HON'BLE SRI JUSTICE B.N .RAO NALLA M.A.C.M.A. No. 574 of 2005 DATED: 02.12.2010 Between: 1. S.Sankari 2. S.Chandana 3. S. Sai … APPELLANTs/ Claimants A N D 1. A. Venkata Rao 2. M/s.New India Assurance Co. Ltd. 3. S. Veeraswamy Reddy 4. S. Venkatamma .. Respondents JUDGMENT: This Motor Accidents Civil Miscellaneous Appeal is directed against the order dated 10.12.2004 made in M.V.O.P. No. 423 of 2002 whereby the Motor Accident Claims Tribunal-cum-III Additional District Judge, Tirupati, while allowing the petition in part granted compensation of Rs.2,22,000/- to the claimants and respondent Nos.3 and 4 against the claim of Rs.12,00,000/- together with interest at 9% p.a. from the date of the petition till the date of realization fastening liability on respondent Nos.1 and 2. For the sake of convenience, the parties will be referred to as they are arrayed in M.V.O.P. No. 423 of 2002. The facts of the case in brief are that on 02.07.2002, at about 3.00 P.M., the deceased - Thyagaraju along with his wife and children i.e. the claimants, was going on Luna Moped bearing No. AP 03 J 9588 from Tirupati to Srikalhsti and while he was proceeding on the extreme left side of the road in a cautious manner near Mittakandriga on Tirupati-Srikalahasti main road, TATA Sumo bearing No. AP 26 U 6633 belonging to the 1st respondent driven by its driver in a rash and negligent manner, dashed against the Luna Moped from behind, due to which, the deceased and the claimants fell down and sustained grievous injuries. Immediately they were shifted to SVRR GG Hospital, Tirupati for treatment, but the deceased died of injuries. The deceased was quite hale and healthy and aged 36 years on the date of accident and he was working as Secondary Grade Teacher in M.P.P.School, T.Sadamoor, Kuppam Mandal and earning Rs.1,560/- per month. It is stated that within a short period, the salary of the deceased might be increased to Rs.4,000/- per month and he used to contribute his entire income to the welfare of his family. Hence, the claimants filed the claim petition in M.V.O.P. No. 423 of 2002 seeking compensation of Rs.12,00,000/-. The 2nd respondent-New India Assurance Company Limited filed counter before the Tribunal inter alia denying all the material allegations and stated that there was contributory negligence on the part of the deceased, who was not cautious in driving his Luna Moped. The petition is bad for non-joinder of the owner of Luna Moped and its insurer. The amount of compensation claimed is very high, excessive and exorbitant. Based on the pleadings, the following issues were framed in M.V.O.P. No. 423 of 2002: 1) Whether the pleaded accident occurred resulting in the death of the deceased, and if so, was it due to the fault of the driver of Tata Sumo bearing No. AP26 U 6633 or due to the fault of the deceased himself as driver of Luna Moped bearing No. AP03 J 9588? 2) Whether the Tata Sumo in question belongs to the 1st respondent and stood insured with the 2nd respondent– insurance company by the date of accident and whether the policy covers the risk of the deceased? 3) Whether the petitioners are legal representatives of the deceased and entitled to compensation, and if so, to what amount, and from which of the respondents? 4) Whether the petition is bad for non-joinder of necessary parties? To substantiate the claim, the 1st claimant got examined herself as PW1 and got marked Exs.A1 to A5. RW1 was examined, but no documents were marked on behalf of the respondents. The Tribunal, after considering the evidence both oral and documentary, allowed the petition in part as stated supra. The learned counsel for the claimants has contended that though the deceased as a Secondary Grade Teacher was drawing monthly salary of Rs.1,560/-, but the Tribunal without considering the fact that the same could have been increased to Rs.4000/-, erroneously fixed his monthly earnings at Rs.1500/- by disregarding Ex.A5 – Salary Certificate. He relied on a decision reported in Sarla Verma (Smt.) and Others Vs. Delhi Transport Corporation and Another[1] with regard to the addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. It is further contended that during the course of testimony of PW1, though she denied that Respondent Nos.3 and 4 in M.V.O.P. No. 423 of 2002 are not the parents of the deceased-husband, the Tribunal did not believe her evidence, but having regard to the material on record, it came to the conclusion that respondent Nos.3 and 4 are the parents of the deceased, as such, awarded compensation of Rs.21,000/- each to respondent Nos.3 and 4. It is further contended that as per the observation made in Salara Verma case (cited supra) where there are dependents more than 4 to 6, 1/4th of the income of the deceased has to be deducted from monthly earnings of the deceased, and the same may be followed in this case. On the other hand, it is contended on behalf of the 2nd respondent-Insurance Company that since the parents of the deceased are not made parties in this appeal, and there are only three dependents i.e. wife and two minor children, the decision reported in Sarla Verma case may not be applicable. It is further contended that since the 1st claimant in her pleadings in M.V.O.P. averred that herself and her two children are the only dependents of the deceased- husband, now, at this stage, she cannot be permitted to turn round and say that there are five dependents of her deceased-husband. Lastly, it is contended that in case of any enhancement of the compensation, the parents of the deceased are also entitled to proportionate costs thereof. Heard the learned counsel for both the parties and perused the material placed on record. The dependents of the deceased are five in number, 1st petitioner being the wife, the 2nd and 3rd petitioners being the children and respondent Nos.3 and 4, being the parents of the deceased. Since as per Ex.A5 – salary certificate, the deceased was earning Rs.4,000/- per month as a Secondary Grade Teacher, the Tribunal ought not to have disregarded Ex.A5, as such, the Tribunal appears to have clearly erred in fixing his monthly earnings at Rs.1,500/- instead of Rs.4,000/-. Hence, this Court fixes the monthly income of the deceased at Rs.4,000/-, out of which, 1/4th is liable to be deducted since the dependents are more than four. Since the deceased was aged 36 years at the time of his death in the accident, the proper multiplier is 16 as per II Schedule of Motor Vehicles Act, 1988. When the multiplier method is applied, though the deceased was below 40 years at the time of the accident, addition of 50% of the actual salary to the income of the deceased, may not be appropriate. Thus, Rs.4,000/- -- Rs.1000/- (1/4th) = Rs.3,000/- p.m. Therefore, Rs.3000/- x 12 = Rs.36,000/- x 16 = Rs.5,76,000/-. However, the 1st appellant, who is the wife of the deceased is entitled to a sum of Rs.10,000/- towards loss of consortium instead of Rs.30,000/- as per the decision reported in Sarla Varma Case. Hence, the appellants are entitled to a total compensation amount of Rs.5,86,000/-, out of which, respondent Nos.3 and 4 in M.V.O.P. No. 423 of 2002, who are the parents of the deceased, are entitled to a sum of Rs.25,000/- each and rest of the amount excluding the consortium of Rs.10,000/- in favour of the wife, shall be apportioned equally among the 1st appellant – wife and her children. It is made clear that the wife of the deceased is exclusively entitled to receive a sum of Rs.10,000/- in addition to her equal share along with her children. With the above modification of the impugned order dated 10.12.2004, this appeal is allowed in part. However, the rate of interest at 9% p.a. as awarded by the Tribunal is hereby reduced to 7.5% on the enhanced amount in view of the decision rendered by the Apex Court and other decisions. No order as to costs. _________________ B.N. RAO NALLA, J 2nd December, 2010 bcj [1] (2009) 6 SCC 121