1. This appeal, preferred under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'), is directed against the judgment and decree dated 04.04.2008 passed in O.P.No.1430 of 2003 (hereinafter referred to as 'the impugned judgment’) by the learned Chairman, I Additional Motor Accidents Claims Tribunal, Nizamabad (hereinafter referred to as 'the learned Tribunal') seeking enhancement of compensation awarded by the learned Tribunal.

2. For the sake of convenience, the parties are hereinafter referred to as per their status before the learned Tribunal.

FACTS IN BRIEF

3. The case of the claimants, as borne out from the record, is that the claimants, being the parents of one Bonta Srinivas (hereinafter referred to as ‘the deceased’) filed claim petition under Section 166 of the Motor Vehicles Act alleging that on 15.05.2002, at about 7:30 a.m., while the deceased was proceeding slowly and cautiously on his bicycle, near Kammajiwadi Shivar, a jeep bearing registration No.AP25/F 8490, being driven by its driver in rash and negligently at high speed, lost control and dashed against the bicycle of the deceased. As a result, the deceased sustained multiple fractures and crush injuries to the skull, right wrist, left hand, waist and right ankle, along with other grievous injuries and died on the spot.

4. As per the claim petition, the deceased, who was aged 18 years, was working as a stone cutter and building material supplier on contract basis, earning Rs.15,000/- per month. Therefore, the claimants being dependent on the earnings of the deceased, filed the claim petition against respondent Nos.1 and 2, seeking compensation of Rs.4,00,000/-, pleading that the untimely death of the deceased had put them to shock and mental agony, which cannot be compensated in any manner.

5. Respondent No.1/owner/insured of the offending vehicle did not contest the claim petition and was accordingly set ex parte. Respondent No.2, the insurer, filed a counter denying the material averments including the age and income of the deceased etc. It is further contended that the claim of the claimants is excessive and arbitrary and prayed to dismiss the claim petition.

EVIDENCE BEFORE THE LEARNED TRIBUNAL

6. In order to establish the claim, PWs1 and 2 were examined and Exs.A1 to A3 were marked on behalf of the claimants. On behalf of respondent No.2, RW1 was examined and Exs.B1 to B4 were marked.

FINDINGS OF THE LEARNED TRIBUNAL

7. The learned Tribunal, upon consideration of the oral and documentary evidence on record, awarded compensation of Rs.2,00,000/-. Aggrieved thereby, the claimants have preferred the present appeal seeking enhancement of the compensation.

8. Heard Mr.Lakkadi Dayakar Reddy, learned counsel for the claimants and Mr.Ch. Venkat Narayana, learned counsel for respondent No.2. Respondent No.1/owner of the offending vehicle was set ex parte before the learned Tribunal and has not entered appearance in this appeal either. The material available on record has been perused.

POINT FOR DETERMINATION:

9. On considering the rival contentions, the only point that arises for determination in the present appeal is:

               “Whether the appellants/claimants have made out any valid and sustainable grounds for enhancement of compensation awarded by the learned Tribunal and consequent interference with the impugned judgment?”

ANALYSIS:

10. Admittedly, neither of the respondents preferred any appeal challenging the impugned judgment. There is no dispute with regard to the manner of the accident, as the learned Tribunal while considering the oral evidence of PWs 1 and 2 coupled with documentary evidence under Ex.A1 i.e., attested copy of charge sheet, answered issue No.1 by holding that the accident occurred due to the rash and negligent act on the part of driver of the offending vehicle.

11. The prime contention of the learned counsel for the claimants is that the learned Tribunal erred in considering the income of the deceased on lesser side. It is further contended that the learned Tribunal failed to consider the future prospects and growth in the income of the deceased.

12. Admittedly, the claimants did not file any authenticated document to substantiate the source of income pertaining to the deceased. As per the claim petition, the income of the deceased was shown as Rs.15,000/- per month as stone cutter and building material supplier. However, in the calculation memo filed by the learned counsel for the claimants, the income of the deceased is shown at Rs.5,000/- per month. As per the averments of the charge sheet under Ex.A1, the deceased was working as a servant under one Kummari Sangaiah, whose occupation was stated to be agriculture. Ex.A1 does not disclose that the deceased was engaged as a buildingmaterial supplier or stone cutter on a contract basis. In fact, it is highly improbable to even suggest that a 14-year-old boy would be engaged in such an occupation on a contractual basis. It is also significant that PW.1, in his cross-examination, admitted that the deceased had studied up to VIII Standard. PW.1 further admitted that, as per the FIR, the age of the deceased was mentioned as 14 years. It is pertinent to note that Ex.A1 was filed by the police after investigation in Crime No.47 of 2022 of Sadasivnagar Police Station, which was registered on the basis of a complaint lodged by the elder brother of the deceased. The complainant in Crime No.47 of 2022, being the elder brother of the deceased, was in a position to furnish the age and other particulars of the deceased. Significantly, the age of the elder brother of the deceased was shown as 19 years in Ex.A1. Having regard to the age of the elder brother, the academic record of the deceased and the age recorded in the FIR and charge sheet, there is sufficient proximity in the circumstances to hold that the deceased was still a student as on the date of the accident. Therefore, the contention that the deceased was working as a stone cutter cannot be accepted. The evidence on record, particularly Ex.A1 and the admissions made by PW.1 in cross-examination, does not support the claim that the deceased was earning an income by working as a stone cutter or building-material supplier.

