ORDER
1. This appeal and the cross-objections arise out of an award made in OP No. 774 of 1993 dated 29-4-1997 by the Motor Accidents Claims Tribunal-cum-V Additional District Judge, at Tirupati (for short “the Tribunal”). Since the appeal and the cross-objections arise out of the same award made in OP No. 774 of 1993, they are being disposed of by the following common order.
2. There are two appellants in CMA No. 1726 of 1997, the first appellant being the owner of the offending lorry bearing No. AAC 7477 who is a resident of Balaji Nagar, Greamspet, Chittoor and the second appellant is the Oriental Insurance Company Limited, Chittoor – insurer of the offending vehicle AAC 7477. These two appellants have chosen to assail the award passed by the Tribunal granting a total compensation of Rs. 98,40,500/-with interest at 12% per annum from the date of the petitioner till the date of realisation, to the respondents-claimants herein. The respondents-claimants have also filed cross-objections in this appeal being dissatisfied with the compensation of Rs. 98,40,500/- granted by the Tribunal below as against their total claim of Rs. Two crores, for the death of V. Rajkumar in a motor vehicle accident occurred on 29-4-1993 at 1-30 p.m., near Kalroadpalle on Chittoor-Tirupati Main Road.
3. When the appeal and cross-objections are taken up for consideration, on behalf of the claimants/cross-objectors, a preliminary objection is raised with regard to the maintainability of the appeal in CMA No. 1726 of 1997 by the Insurance Company along with the owner of the offending vehicle involved in the accident. Likewise, on behalf of the appellants in CMA No.1726 of 1997, a preliminary objection is also raised with regard to the maintainability of the cross-objections filed by the respondents claimants in the appeal.
4. In view of the preliminary objections raised by the respective parties, we shall decide them at the first instance and later we decide the appeal and cross-objections on merits.
5. Sri E. Manohar, learned senior Counsel appearing on behalf of the respondents-claimants/cross-objectors submitted that in view of the law laid down by the Supreme Court in Shankarayya and Anr. v. United India Insurance Company Limited, , the Insurance Company is not entitled to file the appeal assailing the award of the Tribunal on merits and that a joint appeal filed by the Insurer and the owner of the offending vehicle is not maintainable. Learned senior Counsel appearing on behalf of the appellants Sri Challa Seetaramaiah, conceded the fact, in view of the law laid down by the Apex Court and pleaded to dismiss the appeal filed by the Insurance Company. Therefore, in view of the decision of the Supreme Court in Shankarayya’s case (supra), the appeal filed by the 2nd appellant-Insurance Company in CMA No. 1726 of 1997 shall stand dismissed and the appeal in CMA No.1726 of 1997 is treated as being filed by the owner of the offending vehicles AAC 7477 only.
6. Insofar as the preliminary objection raised on behalf of appellant in CMA No.1726 of 1997 as to the maintainability of the cross-objections by the respondents-claimants, Sri Challa Seetharamaiah, learned senior Counsel while drawing our attention
to Sections 165, 173, 176 of the Motor Vehicles Act, 1988 and Rules 454 and 462 made thereunder, submitted that since the Tribunal below is not a ‘Court’ and the award made by it is not a ‘decree’, the cross-objections filed by the respondents-claimants under Order 41, Rule 22 of CPC are not maintainable. In support of his contention, learned senior Counsel placed reliance on few decisions of the Supreme Court in M/s. M. Ramnarain Private Limited v. State Trading Corporation of India Limited, , M/s. Swajmull Nagarmull v. State of West Bengal, 1962 (2) SCR 163, and in Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar, .
7. Sri E. Manohar, learned senior Counsel appearing on behalf of the respondent/cross-objectors, on the contrary, submitted that the issue relating to filing of cross-objections under Order 41, Rule of 22 CPC by the claimants has been settled long back by the Courts while dealing with Section 110-D of the M.V. Act, 1939 holding that filing of cross-objections by the claimants are maintainable. Learned senior Counsel in support of his submissions placed reliance on a decision of the Division Bench of this Court in Srtiailam Devastanam, Represented by Executive Officer v. Bhavani Premeelamma, 1983 (2) APLJ 20, and the Full Bench Decisions of Allahabad High Court and Karnataka High Court in U.P. State Road Transport Corporation v. Smt. Janki Devi, , and K. Chandrashekara Naik v. Naryana, .
