1 THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA M.A.C.M.A.No.1491 of 2017 JUDGMENT: 1. This appeal is directed against the decree and order dated 28.03.2017 passed in M.O.P.No.624 of 2015 by the Motor Accidents Claims Tribunal-cum- III Additional District judge, Vizianagaram (for short “the learned MACT”). 2. Respondent Nos.2 and 3 before the learned MACT, A.P.S.R.T.C. Depot Manager, S. Kota and A.P.S.R.T.C Managing Director, Hyderabad respectively, filed the present appeal. 3. Respondent No.1 before the learned MACT is the driver of the A.P.S.R.T.C. Bus bearing No. AP 28 Z 5956 (hereinafter referred to as “the offending vehicle”), is arrayed as Respondent No.5 herein. 4. Respondent Nos.1 to 4 herein are the claimants before the learned MACT claimed compensation for the death of one Dasari Krisha Murthy (hereinafter referred to as “the deceased”), in a motor vehicle accident. Claim was made for Rs.15,00,000/- and the learned MACT allowed the same granting a compensation of Rs.15,00,000/- with interest at 9% per annum. Feeling aggrieved by the award and decree, the present appeal is filed. 5. Case of claimants in brief is that the deceased was aged about 63 years and earning of Rs.30,000/- per month being the proprietor of the business 2 concern i.e. Sri Venkateswara Generals. Claimants are wife and children of the deceased. 6. On 06.01.2015, the deceased and his wife went for morning walk, at about 05:45 A.M. When they were near Kothuru Village tank within the limits of S.Kota Police Station, Vizianagaram District, the driver of the offending vehicle came in a rash and negligent manner and dashed the deceased causing grievous injuries on his head and all over the body, whereby the deceased suffered instantaneous death. The Police registered a case vide Crime No.5 of 2015 for the offence under Section 304-A IPC and subsequently charge sheet was filed against the driver of the offending vehicle. Since the claimants are legal heirs and dependents, they are entitled for just compensation of Rs.15,00,000/-. 7. Respondent No.1 remained ex parte. 8. The written statement of Respondent No.3 is adopted for Respondent No.2. 9. The case of Respondent No.3 in brief is that the claimants shall prove the pleaded accident, negligence of the driver of the offending vehicle, age, occupation and income of the deceased, dependency of the claimants with a strict proof. There was heavy snow fall on the day of accident and when the driver of the offending vehicle took left turn to avoid a major accident and to save passengers and stopped the offending vehicle, the deceased fallen down on the 3 road and due to hitting road he sustained injuries. There was no negligence on the part of the driver of the offending vehicle. 10. On the strength of pleadings, the following issues were settled for trial by the learned MACT: 1. Whether the motor vehicle accident took place on 06.01.2015 at 05:45 A.M., at Kothuru Village Tank, due to rash and negligent driving of the Bus bearing No.AP 28 Z 5956 its driver, resulting death or the Dasari Krishna Murthy? 2. Whether the petitioners are entitled for compensation, if so, what amount and from whom? 3. To what relief? 11. Evidence before the learned MACT: Description Remarks Oral evidence P.W.1: Dasari Kameswari Eye witness to the accident P.W.2: A. Muralidhara rao Accountant RW.1: K.R.D. Prasad Driver of the offending vehicle Documentary evidence Ex.A1: Copy of FIR Ex.A2: Copy of post mortem certificate Ex.A3: Copy of Charge sheet Ex.A4: Copy of Motor Vehicle Inspector‟s Report Ex.A5: VAT registration certificate issued by the Commissioner. On behalf of the petitioner(s). 4 Ex.A6: Tax Department, Day Book Copy of 2013-14 Ex.A7: Ledger Book Copy of 2013-14 Ex.A8: Day Book Copy of 2014- 15 Ex.A9: Ledger Book Copy of 2014-15 Ex.A10. VAT return copy from 7/2013 to 2/2014 Ex.A11: VAT Return copy from 4/2014 to 12/2014. 12. One Smt. Dasari Kameswari, wife of the deceased was examined as PW.1. The claimants relied on copies of Ex.A1-FIR, Ex.A2-Postmortem certificate, Ex.A3-Charge sheet, Ex.A4-Motor Vehicle Inspector‟s Report, Ex.A5- VAT Registration certificate issued by the Commissioner, Commercial Taxes Department. 13. One Sri A. Muralidhara Rao was examined as PW.2 who is used to write accounts relating to the business of the deceased. He has stated about total purchases and sales done by the deceased at Rs.28,35,818.35/- for the financial year 2013-2014 and Rs.24,42,724.68/- for the financial year 2014-15. For the financial year 2014-15, the value of the total sales done by the deceased at Rs.34,12,955.14/- and total purchases done by the deceased at Rs.20,67,557.96/- and stated that the deceased got an amount of Rs.3,00,000/- to Rs.4,00,000/- profit per annum and his income may be around Rs.30,000/- per month. 