13. The learned counsel for the claimants, however, placed reliance upon the decision of the Honourable Supreme Court in Kishan Gopal and another v. Lala and others ((2014) 1 Supreme Court Cases 244), wherein it considered an annual notional income of Rs.30,000/- in respect of a deceased child aged 10 years. Thus, there is ambiguity in the version of the claimants as to whether the deceased was a student, servant, stone cutter or building-material supplier, particularly with regard to his alleged earnings. In view of the discrepancies with regard to the age and avocation of the deceased, the claim of the claimants that the deceased was earning Rs.5,000/- per month, as stated in the calculation memo, or Rs.15,000/- per month, as stated in the affidavit, cannot be accepted. Considering the year of the accident, the age of the deceased and the principle laid down by the Honourable Supreme Court in Kishan Gopal’s case (supra), this Court has no other option except to assess the notional income of the deceased at Rs.30,000/- per annum. So far as the deduction towards personal and living expenses of the deceased is concerned, the deceased was a minor and a non-earning member. Therefore, there is no occasion to deduct any amount towards his personal and living expenses. In Kishan Gopal’s case (supra), after fixing the notional income of the minor deceased, the Hon’ble Supreme Court applied the appropriate multiplier and treated the entire amount as the loss of dependency, without making any deduction towards the personal expenses of the deceased.

14. In view of the aforesaid discussion, this Court is of the considered view that no deduction towards personal and living expenses can be made from the notional income of the minor deceased.

15. Now coming to the age of the deceased and the relevant multiplier, the learned Tribunal assessed the age of the deceased as 14 years, placing reliance upon Ex.A2, i.e., the PME report, and accordingly adopted the multiplier of ‘15’. The learned counsel for the claimants contended that the deceased was aged 18 years as on the date of the accident. However, the claimants failed to produce any documentary evidence to substantiate the said age. On the contrary, as stated supra, PW.1 admitted in his cross-examination that the age of the deceased was mentioned as 14 years in the FIR. In the absence of any documentary evidence produced by the claimants to establish that the deceased was aged 18 years and having regard to the admission of PW.1 in his cross-examination, the mere contention that the deceased was aged 18 years cannot be accepted. Therefore, the age of the deceased as assessed by the learned Tribunal, based upon Ex.A2-PME report, is found to be just and proper. Consequently, the adoption of the multiplier ‘15’ by the learned Tribunal is also in accordance with the decision of the Honourable Supreme Court in Sarla Verma V. Delhi Transport Corporation (2009 ACJ 1298).

16. Since the deceased was self employed and aged about 14 years, future prospects at 40% is required to be considered as per the principle laid down in National Insurance Company Limited v. Pranay Sethi and others (2017 ACJ 2700). After addition of 40% towards future prospects, the annual contribution of the deceased towards his family comes to Rs.42,000/- (Rs.30,000/- + Rs.12,000/-). After multiplying the annual contribution of the deceased to his family with the relevant multiplier ‘15’ comes to Rs.6,30,000/- (Rs.42,000/- x 15).

17. As seen from the impugned judgment, the learned Tribunal awarded Rs.48,000/- towards love and affection and Rs.2,000/- towards funeral expenses, which is without any basis. The claimants are entitled to Rs.33,000/- (Rs.30,000/- + 10% enhancement) under conventional heads (loss of estate at Rs.15,000/- and funeral expenses at Rs.15,000/-) as per the decision of the Honourable Supreme Court in Pranay Sethi’s case (supra). In view of the law laid down by the Honourable Supreme Court in Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others ((2018) 18 SCC 130) and since the claimant Nos.1 and 2 lost their son, they are entitled to compensation under the head ‘filial consortium’. Accordingly, claimant Nos.1 and 2 are awarded Rs.88,000/- (Rs.40,000/- + 10% enhancement each) towards ‘filial consortium’.

18. Thus, in all, the claimants are entitled for compensation of Rs.7,51,000/- (Rs.6,30,000/- + Rs.33,000/- + Rs.88,000/-).

19. Though the claimants had restricted their claim to Rs.4,00,000/-, it is well settled by the Honourable Supreme Court in Nagappa v. Gurudayal Singh and others (2003 ACJ 12) that there is no restriction that the compensation awarded by the Tribunal or the Court should invariably be limited to the amount claimed in the claim petition, provided the claimant is otherwise found entitled to such compensation on the basis of the evidence available on record.

CONCLUSION:

20. In view of the above discussion, this Court is of the considered opinion that the learned Tribunal erred in assessing the monthly income of the deceased on lesser side. Hence, the impugned judgment is liable to be modified to the extent of above observations.

RESULT:

21. In the result, the Appeal is allowed enhancing the compensation amount awarded by the learned Tribunal from Rs.2,00,000/- to Rs.7,51,000/-, which shall carry interest @ 7.5% per annum from the date of filing the claim application till the date of realization. The claimants, being the parents of the deceased are awarded the said amount equally. The respondents are jointly and severally liable to deposit the compensation amount within two (02) months from the date of receipt of a copy of this judgment. On such deposit, the claimants are entitled to withdraw entire compensation awarded to them along with accrued interest without furnishing any security, however, subject to deposit of deficit court fee on the enhanced compensation amount. In the circumstances of the case, there shall be no order as to costs.

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