In the decision supra, it is held by a Full Bench of Allahabad High Court while dealing with the provisions under Section 110-D of the M.V. Act, 1939, thus:
The nature of the jurisdiction dealing with an appeal under Section 110-D of the Motor Vehicles Act has to be considered in
the background that the claim for compensation caused by negligence is independent of any statute and is well known to the law of torts. This common law right was not intended to be changed or modified by the Motor Vehicles Act. By enacting Section 110-F the jurisdiction of the civil Court is barred only to entertain the original claim as a trial Court and the bar operates in the area where the Claims Tribunals have been set up. In other area, the Civil Courts continue to entertain such claims. While hearing an appeal under Section 110-D of the Motor Vehicles Act, the High Court has to consider the claim in the same manner as it would consider the claim in an appeal from a civil Court from an area in which the Claims Tribunal has not been established. It is, therefore, obvious that the proceedings before the Claims Tribunal do not have any similarity or semblance with the arbitration proceedings although in the Act the decision of the Claims Tribunal is called an award but that would not lead to the inference that the proceedings before the Claims Tribunal are in the nature of the arbitration proceedings and the claims Tribunal decides the matter as an arbitrator. The words award has been used in the Act in a sense of a decree or akin to a decree since the award given by the Tribunal in such claim cases determines the rights of the parties. Since the procedure contemplated by Order 41, Rule 22 is applicable to the appeal preferred under Section 110-D of the Motor Vehicles Act, the word ‘Court’ may be read as ‘Tribunal’ and the word ‘decree’ may be read as award.”
In the decision (supra), a Full Bench of the Karnataka High Court while dealing with the provisions of Section 110-D of M.V. Act, 1939, at para 20, held thus:
“Order 41, Rule 22 Civil P.C. is apparently a special provision which gives a respondent, who in the first instance is satisfied with partial success in the Court below, another opportunity of challenging the part of the decree which has gone against him upon his opponent preferring an appeal. In the appeal filed from any part of the decree
before the High Court, the procedure laid down in Order 41, Rule 22 CPC has to be followed by the High Court. Therefore, cross-objections are maintainable, in appeals that lie to the High Court under Section 110-D of the Motor Vehicles Act, 1939.”
8. This Court in the decision (supra) also expressed the same view, while considering the import of Section 110-D of the M.V. Act, 1939, as under:
“Cross-objections in an appeal under Section 110-D of the Motor Vehicles Act do lie under Order 41, Rule 22 of CPC, it is now well settled position of law that where a statute provides a right of appeal to an established Court without anything more as to the manner in which the appeal is to be disposed of, then the incidents of right of appeal will carry with it the applicability of the rules of practice and procedure of that Court with regard to its power to entertain an appeal filed and its disposal, manner of exercise of that jurisdiction and the incidents thereof. This principle with its logical consequence with be extended to filing of cross-objections.”
Though the learned senior Counsel appearing on behalf of the appellant placed reliance on the decisions (supra) in support of his contention that cross-objections under Order 41, Rule 22 CPC filed by the claimants is not maintainable in an appeal, on a reading of several decisions, we are of the view, the issue relating to filing of cross-objections by the parties, in an appeal filed against an award passed under Section 110-D of Motor Vehicles Act, 1939 (old) are directly covered by the decisions, (supra) and therefore, when there are direct decisions on the point available, there is no reason for us to indulge in beating around the bushes and find out which is relevant in the facts of the case.
9. In view of the ratio laid down in the decisions 5 to 7 (supra), we are inclined to hold that the cross-objections filed
under Order 41, Rule 22 of CPC by the respondent-claimants in CMA No. 1726 of 1997 are maintainable.
10. This takes us to the merits of the case and we shall advert to the facts of the case.
11. On the early hours of 28-4-1993 the deceased V. Raj Kumar, in pursuance of business work, started from Hyderabad in 118 NE Fiat car being No.AP 10 C 777 to Kurnool and after completion of deliberations with the officials of PWD reached Cuddapah and made a night halt there. Next day i.e., on 29-4-1993, he started from Cuddapah and reached Chittoor at 11-30 a.m. After completing his work at Chittoor, he was proceeding to Nellore by driving the car. By the time he reached Kalroadpalle at 1-30 p.m., the lorry bearing No. AAC 7477 driven by the first respondent at a high speed and in a rash and negligent manner came in opposite direction on the wrong side and dashed the car driven by the deceased which was going on its correct side cautiously and carefully. Due to the said accident, said V. Raj Kumar and his employee by name P. Rama Raju died on the spot and another person by name T.S. Raju sustained injuries, The deceased V. Raj Kumar was aged 38 years at the time of the accident.