5 14. The Respondents relied on evidence of driver of the offending vehicle (RW.1) who deposed that due to snowfall the road was not visible. He took the offending vehicle towards left turn to avoid major accident and to save the passengers. The deceased suddenly came but failed to escape from the offending vehicle and dashed the bus. There was no negligence on the part of the RW.1, deceased was negligent. 15. During cross examination he has admitted about the filing of charge sheet. He did not file counter in M.V.O.P.No.624 of 2015. 16. No documentary evidence is adduced on behalf of the Respondents. Findings of the learned MACT: 17. PW.1 is an eye witness to the accident, as she was proceeding along with the deceased, her evidence coupled with FIR, postmortem certificate, charge sheet and MVI Report is sufficient to believe that accident has occurred due to negligence of the RW.1 and decide the issue against the Respondents and in favour of the claimants. 18. The income of the deceased can be taken at Rs.3,00,000/- per annum, out of which 1/3rd towards personal and living expenses when reduced the residue at Rs.2,00,000/-, which is multiplicand. Loss of dependency is arrived at Rs.14,00,000/- on applying multiplier „7‟. Rs.1,00,000/- is awarded towards loss 6 of consortium. Rs.10,000/- is towards funeral expenses and Rs.10,000/- is awarded towards mental agony. In all, entitlement for compensation comes to Rs.15,20,000/- but entitled to only to Rs.15,00,000/- with interest at 9% per annum as claim is made for Rs.15,00,000/- only. Arguments in the appeal: For the appellant(s) / A.P.S.R.T.C: 19. Learned counsel for appellant / A.P.S.R.T.C. submitted that there is no basis for accepting income at Rs.3,00,000/- per annum. The evidence of accountant is interested one and the negligence aspect also not properly appreciated by the learned MACT and in any event quantum of compensation awarded is excessive. For the claimants: 20. Learned MACT having found that the claimants are entitled for Rs.15,20,000/- ought to have awarded the same but erred in reducing the same and the claimants are entitled for more compensation than what claimed and there is no bar for awarding more than what is claimed. Even in this appeal also the compensation awarded can be enhanced. 21. Perused the record. Thoughtful consideration given to the arguments advanced by the both sides. 7 22. Now, the points that arise for determination in this appeal are: 1) Whether the pleaded accident 06.01.2015 has occurred due to rash and negligent driving of the driver of the offending vehicle? 2) Whether the claimants are entitled for compensation, if so, to what quantum and what is the liability of the Respondents? 3) Whether the compensation awarded at Rs.15,00,000/- by the learned MACT under decree dated 28.03.2017 is just and reasonable? 4) What is the result of the appeal? Point No.1: 23. Evidence of PW.1 is clear and categorical. She is the eye witness to the accident. Her evidence coupled with entries in FIR, charge sheet, etc. probabilising the accident and negligence of the driver of the offending vehicle. Even the contention of the driver of the offending vehicle that there was fog and he was unable to see. He did not observe that there was a vehicle coming in opposite direction. 24. Admittedly, deceased was proceeding as pedestrian. Nothing important is elicited in cross examination of PW.1. The evidence of RW.1, the driver of the offending vehicle is not of much help to disbelieve his negligence in driving the offending vehicle. Therefore, the findings of the learned MACT found fit for 8 confirmation as to negligence. Hence point No.1 is answered accordingly against the appellant and in favour of the claimants. Point Nos.2 & 3: Quantifying the compensation in case of claims arising out of Motor Vehicles Accidents causing death:- Precedential Guidance: 25(i). Hon‟ble Apex Court to have uniformity of practice and consistency in awarding just compensation provided certain guidelines in Sarla Verma (Smt.) and Ors. Vs. Delhi Transport Corporation and Anr.1 vide paragraph Nos.18 and 19, while prescribing a table directing adoption of multiplier mentioned in column No.4 of the table. As per the observations in the judgment the claimants have to establish the following: 1. Age of the deceased. 2. Income of the deceased. 3. Number of dependents. 25(ii). Hon‟ble Apex Court directed certain steps while determining the compensation, they are: Step No.1: Ascertain the multiplicand, which shall be the income of the deceased he / she should have contributed to the dependents and the same can be arrived after deducting certain part of personal living expenses of the deceased. 