THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.Nos.4645 & 811 of 2008 COMMON JUDGMENT: M.A.C.M.A.No.4645 of 2008 is directed against the order, dated 06.09.2007, in O.P.No.2832 of 2005 on the file of the learned Chairman, Motor Vehicles Accidents Claim Tribunal-cum-III Additional Chief Judge, City Civil Judge, Hyderabad, wherein the said claim application filed by the respondents 1 to 5 herein was allowed in part awarding compensation of Rs.4,15,700/- with interest @ 7.5% p.a. from the date of the petition. 2. M.A.C.M.A.No.811 of 2008 is filed by the claimants seeking enhancement of the compensation. 3. Heard both sides. Perused the record. 3. As both the appeals arise out of the same judgment and between the same parties, they are heard together and are being disposed of by this common judgment. 4. Claimants filed O.P.No.2832 of 2005 under Section 166 of the Motor Vehicles Act, 1988, seeking compensation of Rs.6,00,000/- for the death of the deceased-Mohd.Vasiuddin. 1st claimant is the wife; claimants 2 and 3 are the parents; 4th claimant is the brother and 5th claimant is the minor son of the deceased. According to the claimants, the deceased, who was an auto driver, was proceeding in his auto bearing No.AP 24U 3868 on 25.09.2005 and near Hayathnagar, the lorry bearing No.AP 9T 6628, driven in a rash and negligent manner by its driver, dashed against the auto from the rear side resulting in multiple injuries to the deceased, who died while being taken to Osmania General hospital. It is further pleaded that the deceased was aged 28 years and was earning Rs.4500/- per month besides Rs.150/- per day as batta as the driver of the auto. 5. The owner of the lorry filed counter inter alia contending that when the offending vehicle was parked at Autonagar godown some unknown persons committed theft of the same and he gave a complaint to the police on 26.09.2005 based on which First Information Report was registered in Cr.No.436 of 2005 and the vehicle was produced before the Court and the owner has taken delivery of the same through Court. He would therefore contend that the accident has not occurred while the vehicle was under his control and therefore he is not liable to pay the compensation. The insurer filed a counter inter alia contending that the driver of the lorry was not having valid driving licence at the time of the accident. 6. During enquiry before the Tribunal, P.Ws.1 to 3 were examined and Exs.A1 to A5 were marked on behalf of the claimants. R.Ws.1 and 2 were examined and Exs.B1 to B9 were marked on behalf of the insurer. 7. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the lorry by its driver, and the owner and insurer are jointly and severally liable to pay the compensation. The Tribunal further held that the claimants are entitled to Rs.4,15,700/-. Accordingly, award was passed with interest @ 7.5% p.a. from the date of the petition. Assailing the same, the insurer filed M.A.C.M.A.No.4645 of 2008 and not satisfied with the award, claimants preferred M.A.C.M.A.No.811 of 2008, seeking enhancement of the compensation. 8. The main contention of the learned counsel for the appellant-insurer is that at the time of the accident the vehicle was not under the control of the owner as the same was committed theft by some unknown persons as can be seen from the copy of the First Information Report-Ex.B6. Admittedly, the policy of the insurance- Ex.B1 was in force as on the date of the accident. 9. It is well settled that the insurance goes along with the vehicle and irrespective of whether the vehicle is under the control of the owner or not at the time of the accident, the owner would be liable for payment of the compensation when the accident has occurred while the vehicle was put to use. There is nothing on record to show that there has been any violation of the terms and conditions of the policy by the owner of the vehicle. Even according to the owner, he gave complaint to the police about the theft of the vehicle on 26.09.2005 based on which First Information Report-Ex.B6 was registered but the accident has occurred on 25.09.2005 even before the alleged theft of the vehicle. Even otherwise, the alleged theft of the vehicle does not make any difference as the accident occurred while the vehicle was under use and while the policy was in force. Though the insurer alleges that the driver was not having any valid driving licence, there is absolutely nothing on record to substantiate the said plea. Under those circumstances, the finding of the Tribunal that the owner and insurer are both jointly and severally liable to pay the compensation does not call for any interference. 10. Regarding the quantum, though the claimants have pleaded that the deceased was earning Rs.4500/- per month, as driver of the auto they have not adduced any evidence in that regard. Though the evidence shows that the deceased was an auto driver, there is no evidence in proof of the alleged income of the deceased at Rs.4500/- per month. In the absence of any such evidence, the Tribunal has taken the average income of the deceased at Rs.100/- per day, which is considered just and reasonable. 11. Learned counsel for the appellant would submit that the Tribunal ought to have taken the income of the deceased at Rs.4000/- per month. It is to be noted that the deceased was not employed as driver of the vehicle. He was only driver of an auto and the income of Rs.100/- per day taken by the Tribunal is just and reasonable. As the deceased left behind five dependents, 1/4th is to be taken towards personal expenses in view of the decision of the apex Court in SARLA VERMA v. DELHI TRANSPORT CORPORATION’ [1] The contribution of the deceased to the family would therefore come to Rs.27,000/- 12. As per the above decision of the apex Court, the appropriate multiplier would be ‘17’ as the deceased was aged 29 years. Applying the same, the loss of dependency works out to Rs.4,59,000/-. Claimants are also entitled for a sum of Rs.5000/- towards loss of estate and Rs.5000/- towards funeral expenses. 1st claimant is entitled for Rs.10,000/- towards loss of consortium. Claimants are therefore entitled for total compensation of Rs.4,79,000/- with interest @ 6% p.a. from the date of the petition. The impugned award is modified accordingly. 13. In the result, M.A.C.M.A.No.4645 of 2008 filed by the insurer is dismissed and M.A.C.M.A.No.811 of 2008 filed by the claimants is allowed in part to the extent stated above. _______________________ G.V.SEETHAPATHY, J 23rd December, 2011 Tsy [1] 2009 ACJ 1298