12. It is averred by the claimants/cross-objectors that the deceased V, Raj Kumar was an Engineering Graduate. His father 4th claimant/respondent is also a businessman. The deceased who was a meritorious student opted for business and within a short time, he established very good reputation and good-will in several wings of his business. At the time of the death, the deceased was Executive Director of Suvarna Cements Limited. He was Managing Partner of Eastern Construction Company, and also Managing Partner of Krishna Construction Company, partner of
Vijaya Engineering Company which were engaged in civil contracts. The deceased also promoted a merchant export firm in the name and style of M/s. Suvarna International and also promoted a Granite Tile Industry. The deceased had also a plan for establishing an engineering college under the name Sree Vidya Academy of Education, He also went to Japan in the year 1992 and taken overseas training. The deceased had maintained high status not only in the business circles but also in the society. From out of all these ventures, the deceased was earning a net annual income of Rs. 12 lakhs. In view of his experience, education, ability and capacity, the deceased would have certainly improved his business several folds and would have earned much more had he been alive.
13. Petitioner-Claimant No. 1 is the wife, claimants 2 and 3 are the sons and claimants 4 and 5 are the parents of the deceased. They filed the OP seeking a total compensation of Rs. Two crores for the death of the deceased V. Raj Kumar, from the respondents therein.
14. Though there were three respondents in the OP, viz., the driver of the offending vehicle being the first respondent, owner of the said vehicle being the second respondent and the third respondent being Oriental Insurance Company, the driver and the owner of the vehicle remained ex parts.
15. The Oriental Insurance Company -third respondent in the OP in its counter disputed the age of the deceased and also the claim of the claimants that the deceased was earning Rs. 12 lakhs per annum. The Insurance Company averred that the deceased died not on account of the rash and negligent driving of the offending vehicle but on account of his own negligence. It is also pleaded that the compensation claimed is exorbitant and cannot be granted.
16. On the basis of the above pleadings, the Tribunal below framed the following issues for trial viz.,
(1) Whether the deceased V. Raj Kumar died due to rash and negligent driving of the lorry AAC 7477 by its driver?
(2) What was the age and income of the deceased at the time of accident.?
(3) Whether the petitioners are dependents and they are entitled to the compensation, and if so, to what amount? By whom?
(4) To what relief?
17. To substantiate their case, the claimants examined PWs. 1 to 3 and marked Exs.Al to A26. PW1 is the wife of the deceased, PW2 is said to be an independent eye-witness to the accident and PW3 is a practising auditor at Hyderabad. On behalfof the contesting 3rd respondent-Insurance Company, no witness was examined and no documents were marked.
18. On the basis of the oral and documentary evidence, the Tribunal below, by the impugned award dated 29-4-1997 granted a total compensation of Rs. 98,40,500/- to the claimants under the following heads, viz.,
(a) compensation for loss of consortium
to the 1st petitioner Rs. 10,500/-
(b) compensation for pain and suffering
Rs. 10,000/-
(c) compensation for loss of expectation
of life Rs. 10,000/-
(d) compensation for love and affection
to petitioners 2 and 3 at Rs. 5,000/-
each Rs. 10,000/-
(e) compensation for future earning loss to the estate of the deceased etc., Rs. 98,00,000/-
19. The Tribunal below also granted interest on the above amount at 12% per annum from the date of filing of the petition till the date of realisation.
