M.V.ACT - RICKSHAW PULLER= It is the evidence of PW.2 that the deceased was the rickshaw puller and was earning Rs.100/- to Rs.150/- per day. PW.2 is also the rickshaw puller and that he is the eye witness to the accident. As observed by the Tribunal there was no material on record to prove that the deceased was earning Rs.3,000/- per month except oral testimony of PWs 1 and 2. As per Second Schedule under Section 163-A of the Motor Vehicles Act, 1988, non- earning person's income has to be fixed at Rs.15,000/- per annum. In this case, the evidence of PWs 1 and 2 is that the deceased was a rickshaw puller and was earning Rs.3,000/- per month. In the circumstances and the deceased was non-earning member person, in fact, he was living by plying rickshaw and also to meet the ends of justice, this Court is of the view that the Tribunal ought to have fixed the income of the deceased at Rs.2,000/- per month, which is just and reasonable, and as such this Court has fixed the income of the deceased at Rs.2,000/- per month and Rs.24,000/- per annum. Since there are six dependents, 1/4th of the income has to be deducted towards personal expenses of the deceased and thus, the loss of dependency is Rs.18,000/- per annum. Further, Ex.A.2 - post-mortem certificate indicates that the deceased was 48 years at the time of his death in the accident. As per the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation (supra), the appropriate multiplier for a person aged 48 years is "13" and thus the total loss of dependency would come to Rs.2,34,000/- (Rs.18,000/- x 13), apart from that the petitioner No.1 is entitled to Rs.16,000/- towards loss of consortium. Therefore, the petitioners are held to be entitled to a total compensation of Rs.2,50,000/-. Since the petitioners were awarded Rs.50,000/- under 'no fault liability' in M.O.P. No.1187 of 1997, the said amount has to be deducted from the total compensation and the same is hereby deducted and thus the petitioners are held to be entitled to Rs.2,00,000/- (Rupees two lakhs) only (Rs.2,50,000/- minus Rs.50,000/-). In the result, the C.M.A. is allowed enhancing the compensation from Rs.70,360/- to Rs.2,00,000/-, with interest at 6% per annum so far as the enhanced compensation is concerned. There shall be no order as to costs.

HON'BLE SRI JUSTICE B.N. RAO NALLA      

C.M.A. No.2069 OF 2004  

25.04.2013    

Smt. Dosali Appalanarasamma w/o. late D.Suri and five others Appellants

Smt. A.V. Swarnalatha w/o. A. Narayana Murthy and another Respondents  

Counsel for the Appellants: Sri G. Ram Gopal

Counsel for Respondent No.2:Sri B.Devanand

<GIST :

>HEAD NOTE :  

?Cases referred :
2009 ACJ 1298

JUDGMENT:  
           The petitioners in M.O.P. No.204 of 2000 on the file of the Motor
Vehicles Accidents Claims Tribunal- cum- District Judge, Visakhapatnam assailing
the impugned order dated 13th August,2003 filed this appeal seeking enhancement
of compensation since they were awarded only Rs.1,20,360/- with proportionate
costs and interest at 9% per annum from the date of the petition till
realisation, though they claimed a total compensation of Rs.2,00,000/- for the
death of deceased - Dosali Suri, who is husband of petitioner No.1 and father of
petitioner Nos. 2 to 6.

2.      For the sake of convenience, the parties hereinafter referred to as they
arrayed in the M.O.P.

3.      The brief facts of the case that led to filing the present appeal are that
the deceased was rickshaw puller and on 11.10.1997 at about 2.00 p.m., when he
was proceeding with his rickshaw from Maddilapalem to Isukathota, a car bearing
No. AP 31 5157 came from the opposite direction and dashed against the rickshaw,
as a result, the deceased  received grievous injuries and he was shifted to King
George Hospital, Visakhapatnam, where he succumbed to the injuries.  III Town
Police registered a case in Crime No.132 of 1997.   The deceased was aged 48
years at the time of the accident and was earning Rs.100/- to Rs.150/- per day.
Respondent No.1 being the owner of the car and respondent No.2 being the insurer
of it are jointly liable to pay compensation.

4.      Respondent No.1 - owner of the car was set ex parte.  Respondent No.2 -
insurance company filed counter contending that the petitioners are put to
strict proof of the averments made in the petition including the manner in which
the accident occurred and also put to strict proof with regard to possession of
valid driving licence by the driver of the car at the time of the accident.  It
is stated that the compensation claimed by the petitioners is excessive.

