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 21.10.2005 passed in O.P.No.456 of 2002 (hereinafter referred to as 'the impugned judgment’) by the learned Chairman, Motor Vehicle Accident Claims Tribunal-cum-XXI Additional Chief Judge-cum-VII Metropolitan Sessions Judge, Red Hills, Nampally, Hyderabad (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 wife, children and aged parents of one V. Rajaiah (hereinafter referred to as ‘the deceased’) filed claim petition under Section 166 of the Motor Vehicles Act alleging that on 26.02.2002, at about 20:30 hours, while the deceased was proceeding on a bicycle from Durgam Cheruvu towards N.B.T. Kaman, near the house of H.T. Hussain, an RTC bus bearing registration No. AP-10Z-6428 (hereinafter referred to as “the offending vehicle”) being driven by its driver in a rash and negligent manner, hit the deceased from behind. As a result, the deceased sustained injury to the left side of his head and was shifted to Apollo Hospital, Jubilee hills and thereafter to Osmania General Hospital, Hyderabad, wherein the deceased succumbed to his injuries on 28.02.2002.

4. As per the claim petition, the deceased was 30 years old and earning Rs.3,500/- per month by working as a stone cutter and that the claimants were dependent on his earnings. Thus, the claimants instituted the claim petition against respondent Nos.1 and 2, claiming compensation of Rs.3,00,000/-, pleading that the untimely death of the deceased had put them to shock and mental agony which cannot be compensated in any manner.

5. The respondents filed counter denying the material averments, including the age and income of the deceased. It was contended that the driver of the offending vehicle blown the horn and alerted the cyclists, who gave way for the bus to pass but the driver heard a sound and noticed that one of the cyclists had lost balance and fell near the rear of the bus, sustaining injuries. Thus, it was contended that the driver of the bus was neither rash nor negligent and prayed to dismiss the claim petition.

EVIDENCE BEFORE THE LEARNED TRIBUNAL

6. In order to establish the claim, PWs 1 and 2 were examined and Exs.A1 to A6 were marked on behalf of the claimants. On behalf of respondents, RW1, the driver of the offending vehicle was examined and no documentary evidence was adduced.

FINDINGS OF THE LEARNED TRIBUNAL

7. The learned Tribunal, upon consideration of the oral and documentary evidence on record, awarded compensation of Rs.3,70,600/-. Aggrieved thereby, the claimants have preferred the present appeal seeking enhancement of the compensation.

8. Heard Mr.A. Sameer Kumar, learned counsel for the claimants and Ms. K. Poojitha, learned counsel representing Mr.R. Anurag, learned Standing Counsel for TGSRTC, appearing for respondent No.1. 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, the respondents did not prefer 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 PW2 coupled with documentary evidence under Exs.A1 to A3 i.e., certified copies of FIR, complaint and 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.

12. Admittedly, the claimants did not file any authenticated document to substantiate the source of income of the deceased. As per the claim petition, the income of the deceased was stated to be Rs.3,500/- per month. However, PW1, in her chief-examination, deposed that the deceased was earning Rs.4,000/- per month. Thus, there is an exaggeration in the evidence of PW1 with regard to the income of the deceased. Since there is no evidence on behalf of the claimants in proof of income of the deceased, the learned Tribunal assessed the monthly income of the deceased at Rs.2,400/- i.e., Rs.80/- per day, which is appearing to be on lower side. Nevertheless, considering the year of the accident, the nature of his occupation and the minimum wages prevailing during the relevant period, this Court is of the opinion that the monthly income of the deceased be assessed at Rs.3,500/-. Since there are eight claimants depending upon the earnings of the deceased, 1/5th of his earnings have to be deducted towards his personal and living expenses. Hence, the monthly contribution of the deceased towards his family comes to Rs.2,800/- (Rs.3,500/- - Rs.700/-).

13. Now coming to the age of the deceased and the relevant multiplier, as per the claim petition, the age of the deceased was stated to be 30 years. However the learned Tribunal assessed the age of the deceased as 35 years by placing reliance on the contradictions in the oral evidence of PWs 1 and 2 and also taking into consideration the age of PW1 and the number of children born to them. As can be seen from the observations of the learned Tribunal in the impugned judgment with regard to assessing the age of the deceased at 35 years, the said observations appearing to be made only based on the assumption and surmises. It is settled law that when there is no authenticated documentary evidence to establish the age, the medical evidence prevails. In the instant case, the claimants exhibited Ex.A4 and A5 i.e., the inquest report and PME report, which clearly indicates the age of the deceased as 30 years. Even PWs 1 and 2 categorically deposed that the deceased was aged 30 years. In such circumstances, the learned Tribunal ought to have considered the age mentioned in Exs.A4 and A5, which were issued by the qualified medical officers. Thus, the learned Tribunal erred in assessing the age of the deceased as ‘35’ years instead of ‘30’ years and as a consequence, the learned Tribunal adopted the wrong multiplier ‘17’. Thus, with the available evidence, this Court is of the considered view that the deceased was aged 30 years as on the date of the accident. The appropriate multiplier for the persons aged between 26 to 30 years is ‘17’ as per the decision of the Hon’ble Apex Court in Sarla Verma V. Delhi Transport Corporation (2009 ACJ 1298).

14. Since the deceased was working as stone cutter and aged 30 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 contribution of the deceased towards his family comes to Rs.3,920/- (Rs.2,800/- + Rs.1,120/-) and the annual contribution comes to Rs.47,040/- (Rs.3,920/- x 12 months). After multiplying the annual contribution of the deceased to his family with the relevant multiplier ‘17’ comes to Rs.7,99,680/- (Rs.47,040/- x 17).

15. As seen from the impugned judgment, the learned Tribunal awarded Rs.15,000/- towards loss of consortium and Rs.10,000/- towards loss of estate. The claimants are entitled to Rs.77,000/- (Rs.70,000/- + 10% enhancement) under conventional heads (loss of estate at Rs.15,000/-, funeral expenses at Rs.15,000/- and loss of spousal consortium at 40,000/- to claimant No.1) as per the decision of the Honourable Supreme Court in National Insurance Company Limited v. Pranay Sethi and others (2 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.2 to 5 and 8 lost their father at their young age, they are entitled to compensation under the head ‘parental consortium’. Accordingly, claimant Nos. 2 to 5 and 8 are awarded Rs.2,20,000/- (Rs.40,000/- + 10% enhancement each) towards ‘parental consortium’.

16. Thus, in all, the claimants are entitled for compensation of Rs.10,96,680/- (Rs.7,99,680/- + Rs.77,000/- + Rs.2,20,000/-).

17. Though the claimants had restricted their claim to Rs.3,00,000/-, it is well settled by the Hon’ble 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:

18. 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 and also in adopting wrong multiplier. Hence, the impugned judgment is liable to be modified to the extent of above observations.

RESULT:

19. In the result, the Appeal is allowed enhancing the compensation amount awarded by the learned Tribunal from Rs.3,70,600/- to Rs.10,96,680/-, which shall carry interest @ 7.5% per annum from the date of filing the claim application till the date of realization. The claimant No.1, being the wife of the deceased is entitled to Rs.5,96,680/-, claimant Nos.2 to 5 and 8 are awarded Rs.80,000/- each and claimant Nos.6 and 7 are awarded Rs.50,000/- each. 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.