20. On behalf of the appellant in CMA No. 1726 of 1997, Sri Challa Seetharamaiah, learned senior Counsel submitted that the car driven by the deceased was proceeding from Chittoor to Tirupati, whereas the offending lorry was coming from Tirupati to Chittoor, at the time of the accident. According to the learned senior Counsel, as found by the Motor Vehicle Inspector in his report Ex.A5, the front portion of the car driven by the deceased was completely damaged, but in so far as the offending lorry is concerned, only its right side is damaged. Learned senior Counsel submitted that if the incident is taken as reported in Ex.A5, the car went to the right side of the road which only shows that the deceased was taking the care on the wrong side of the road. Counsel stated that as per Ex.AS, the width of the road was 22 feet, and the road is a black top right turn road with a side margin of 6 feet on both sides. The offending lorry was reported to be proceeding towards Chittoor and it was shown to be stationed on the right side of the road. Counsel submitted that as per the report of the Motor Vehicle Inspector the car driven by the deceased was on the right side of the road whereas the lorry which came in opposite direction was on the left side of the road and thus, it could not be said that the accident had taken place due to the rash and negligent driving of the lorry on the wrong side. He also drew our attention to the report of Ex.AS and tried to connivance us the extent of damage caused to the vehicles.
21. According to the Counsel, the car driven by the deceased was completely damaged but the lorry’s right portion alone was damaged. Counsel, therefore,
submitted that the damage to both the vehicles would also be taken into account while fixing the liability as to who is at fault. He submitted that the deceased was rash and negligent in his driving and the accident took place only on account of his taking the vehicle on right side of the road which resulted in his loss of life and causing extensive damage to his car. Counsel stated, that claimants are entitled only the compensation under ‘no-fault liability’ and not otherwise.
22. Learned senior Counsel nextly submitted that it has come in the evidence of PW1 who is the wife of the deceased that the driver of the car was also sitting in the car in the back seat and he also sustained some injuries, it is not known as to why the said driver was not examined. Had he been examined, the exact cause of the accident would have come to light. He, therefore, contended, that the claimants, by not examining the best witness-driver of the car, are attempting to suppress the real cause of the accident. According to the senior Counsel, the Court below failed to take these factors into consideration and awarded exorbitant compensation holding that the deceased died due to the rash and negligent driving of the offending lorry. Counsel while placing reliance on a decision of the Supreme Court in Syed Akbar v. State of Karnataka, , contended that the maxim res ipsa liquitur would squarely apply to this case inasmuch as in the light of the extent of damage caused to the car driven by the deceased, non-examination of the driver of the car who was sitting in the car at the time of the accident, reasonable presumption has to be drawn that the claimants are hiding the truth about the manner in which the accident had taken place and, therefore, pleaded, there is contributory negligence on the part of the deceased, which should have been a guiding factor for the Tribunal to fix liability and determined the
compensation according to the extent of involvement of the offending lorry in the accident.
23. Coming to the quantum of compensation awarded by the Court below, learned senior Counsel submitted that Exs. A16 and A17 – income tax assessment orders pertaining to the deceased for the years 1992-93 and 1993-94 were placed before the Tribunal for consideration and the Tribunal on those basis awarded the exorbitant compensation. Counsel submitted that though it is claimed by the claimants that the deceased was a businessman and civil contractor, but no evidence was produced by the claimants with regard to the pending works of the deceased so as to ascertain the average annual income of the deceased for granting just and reasonable compensation. Counsel contended, in a case of this nature, the steady income of the deceased spreading over to several years has to be taken into consideration for awarding just compensation and in the absence of those figures, the Tribunal ought not to have granted such a huge sum of Rs. 98 lakhs solely on the basis of Exs.A16 and A17. Counsel submitted that as held by the Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas, , certain parameters have to be applied while determining the just and reasonable compensation to the claimants but the Tribunal has lost sight of the principles laid down in the said decision and awarded abnormal compensation. Learned senior Counsel, therefore, pleaded that the impugned award of the Tribunal cannot be sustained and is liable to be set aside.