5.      Basing on the pleadings of both sides, the relevant issues were framed by
the Tribunal as to the rash and negligent driving of the car bearing No.AP 31
5157 by its driver and as to the entitlement of the petitioners to claim
compensation and the liability of the respondents to pay the same.

6.      During the course of trial, on behalf of the petitioners, petitioner No.1
- wife of the deceased was examined as PW.1 besides examining eye witness to the
accident as PW.2 and Exs.A.1 to A.5 were marked.  On behalf of the respondents,
no evidence was adduced.

7.      The Tribunal after taking into consideration the evidence and other
material brought on record, held that the accident occurred  due to rash and
negligent driving of the car by its driver  and that the petitioners are
entitled to a total compensation of Rs.1,20,360/-.  Not being satisfied with the
compensation awarded, the present appeal has been preferred by the petitioners
seeking enhancement thereof.

8.       Heard the learned counsel for the petitioners - appellants and the
learned standing counsel for respondent No.2 - insurance company.

9.       The learned counsel for the petitioners - appellants contended that the
Tribunal committed error in fixing the income of the deceased at Rs.1,000/- per
month and that as per the decision of the Apex Court in Sarla Verma v. Delhi
Transport Corporation1, the appropriate multiplier is  "13"   for a  person aged
48 years.  The learned counsel contended that the Tribunal ought to have awarded
Rs.15,000/- towards of loss of estate and Rs.8,000/- towards funeral expenses.

10.     The learned standing counsel for respondent No.2 -insurance company
submitted that the Tribunal has awarded just compensation by giving cogent and
convincing reasons, and as such, the impugned order does not warrant
interference at the hands of this Court.

11.     It is the evidence of PW.1- wife of the deceased that her husband used to
earn Rs.3,000/- per month by plying rickshaw and that she and petitioner Nos.2
to 6 are dependents on him.  It is the evidence of PW.2 that the deceased was
the rickshaw puller and was earning Rs.100/- to Rs.150/- per day.  PW.2 is also
the rickshaw puller and that he is the eye witness to the accident. 
 As observed
by the Tribunal there was no material on record to prove that the deceased was earning Rs.3,000/- per month except oral testimony of PWs 1 and 2.   
As per
Second Schedule under Section 163-A of the Motor Vehicles Act, 1988, non- 
earning person's income has to be fixed at Rs.15,000/- per annum.  
 In this
case, the evidence of PWs 1 and 2 is that the deceased was a rickshaw puller and
was earning Rs.3,000/- per month. 
 In the circumstances and the deceased was 
non-earning member person, in fact, he was living by plying rickshaw and also to
meet the ends of justice, this Court is of the view that the Tribunal ought to
have fixed the income of the deceased at Rs.2,000/- per month, which is just and
reasonable, and as such this Court has fixed the income of the deceased at
Rs.2,000/- per month and Rs.24,000/- per annum.  
Since there are six dependents,
1/4th of the income has to be deducted towards personal expenses of the deceased 
and thus, 
the loss of dependency is Rs.18,000/- per annum.  
Further, Ex.A.2 -
post-mortem certificate indicates that the deceased was 48 years at the time of
his death in the accident.  
As per the decision of the Apex Court in Sarla Verma
v. Delhi Transport Corporation (supra), the appropriate multiplier for a person
aged 48 years is "13" and thus the total loss of dependency would come to
Rs.2,34,000/- (Rs.18,000/- x 13),  
apart from that the petitioner No.1 is
entitled to Rs.16,000/- towards loss of consortium.  
Therefore, the petitioners
are held to be entitled to a total compensation of Rs.2,50,000/-. 
Since the
petitioners were awarded Rs.50,000/- under 'no fault liability' in M.O.P.
No.1187 of 1997, the said amount has to be deducted  from the total compensation
and the same is hereby deducted and thus the petitioners are held to be entitled
to Rs.2,00,000/- (Rupees two lakhs) only (Rs.2,50,000/- minus Rs.50,000/-).

12.      In the result, the C.M.A. is allowed enhancing the compensation from
Rs.70,360/- to Rs.2,00,000/-, with interest at 6% per annum so far as the
enhanced compensation is concerned.   There shall be no order as to costs.

___________________  
B.N. RAO NALLA, J  
Date: 25.04.2013