1 2009 (6) SCC 121 9 Step No.2: Ascertaining Multiplier. This shall be with reference to the table provided and table is provided in judgment itself. Step No.3: Calculation of the compensation. Final Step: After calculation adding of certain amount towards conventional heads towards loss of estate, loss of consortium, funeral expenditure, cost of transport, cost of medical expenses for treatment of the deceased before the death etc. are advised. 26(i). Enhancing the scope for awarding just compensation, the Hon‟ble Apex Court in National Insurance Company Ltd. v. Pranay Sethi and Others2 case guided for adding of future prospect. In respect of permanent employment, 50% where the deceased is below 40 years, 30% where the deceased is 40-50 years and 15% where the deceased is 50-60 years. 26(ii). The actual salary to be taken shall be after deducting taxes. Further, in respect of self employed on fixed salary addition is recommended, at 40% for the deceased below 40 years, at 25% where the deceased is between 40-50 years, at 10% where the deceased is between 50-60 years. Further, adding of compensation for loss of estate, loss of consortium and funeral expenses at 2 2017(16) SCC 680 10 Rs.15,000/- and Rs.40,000/- and Rs.15,000/- respectively is recommended by Hon‟ble Apex court with an addition of 10% for every three years in Pranay Sethi’s case. 27. Further enlarging the scope for awarding just and reasonable compensation in Magma General Insurance Company Ltd. v. Nanu Ram and Others3, Hon‟ble Apex Court observed that compensation can be awarded under the heads of loss of consortium not only to the spouse but also to the children and parents under the heads of parental and filial consortium. 28. In Rajesh and others vs. Rajbir Singh and others4, the Hon‟ble Supreme Court in para Nos.10 and 11 made relevant observations, they are as follows: 10. Whether the Tribunal is competent to award compensation in excess of what is claimed in the application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At para 10 of Nagappa case [Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 : 2003 SCC (Cri) 523 : AIR 2003 SC 674] , it was held as follows: (SCC p. 280) “10. Thereafter, Section 168 empowers the Claims Tribunal to „make an award determining the amount of compensation which appears to it to be just‟. Therefore, the only requirement for determining the compensation is that it must be „just‟. There is no other limitation or restriction on its power for awarding just compensation.” The principle was followed in the later decisions in Oriental Insurance Co. Ltd. v. Mohd. Nasir [(2009) 6 SCC 280 : (2009) 2 SCC (Civ) 877 : (2009) 2 SCC (Cri) 987] and in Ningamma v. United India Insurance Co. Ltd. [(2009) 13 SCC 710 : (2009) 5 SCC (Civ) 241 : (2010) 1 SCC (Cri) 1213] 11. Underlying principle discussed in the above decisions is with regard to the duty of the court to fix a just compensation and it has now 3 (2018) 18 SCC 130 4 (2013) 9 SCC 54 11 become settled law that the court should not succumb to niceties or technicalities, in such matters. Attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim. 29. Claimant No.1 is wife of the deceased. Claimant Nos.2 to 4 are the sons of the deceased. Therefore, they can be considered as legal heirs. Dependency of claimant No.2 to 4 is doubtful because of their age and for want of evidence as to their dependency on the deceased. Hence, claimant No.1 alone can be considered as dependant. However, awarding of compensation under the heads of loss of love and affection, loss of consortium etc. for claimant Nos.2 to 4 cannot be ignored. They are entitled for some reasonable compensation though not on the ground of loss of dependency. 30(i) Following documents were relied on by the claimants for proof of income: Sl. No. Description of the documents Remarks 1. Day book relating to Financial Year 2013-2014 Original 2. Ledger Book relating to Financial Year 2013-2014 Original 3. Day book relating to Financial Year 2014-2015 Original 4. Ledger Book relating to Financial Year 2014-2015 Original 5. VAT Return for the months from July 2013 to February, 2014 Originals 6. VAT Return for the month from April, 2014 to December, 2014 except for the months of June, 2014 and November, 2014 Original 12 30(ii). The income relied on by the claimants is at Rs.30,000/- per month which comes to Rs.3,60,000/- per annum while referring to the sales etc. PW.2, the accountant stated that the deceased might have got profit of Rs.3,00,000/-per annum. When the profit is at Rs.3,00,000/-, what about the tax payable and whether the income falls under the taxable limit and what about the payment of income taxed by the deceased are the aspects not addressed either by the claimants or by the learned MACT. 31. The cross examination done