24. On behalf of the claimants/cross-objectors, Sri E. Manohar, learned senior Counsel submitted that PW1 who is the wife of the deceased has placed what all is required for the Tribunal to grant just and
reasonable compensation. Learned senior Counsel submitted that PW2 being an eyewitness to the accident deposed that the offending lorry was driven in a rash and negligent manner on the wrong side of the road and hit the car driven by the deceased on account of which the deceased received serious injuries and died. It is submitted that though PW2 is subjected to lengthy cross-examination, his disinterested testimony has not been discredited and therefore, the independent evidence of PW2 cannot be discarded. Insofar as Ex.A5 – M.V. Inspector’s report is concerned, Counsel submitted that the report of the M.V. Inspector is dated 1-5-1993 whereas the accident took place on 29-4-1993. Counsel submitted that by the time the Motor Vehicle Inspector visits the accident spot for preparing the sketch-map of the incident, the vehicles involved in the accident could not have been kept in the same position as the two vehicles were separated and positioned at a place so as to provide free flow of other vehicular traffic. It is, therefore, submitted that Ex.A5 cannot be a basis for the purpose of assuming and presuming the manner in which the accident took place. Learned senior Counsel nextly contended that the driver of the offending lorry who caused the accident was not examined by the appellant Had the driver of the lorry been examined, the truth or otherwise of the evidence of PW2 could have scrutinised. Counsel contended, non-examination of the driver of the lorry by the appellant would give rise to an inference that he is at fault. Counsel, therefore, submitted that the well considered finding of the Tribunal that the lorry was driven in a rash and negligent manner which caused the accident resulting in the death of the deceased, cannot be disturbed in this appeal.
25. As to the quantum of compensation, learned senior Counsel submitted that for
the assessment year 1992-93, the income tax return under Ex.A16 showed that the deceased declared his income to the tune of Rs. 27,75,480/-, for the assessment year 1993-94 under Ex.A24, the declared income of the deceased is Rs. 12,85,751/-towards his share of profits from two companies and Rs. 90,000/- remuneration from Krishna Construction Company. According to the Counsel, Section 10(2-A) of the Income Tax Act, the said amount of Rs. 12,85,751/- was exempted and on this remuneration of Rs. 90,000/- tax was paid. It is submitted that in the pleadings as well as in the evidence of PW1, the claimants have brought to the notice of the Tribunal that the deceased was a young man of 38 years at the time of his death, having lucrative business both in construction activities and share-holdings in several companies. Counsel also stated that having regard to the income of the deceased, the claimants were justified in claiming Rs. Two crore compensation, but the Tribunal on an erroneous appreciation of the evidence adduced by the claimants, granted only an amount of Rs. 98,40,500-00. Counsel also submitted that as per the formula fixed in Bhagawan Das v. Mohd Arif, 1987 (2) ALT 137, the relevant multiplier in this case should have been 16 instead of 14 as applied by the Tribunal. Counsel also stated that the deduction of Rs. 5 lakhs towards personal expenses of the deceased by the Tribunal is also on a higher side and the same cannot be sustained. Counsel, therefore, pleaded this Court to award the total compensation of Rs. Two crores as claimed by the claimants by allowing the cross-objections.
26. In the wake of the above submissions, the points that arise for our consideration are:
(1) Whether the deceased V. Raj Kumar died in the motor accident that took place on 29-4-1993 on account of the rash and negligent driving of the lorry AAC 7477 by its driver?
(2) What is the quantum of compensation that could be awarded to the respondent-claimants/cross-objectors?
27. On behalf of the claimants, PWs.1 to 3 were examined and Exs.A1 to A26 were marked PW1 is the wife of the deceased who spoke about the avocation of the deceased and his earnings from year to year. She deposed that the deceased was contributing around Rs. 12 lakhs per annum for the benefit of the family and they were maintaining high standard of life. She also deposed to the fact of the age of the deceased at 38 years at the time of his death as if reflected under Ex.A7 which is the date of birth certificate.
28. PW2, aged about 61 years, who is stated to be an eye-witness to the incident, deposed that he is a resident of Kalraodpally village and lives by doing agriculture. He deposed that on the date of accident, around 1-30 p.m., he noticed the accident from a distance of two to three yards. He deposed that he found a car coming from Chittoor towards Tirupati side and also found a lorry coming from Tirupati side to Chittoor driven in a rash and negligent manner on the wrong side and dashed against the car which was coming slowly. PW2 deposed that people gathered near the spot where the accident took place and the police was informed about the incident. In his cross-examination, PW2 stated that his house is situated 20 yards away from the place of the accident. He stated that police came to the spot and prepared a sketch showing the scene of offence.
29. On behalf of the respondents in the OP neither the driver nor the owner of the offending vehicle participated in the proceedings by filing counter or examining witnesses or by producing any documents. However, on behalf of the Insurance company, PW2 was cross-examined. Though PW2 was subjected to cross-examination, nothing has been elicited to discredit his testimony. The categorical evidence of PW2 on the factum of the incident, in the circumstances, has to be accepted.
