HON’BLE SRI JUSTICE K.S. APPA RAO M.A.C.M.A.No.399 of 2008 Date:08-07-2011 Between: The New India Assurance co. Ltd …… Appellant and Smt. Kaneesa Fatima and others …….. Respondents HON’BLE SRI JUSTICE K.S. APPA RAO M.A.C.M.A.No.399 of 2008 JUDGMENT: Being aggrieved by the order, dated 10-08-2006 passed in O.P.No.2272 of 2003 on the file of the Additional Metropolitan Sessions Judge for the Trial of Jubilee Hills Car Bomb Blast Case- cum-Additional Family Court-cum-XXIII Additional Chief Judge, Red Hills, Nampally at Hyderabad, the second respondent therein- Insurance Company filed the present appeal. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed before the Tribunal. 2. The brief facts of the case are that on 13-06-2003 at about 10-00 AM, the deceased by name Shaik Mohammed Shabbir along with others was proceeding as a pillion rider on a scooter from Owaisinagar Colony towards Santoshnagar. When they reached in front of the Electrical Sub Station in Owaisinagar Colony, a tipper lorry bearing No.AP 26T 8190, driven by its driver in a rash and negligent manner in high speed, came from their opposite direction and dashed against the scooter on which the deceased was travelling as a pillion rider, due to which he sustained grievous injuries. Immediately he was taken to Owaisi hospital and while undergoing treatment, he succumbed to the injuries. Therefore, the petitioners, who are the wife, daughter, mother, father and sister respectively, filed the O.P. claiming compensation of Rs.4,00,000/-. 3. During the course of trial, on behalf of the petitioners, the first petitioner herself was examined as PW-1 and PWs.2 and 3 were got examined, and Exs.A-1 to A-7 were got marked. On behalf of the respondents, none were examined, however, Ex.B-1, insurance policy, was got marked. 4. The Tribunal, after considering the entire evidence on record, partly allowed the petition awarding compensation of Rs.3,89,860/- with proportionate costs and interest @ 7.5% per annum from the date of petition till the date of award. Being aggrieved by the same, the second respondent-Insurance Company preferred the present appeal. 5. Learned counsel appearing for the appellant-Insurance Company mainly urged that admittedly the alleged accident took place while the deceased was travelling as a pillion rider on the scooter, a tipper lorry bearing No.AP 26T 8190 dashed the said scooter and therefore, this is a case of composite negligence and the petitioners shall have impleaded the owner and insurer of the scooter as party respondents and therefore, the petition is bad for non-joinder of necessary parties. It is his further contention that the Tribunal grossly erred in taking Rs.2,500/- as monthly income of the deceased without there being any evidence on record and therefore, the order of the Tribunal is not sustainable and it is liable to be set aside. 6. The learned counsel appearing for the respondents, while supporting the order of the Tribunal, urged that even though the Tribunal held that there is a triple riding, whether the same would amount to contributory negligence on the part of the driver of the scooter to be seen. But the Tribunal, while discussing the evidence on record, came to the correct conclusion that the accident occurred due to rash and negligent driving of the driver of the tipper lorry and fastened the liability against the driver, owner and insurer of the offending tipper lorry. In support of his contention, the learned counsel placed reliance on the decisions reported in NATIONAL INSURANCE CO. LTD, VISAKHAPATNAM v. YAKALA SIMHACHALAM [1] and UNITED INDIA INSURANCE CO. LTD v. CHENDRI RAMAIAH [2]. 7. Now the point for consideration is whether the order of the Tribunal, dated 10-08-2006 is sustainable? 8. The factum of the accident is not disputed. The controversy is only regarding the negligence of the driver i.e., whether the accident occurred due to the rash and negligent driving of the driver of tripper lorry or the rider of the two wheeler on which the deceased was travelling as pillion rider. For the purpose of proving the same, PW-2, an eyewitness, was examined. According to him, on 13-06-2003 at about 10-00 AM, while he was going to his house, he noticed that the offending tripper lorry, driven by its driver in a rash and negligent manner, dashed the scooter on which the deceased was travelling as a pillion rider and the deceased fell down on the road and sustained grievous injuries and he was shifted to the hospital. In proof of the same, the petitioners also filed Ex.A-1, first information report, and Ex.A-4, charge sheet, which proves that the accident occurred due to rash and negligent driving of the driver of the tipper lorry. The respondents did not adduce any rebuttal evidence against the documentary evidence of Exs.A-1 and A-4 and ocular evidence of PW- 2. In the absence of any such rebuttal evidence, the evidence of PW-2 and the documentary evidence of Exs.A-1 and A-4 remained as unrebutted. 9. Therefore, non-adding the rider, owner and insurer of the two wheeler is not fatal as they are not necessary parties in view of the evidence of PW-2 and Exs.A-1 and A-4. Hence, I see no merits in the argument advanced by the learned counsel for the appellant-Insurance Company. 10. In view of the above circumstances, the finding of the Tribunal fastening the liability against Respondent Nos.1 and 2 is sustainable. 11. Now, it has to be seen whether the quantum of compensation awarded by the Tribunal is liable to be reduced? 12. According to the evidence of PW-1 (wife of the deceased), the deceased was a Shoe Maker and he was earning Rs.4,500/- per month. Admittedly the age of the deceased was 25 years as on the date of accident. In proof of the earnings of the deceased, except the sole testimony of PW-1, no other witness was examined and no document was marked. However, the fact remains that the deceased was a Shoe Maker and he was eking out his livelihood from that profession. During the course of cross-examination, PW-1 was suggested on behalf of the counsel for the Insurance Company that the deceased was earning Rs.2,500/- per month. Therefore, as suggested by the respondents themselves, the Tribunal has taken the income of the deceased at Rs.2,500/- per month and after deducting 1/3rd out of the same, calculated the annual loss of contribution to the family at Rs.19,992/- and applied multiplier ‘18’, which was also correct as per the decision of the Supreme Court in SARLA VARMA v. DTC [3], and calculated the total loss of dependency at Rs.3,59,856/- besides granting Rs.15,000/- towards loss of consortium, Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral and miscellaneous expenses, and in total awarded a sum of Rs.3,89,860/- under all the heads. 13. Therefore, on an overall scrutiny of the evidence and the material on record and the findings of the Tribunal, in any view of the matter, the compensation of Rs.3,89,860/- awarded by the Tribunal is not excessive and it is quite just and reasonable and there are no grounds to interfere with the same. Accordingly, the order of the Tribunal, dated 10-08-2006 is sustainable. 14. However, as seen from the order of the Tribunal, the Tribunal committed error in granting interest at 7.5% per annum from the date of petition till the date of award, and therefore, the same is modified granting interest at 6% per annum from the date of petition till the date of realisation while applying the principles laid down in SARLA VARMA’s case (3 supra) 15. In the result, the M.A.C.M.A. is dismissed, subject to the above modification, while confirming the order of the Tribunal. No order as to costs. _______________ K.S. APPA RAO, J Date: 08-07-2011 YCR [1] 2011(2) ALD 611 [2] 2011 (2) ALD 3 [3] (2009) 6 SCC 121