on PW.2 would show that Ex.A10 and A11 discloses purchase and sales only and they are not disclosing the profit. Motive is attributed to PW.2 that his evidence is intended to help the claimants. It is also elicited from cross examination of PW.2 that the deceased paid income tax. But, the deceased did not file income tax returns. The PW.2 pleaded about the ignorance of the salaries etc. paid to the staff. He has also admitted that he cannot say monthly income. Except the evidence of PW.2, there is no other convincing evidence. The evidence of PW.2 is not clear as to the exact income, he has stated that it is between Rs.3,00,000/- to Rs.4,00,000/-. The variation of sales is also there, for one year it is shown at Rs.28,35,818.35/- and another year it is shown at Rs.24,42,724.68/- and for one year, It is shown that Rs.34,12,955.14/- and the total purchases done by the deceased is at Rs.20,67,557.96/-. Clear and convincing evidence to show the income of the deceased at Rs.30,000/- per month is not there. 13 32. Learned MACT taken the income notionally at Rs.3,00,000/-. This is neither excessive nor low but some other aspects are necessary. With reference to postmortem certificate etc., the age of the deceased can be taken at „63‟ years. For the said age group, adding of future prospects does not arise. Since income tax returns are not filed even if it is considered that the deceased was getting profit of Rs.3,00,000/- per annum, towards salaries of staff etc. he has to incur expenditure and he has to pay some taxes also is the argument of learned counsel for the appellants. This argument is convincing. Even one employee engaged at the rate of Rs.4,000/-, expenditure comes to Rs.48,000/- whereby the income of the deceased can be taken at Rs.2,52,000/- per annum. 33. Therefore, the income of deceased is taken at Rs.2,52,000/- per annum instead of Rs.3,00,000/- per annum adopted by the learned MACT. When, 1/3rd of the income is deducted towards personal expenditure, then the contribution of the deceased comes to Rs.1,68,000/- and the same can be taken as multiplicand. Multiplier „7‟ is rightly adopted by the learned MACT. Then the entitlement for claimant for the compensation under the head of loss of dependency comes to Rs.11,76,000/- (Rs.1,68,000/-x7). The claimants are entitled for compensation under the heads of loss of estate and funeral expenditure at Rs.15,000/- each and Rs.40,000/- towards each claimant under the head of loss of consortium. Claimant No.1 being spouse and Claimant Nos.2 to 3 being children entitled for loss of spousal and parental consortium. 14 34. The entitlement of claimants in all is concluded for Loss of dependency at Rs.11,76,000/- Loss of consortium in all four claimants at Rs.1,60,000/-, funeral expenditure at Rs.15,000/-, loss of estate at Rs.15,000/-. Therefore, in all the claimants are entitled at Rs.13,66,000/-. 35. In the light of precedential guidance and in view of the reasons and evidence referred above, the entitlement of the claimants for reasonable compensation in comparison to compensation awarded by the learned MACT is found as follows: 36. For the reasons aforesaid, Point Nos.2 and 3 are answered and concluding that the claimants are entitled for compensation of Rs.13,66,000/- with interest at 9% per annum. S.No. Head Granted by the learned MACT Fixed by this Appellate Court 1. Loss of dependency Rs.14,00,000/- Rs.11,76,000/- 2. Loss of consortium to 1st petitioner Rs.1,00,000/- Rs.1,60,000/- (Rs.40,000/- @ each claimant: 40,000x4) 3. Funeral Expenses Rs.10,000/- Rs.15,000/- 4. Mental agony Rs.10,000/- -Nil- 5. Loss of estate -Nil- Rs.15,000/- Total: Rs.15,20,000 /- (But, awarded Rs.15,00,000/- only) Rs.13,66,000/- 15 Point No.4: 37. For the aforesaid reasons and in view of the findings of point Nos.1 to 3, Point No.4 is answered as follows: In the result, (i) The appeal is allowed-in-part. Entitlement: (ii) The claimants shall be entitled for compensation of Rs.13,66,000/- with interest at 9% per annum. (iii) The compensation awarded by the learned MACT at Rs.15,00,000/- with interest at 9% per annum is modified accordingly. Apportionment: (iv) Claimant No.1 is entitled for compensation at Rs.10,66,000/- with proportionate interest and total costs. (v) Claimant Nos.2 to 4 are entitled for Rs.1,00,000/- each with proportionate interest. The apportionment shall include the compensation awarded under the head of loss of consortium. (vi) The claimants are entitled to withdraw their respective shares of compensation at once on deposit As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed. ____________________________ A. HARI HARANADHA SARMA, J Date:25.04.2025 Knr 16 HON’BLE SRI JUSTICE A. HARI HARANADHA SARMA M.A.C.M.A No.1491 of 2017 25th April, 2025 Knr