30. It is submitted by Sri Challa Seetaramaiah, learned senior Counsel appearing on behalf of the appellant that as per Ex.A5 Motor Vehicle Inspector’s report, the damage caused to the car and the position of the car on the wrong side of the road would indicate that the car was coming on wrong direction on account of which the accident took place though is suggestive of the fact of negligence on the part of the deceased who was driving the car, however, we are not inclined to accept this contention inasmuch as a scrutiny of Ex.A5 indicates that it was prepared on 1-5-1993, whereas the accident took place on 29-4-1993. As per the evidence of PW2 who is the eye-witness to the incident, the offending lorry came on the wrong side and hit the car which was coming slowly, as a result of which the car went into the front portion of the lorry and with the assistance of the people gathered there, both the vehicles were got separated. He also deposed that Raj Kumar was driving the car and one Raju was sitting by the side of Raj Kumar. When they tried to remove the bodies after the accident, the doors of the car were shut due to the accident and by using crow-bars and hawksaw blades, they could able to open the doors of the car and removed the bodies. PW2 was not cross-examined on this aspect. Therefore, it is clear that after the accident, the people who gathered at the spot have pulled the car which was rammed inside the lorry. In that process, it is quite possible that the car was taken to the other side of the road which is only 20 feet in width. It is also natural that
when accidents occur on main roads, the vehicles involved in such accidents cannot be kept at the same spot and would be moved to a side of the road so as to allow free flow of traffic. In this case, as the Motor Vehicle Inspector inspected the vehicles involved in the accident only on 1-5-1993 by which time, in all probability, the two vehicles were moved from the spot of the accident to a side of the road. It is, therefore, difficult for us to place reliance on the report of the M.V. Inspector which was prepared only on 1-5-1993 i.e., one and half a day after the accident having taken place.
31. It is contended on behalf of the appellant that the maxim res ipsa loquitur would apply to the facts of the case, as under Ex.A5, the position of the vehicles were indicated would speak about the contributory factor of negligence in driving the car by the deceased. That apart, according to the learned senior Counsel for the appellants, non-examination of the driver of the car who was sitting in the carat the time of the accident, who could have been the best witness to narrate the incident, reasonable presumption has to be drawn that the claimants are withholding important piece of evidence deliberately.
32. We do not think, the maxim res ipsa loquitur could be made applicable in the facts of the case. PW23 an eye-witness to the accident spoke in so uncertain terms that the accident took place only on account of the rash and negligent driving of the offending lorry by its driver. Interestingly, the driver of the offending lorry has neither filed any counter in the OP nor was examined to support the version of the appellant that the deceased alone was negligent for causing the accident. The driver of the offending lorry is also a material witness who could have thrown any amount of light about the manner in
which the accident had taken place. The claimants have discharged their burden of proving that the accident had taken place on account of the rash and negligent driving of the offending lorry by its driver. Therefore, non-examination of the driver of the offending lorry would only lead to an inference that on account of his rash and negligent driving of the offending lorry, the accident took place due to which the deceased and another lost their lives. Having regard to the facts and circumstances of the case and in the light of the categorical evidence of PW2 who is an eye-witness to the accident, we are inclined to hold that the maxim res ipso loquitur has no application to the facts of this case.
33. Having regard to our discussion in the foregoing paragraphs and in view of the trustworthy evidence of PW2, we are inclined to hold that the accident took place only due to rash and negligent driving of the offending lorry AAC 7477 by its driver and there is no negligence on the part of the deceased. Point No. 1 is answered accordingly.
34. Now, the issue remains to be examined is what is the amount of compensation for which the claimants are entitled to.
35. Section 168 of the Motor Vehicles Act, 1988 provides for awarding of compensation by the Tribunals. The Tribunals are required to make an award determining the amount of compensation which appears to be just and specifying the person or persons to whom the compensation shall be paid. It is also provided that the Claims Tribunal shall specify the amount which shall be paid by the Insurer or owner or driver of the vehicle by all or any of them, as the case may be.
