JUDGMENT
C.Y. Somayajulu, J.
1. Appellants 1 to 5, who are the widow, children and mother of K. Subbarayudu (deceased) filed a claim petition under the provisions of the Motor Vehicles Act, 1988 (the Act), seeking compensation of Rs. 6,73,000/-, from the respondents, who are the owner and insurer of the lorry bearing No. AAQ-2586, alleging that the deceased, who was aged about 48 years, earning about Rs. 60,000/- p.a. died due to the rash and negligent driving of the driver of the lorry belonging to the first respondent while he was proceeding on motor cycle on 17-05-1995 at about 7.30 p.m.
2. First respondent chose to remain ex parte.
3. Second respondent filed its counter inter alia putting the appellants to proof of the averments in the petition.
4. In support of their claim, appellants examined the first appellant as P.W.1 and two other witnesses as P.Ws.2 and 3 and marked Exs.A.1 to A.8. No oral evidence was adduced on behalf of the second respondent but Ex.B.1 was marked by consent.
5. The Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the lorry belonging to the first respondent and awarded Rs. 1,12,600/- as compensation to appellants 1 to 3 and 5. Dissatisfied with the compensation awarded to them, the claimants preferred this appeal.
6. During the pendency of this appeal, the 5th appellant died and so, appellants 6 to 8 are brought on record as her legal representatives.
7. MA.CMA.MP.Nos. 5081 and 6015 of 2006 are filed to receive certain documents as additional evidence in the appeal.
8. Since this is an appeal by the claimants seeking higher compensation than that was awarded by the Tribunal and since the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of the lorry belonging to the first respondent has become final, the only point for consideration is to what compensation are the appellants entitled to.
9. The contention of the learned Counsel for the appellants is that the Tribunal was in error in not taking into consideration the fact that the appellants have sustained a heavy loss in their earnings due to the sudden demise of the deceased and so, the Tribunal was in error in computing the income of the deceased at Rs. 1,200/- p.m. without taking into consideration the voluminous documentary evidence adduced, and contended that the Tribunal was also error in awarding Rs. 5,000/- towards loss of consortium to the first appellant and was also error in not awarding any compensation towards non- pecuniary damages. He contended that the documents produced along with petitions filed under Order 41 Rule 27 of the Code of Civil Procedure clearly establish that the appellants have lost a huge amount of profits. It is his contention that those documents could not be produced before the Tribunal by oversight and so, the documents may be received as an additional evidence.
10. The contention of the learned Counsel for the second respondent is that since the Tribunal gave cogent reasons for its conclusion and since the first respondent was taken as a partner, it cannot be said that the appellants have suffered any pecuniary loss due to the death of the deceased and so, in the facts and circumstances of the case, the compensation awarded can be said to be just and reasonable.
11. Since some of the documents produced by the appellants along with MA.CMA.MP.Nos. 5081 and 6015 of 2006 are certified copies of the income tax returns etc. filed by the firm, they can be received as additional evidence. Hence petitions are partly allowed and in MA.CMA.MP. No. 5081 of 2006, Exs.A.9 to A.14 are marked and in
MA.CMA.MP. No. 6015 of 2006, Exs.A.15 to A.20 are marked.
12. The Tribunal on the ground that the fourth appellant is the married daughter of the deceased dismissed her claim, but, inasmuch as Section 166 of the Act contemplates the petition being filed by the legal representatives of the deceased victim, fourth respondent being the legal representative of the deceased also is entitled to compensation.
13. The evidence of PW.1-first appellant is that the deceased was doing rice business under the name and style of Nandieswara Industry and Anantha Padmanabha Traders in partnership with others and was the managing partner of these firms having 34% share and was earning about Rs. 60,000/- p.a. from those businesses and was contributing the same to them. During cross-examination, she stated that the firms in which the deceased was a partner was earning profits every year and that he was an income tax assessee.
14. The evidence of P.W.2 is not relevant for deciding the point for consideration because he who is an eye-witness to the accident did not speak anything of the income of the deceased.
15. P.W.3 is the Income-Tax Inspector, who gave evidence in pursuance of the summons issued to the income tax officer, produced the income tax returns relating to the Nandieswara Industry for the years 1992-93, 1993-94 and 1994-95, and gave evidence about the income on the basis of the income tax returns submitted without marking them. Since certified copies of those documents are produced now as additional evidence, it is not necessary to consider his oral evidence as the documents can be looked into.
