.

b) The respondents are directed to deposit the enhanced compensation amount within one month from the date of this judgment, failing which execution can be taken out against them.

c) No order as to costs.

As a sequel, miscellaneous applications pending, if any, shall stand closed.