36. In this case, as per the evidence of PW1 who the wife of the deceased, her
husband was contributing about Rs. 12 lakhs per annum towards maintenance of the family. The claimants have also placed Exs.A16 and A17 which are the income tax assessment orders of the deceased for the years 1992-93 and 1993-94. For the assessment year 1992-93, the deceased has declared his income at Rs. 27,75,480/-. Whereas for the assessment year 1993-94 under Ex.A24, an amount of Rs. 12,85,751/-was declared as his income from the partnership firm and Rs. 90,000/- towards his salary. As provided under Section 10(2-A) of the Income Tax Act, the amount of Rs. 12,85,751/- received by the deceased from the partnership firm is exempted from tax and the amount of Rs. 90,000/- received by him towards salary alone was taxed for the assessment year 1993-94.
37. CMP No. 21512 of 2000 is filed by the appellant seeking to receive the documents viz., search report given by company secretary, certified copy of the list of directors of Suvarna Cements Limited, the letter given by the Registrar of Firms in Form-A, certified copies of the partnership deeds of Vijaya Engineering Company and Krishna Construction Company, as additional evidence and they be marked as Ex.B1 to B5. Another application in CMP No.8087 of 2001 was filed under Order 41, Rule 27 CPC seeking to receive the document dated 20-2-2001 given by the Joint Commissioner of Income Tax Department as additional evidence and mark the same as Ex.B6. Counter have been filed on behalf of respondents/cross-objectors/claimants to these petitioners. In the circumstances of the case, we allow these two CMPs and receive the said documents and mark them as Ex.Bl to B5 and B6 respectively.
38. In CMP No.8087 of 2001, the proceedings dated 20-1-2001 issued by the Joint Commissioner of Income Tax Department, Assessment, Special Range-3, Hyderabad showing the income declared
by the deceased for different assessment years, details of which are indicated thus:
Assessment Year Income declared
1990-91 Rs. 38,260/-
1991-92 Rs. 39,500/-
1992-93 Rs. 27,75,480/-
1993-94 Rs. 90,000/-
39. On behalf of the claimants, under Exs.A 16 and A24, the assessments orders filed before the Tribunal below indicate the income declared by the deceased for the assessment years 1992-93 and 1993-94.
40. In General Manager, Kerala Road Transport Corporation’s case (supra), the Supreme Court while holding that the multiplier method of computation is proper, logical, sound and well-established method, further held that the determination of compensation must be just, fair and reasonable. The Supreme Court observed thus:
“The determination of the quantum of compensation must answer what contemporary society ‘would deem to be a fair sum such as would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair things.’ The amount awarded must not be niggardly since the ‘law values life and limb in a free society in generous scales.’ All this means that the sum awarded must be fair and reasonable by accepted legal standards.
For assessment of damages to compensate the dependents, it has to take into account many imponderable e.g., the life expectancy of the deceased and the dependents, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during the period, the chances that the deceased may not have lived or the dependants may not live up to the
estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether.”
41. Keeping the above principles in view we shall now proceed to decide the amount of compensation for which the claimants are entitled to.
42. Admittedly, the deceased was aged 38 years at the time of his death in the accident. The deceased was claimed to be a businessman besides a contractor. As indicated above, the claimants have marked Exs.A16 and A24 income tax assessment orders to show the income declared by the deceased during the years 1992-93 and 1993-94. In case where the deceased is a businessman or a contractor, in order to assess the compensation in the event of his death, the claimants shall place such material before the Tribunal showing the income of the deceased spreading over few years which would reflect whether the income of the deceased is steady for the years. PW1 the wife of the deceased has not filed any information regarding the pending contract works of the deceased at the time of his death. On the contrary, the certified true copies of the IT Returns of the deceased placed on behalf of the appellant in CMP No. 8087 of 2000, (marked as Ex.B6) indicate that for the years 1990-91 and 1991-92, the income declared by the deceased was Rs. 38,260/-and 39,500/- respectively. Thus, on a scrutiny of the said document Ex.B6 would indicate that the income of the deceased over the years preceding his death was not steady. The Tribunal though found under Ex.A24 that the income of the deceased was shown at more than Rs. 13 lakhs, but discarded it while determining the compensation on the ground that the deceased was a sleeping partner. However, the Tribunal estimated the income of the
deceased at Rs. 12 lakhs on the basis of the testimony of PW1.