16. Ex.A.15 is the income tax assessment order and Ex.A.16 is the income tax return for the assessment year 1996-97 relating to Nandieswara Industries. Ex.A.16 shows that the first appellant was taken in as a partner in the place of the deceased during that accounting year giving her 34 paise share, which the deceased was having and that the remaining three partners i.e. brothers of the deceased, were having 22 paise share each and the income returned by the firm was Rs. 9,167/- and that the share of profits accrued to the deceased for the year ending 31-03-1996 was Rs. 16,057/- and that that amount was transferred to the account of the first appellant and the share of profit of first appellant for the year ending 31-03-1996 was Rs. 26,340.11ps. i.e. apart from the profit of the deceased transferred to her share. Ex.A.17 is the income tax return for the year ending 31-03-1997 for the assessment year 1997-98. It also shows that the first appellant was having a share of 34 paise in the partnership of Nandieswara Industry and that her brothers-in-law i.e. brothers of the deceased were having 22 paise share each and her share of profit for the assessment year 1997-98 was Rs. 1,973.94 ps. and profits for three other remaining partners were Rs. 1,277.26 ps. each. The income tax assessment order for that year is not produced by the appellants. Ex.A.18 is the income tax assessment order for the assessment year 1998-99 i.e. accounting year ended 31-03-1998, which shows that the firm returned a total income of Rs. 18,820/- and paid income tax of Rs. 6,900/-. Ex.A.19 is the statement of income of partners which shows that each partner in the firm i.e. Kuruva Thirumalamma, first appellant and her brothers-in-law i.e. brothers of the deceased were having 25 paise share each in the partnership and the profit for the assessment year 1998- 99 was Rs. 4,705.45 ps. to each sharer. Ex.A.20 is the partnership deed dated 01-04-1997 entered into between the brothers-in-law of the first appellant and the first appellant redefining their shares as 25 paise. each and nominating K. Subba Rao and K. Nageswara Rao as the working partners of the firm.
17. Since Ex.A.9 income tax assessment order for the assessment year 1993-94 shows that the firm-Nandieswara Industry returned a total income of Rs. 2,982/- for that accounting year and since Ex.A.11, income tax assessment order for the assessment year 1994-95 shows that the said firm returned an income of Rs. 4,701/- and since Ex.A.13, income tax assessment order for the assessment year 1995-96 of the firm-Nandieswara Industry, shows the income of the firm as Rs. 6,777/- and since Ex.A.15, the income tax assessment order for the assessment year 1996-97 shows that the firm returned an income of Rs. 9,167/-, it is clear that after the death of the deceased, the firm did not suffer any loss in its income. On the other hand, it had more income than its income in the previous year i.e. assessment year 1995-96 during which its profit was Rs. 6,777/- and its income, during the assessment year 1996-97, was Rs. 9,167/-.
18. First appellant admittedly was taken in as a partner and was being given the profit in the business of the firm. So it cannot be said that the appellants have lost any substantial income from the firm due to the death of the deceased. May be first appellant, probably because of being a lady, was not given the responsibility of being a managing partner and her brothers-in-law have taken upon themselves the responsibility of managing the affairs of the firm, but as there is no dwindling in the profits of the appellants, keeping in view the fact that the accident occurred in the year 1995, the monetary loss that might have been caused to the appellants due to the death of the deceased can be taken as R.1,000/- p.m. being the contribution of the deceased to the appellants, which would have been their additional income apart from the income the appellants are receiving after the first appellant became the partner of the firm. So the pecuniary loss would be around Rs. 12,000/- p.a.
19. Ex.A.6, partnership deed, dated 07-08-1991, shows the age of the deceased as 45 years. The accident took place in 1995 i.e. four years later. So, the deceased was aged around 50 years by the time of death. As per Schedule II, the multiplier for a person aged between 50 to 55 years is ’11’. Obviously that is the reason why the Tribunal took the multiplier as ’11’. So the pecuniary damages payable to the appellants would come to Rs. 1,32,000/- (Rs.12,000/- x 11).
20. I find force in the contention of the learned Counsel for the appellants that the Tribunal was in error in not awarding due compensation for loss of consortium. In view of the ratio in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas 1994 (1) ALT (SC) 1, the first appellant can be awarded Rs. 15,000/- towards loss of consortium.
21. When the multiplier in Schedule II is taken into consideration for arriving at the compensation payable, it is really not necessary to award non- pecuniary damages. But in the facts and circumstances of the case, the appellants can be awarded non-pecuniary damages of Rs. 21,000/- besides funeral expenses of Rs. 2,000/- as awarded by the Tribunal.
22. Thus appellants are entitled to Rs. 1,32,000/- + Rs. 15,000 + Rs. 21,000/- + Rs. 2,000/- = Rs. 1,70,000/- as compensation for the death of the deceased. The point is answered accordingly.
23. In the result, the appeal is allowed in part and an award is passed for Rs. 1,70,000/- with interest at 12% p.a on Rs. 1,12,600/- from the date of petition till the date of deposit as awarded by the Tribunal and with interest at 9% p.a., on Rs. 57,400/-, awarded in this Court, from this date till the date of deposit into the Court with proportionate costs in the Tribunal. Rest of the claim of the appellants is dismissed without costs. From out of the said amount, first appellant is entitled to Rs. 46,000/- and interest thereon. Appellants 2 to 4 are each entitled to Rs. 31,000/- and interest thereon. The compensation of Rs. 31,000/- due and payable to the 5th appellant if not withdrawn by her during her life time shall be shared by appellants 6 to 8 and appellants 2 to 4 together as one share Parties are directed to bear their own costs in this appeal.