43. In our view, there cannot be any scientific method to ascertain the yearly income of persons involved in contracting works or business. The best course would be to depend upon the income declared by the parties which are assessed to tax. In this case, a perusal of the income declared by the deceased to the authorities would indicate that his income is not steady and there is a huge variation. The deceased was assessed for only two years i.e., for the years 1992-93 and 1993-94 basing on his declaration of his income. In this view of the matter, it is difficult for us to probablise the income of the deceased for the purpose of determining the dependency of the family on the deceased to award just and reasonable compensation under the head Moss of dependency’. Therefore, some guess work has to be done by us by taking into account various factors including the documents placed in CMP No. 21512 of 2000; CMP No. 8087 of 2001 and Exs. A16 and A24.
44. Having regard to the facts of the case and in the absence of the claimants placing the records indicating the steady income of the deceased spread over to some preceding years, we estimate an amount of Rs. 6 lakhs to be the income of the deceased per annum from all sources. From out of this, 173rd amount has to be deducted towards personal expenses of the deceased since he is stated to be leading a high profile life and was a member of many clubs and social organisations. The next amount of contribution of the deceased per annum for the maintenance of his family after deducting 173rd amount towards his personal expenses could be estimated at Rs. 4 lakhs. Since the deceased was aged 38 years at the time of the death, in our considered view, the Tribunal has rightly applied the multiplier 14. If
multiplier 14 is applied, the compensation under the head ‘loss of earnings’ would come to Rs. 56 lakhs (Rs.4,00,000 x 14). That apart, the claimant No. 1 shall be entitled for an amount of Rs. 15,000/- towards consortium. The claimants shall also be entitled for an amount of Rs. 15,000/- towards loss of estate. The Tribunal awarded an amount of Rs. 10,000/- towards pain and suffering. We hold that the claimants are not entitled for this amount and we accordingly disallow the same. Thus the claimants are entitled for a total compensation under different heads as under:
(a) loss of future earnings Rs. 56,00,000/-
(b) loss of consortium to the first claimant
Rs.15,000/-
(c) loss of estate Rs.15,000/- (d) love and affection from claimants 2 and 3 Rs. 10,000/- In all, the claimants are entitled to a total I compensation of Rs. 56,40,000/- on all counts to be paid by the respondents in the OP. The claimants shall also be entitled for interest at 12% per annum on the above amount from the date of filing the petition till the date of realisation as determined by the Tribunal.
45. Claimants 4 and 5 being parents of the deceased are entitled for a sum of Rs. 5 lakhs each from out of the above total compensation along with accrued interest. They are entitled to withdraw their share since they are senior citizens. Insofar as claimants 1 to 3 are concerned, claimant No. 1 being the wife of the deceased and claimants 2 and 3 being the children of the deceased, they shall be entitled to share the remaining amount of compensation equally. However, the first claimant is entitled for a sum of Rs. 15,000/- more which is the amount awarded to her for loss of consortium. The shares of the
minor claimants 2 and 3 shall be kept in fixed deposit till they attain majority in any nationalised bank as per the desire of the claimants. The first claimant is entitled to withdraw an amount of Rs. 5 lakhs from out of her share with accrued interest and the remaining shall be kept in fixed deposit in any nationalised bank according to her desires. The first claimant is also entitled to withdraw the accrued interest once in six months on the shares of claimants 2 and 3, in the event the first claimant requires any lump sum amount for the education or any other purpose of claimants 2 and 3, she shall be entitled to move the Tribunal for such withdrawal ofrequired amount. The award of the Motor Vehicle Accidents Claimant Tribunal-cum-V Additional District Judge, Tirupati, in OP No. 774 of 1993 shall stand modified as indicated above.
46. In the result, CMA No. 1726 of 1997 is partly allowed. The cross-objections filed by the claimants are dismissed.
47. Immediately after pronouncing the judgment, Sri Harinath, learned Counsel for the claimants-cross-objectors brought to our notice that the second claimant who is the son of the deceased was declared as major by this Court by an order dated 29-9-2000 in CMP No. 6478 of 2000. As a result of such declaration, the second claimant who has become major be permitted to withdraw some amount for his maintenance. In view of the submission, we have verified the records and satisfied with the submission of the Counsel for the claimants in this regard.
48. Accordingly, we permit that second claimant to withdraw an amount of Rs. Five lakhs along with accrued interest from out of the share allotted to him and the remaining amount shall be kept in fixed deposit in any nationalised bank as per the
desires of the claimant No. 2. In case of necessity, the second claimant shall be entitled to move the Tribunal for withdrawal of the required amount.