HON’BLE SRI JUSTICE B.N. RAO NALLA C.M.A.No.395 of 2003 JUDGMENT: Aggrieved by the order dated 05.10.1998 in M.V.O.P.No. 142 of 1996 on the file of the Chairman, Motor Accidents Clams Tribunal- cum-District Judge, Chittoor, wherein the claim petition was partly allowed awarding a total compensation of Rs.50,000/- with interest at 6% per annum as against the claim of Rs.3,00,000/-, the claimant filed this appeal inter alia on the following grounds: That the Tribunal committed error in attributing contributing negligence on the part of the husband of the appellant at 50% even though there was no pleading on behalf of the respondents; that the Tribunal erred in not believing the insurance policy; that the Tribunal erred in assessing less amount of Rs.6,000/- towards annual income of the deceased in spite of substantial evidence of PW.1; that the Tribunal ought to have considered the age of the deceased so as to apply appropriate multiplier and that the Tribunal failed to award compensation towards funeral expenses, loss of consortium and loss of estate. 2. The parties herein shall be referred to as they were arrayed in the M.V.O.P. 3. The brief facts that led to the present appeal are that on 22.01.1996 at about 8.50 am., the husband of the petitioner was proceeding on TVS Champ moped along with one Govindappa and when they reached Veerappanayanicheruvu Tank Bund, on Kuppam- Krishnagiri Road, a lorry bearing No.TCM 3996 driven at high speed in a rash and negligent driving by its driver came in opposite direction and dashed against the moped, as a result, the husband of the petitioner-Chowdappa and Govindappa sustained injuries all over their bodies. While undergoing treatment at Government hospital, Kuppam, the husband of the petitioner died. P.S.Kuppam registered a case in crime No.13/96. The deceased was 32 years old and managing dairy and getting not less than Rs.1500/- per month. He was also attending to agricultural operations of his lands and was earning Rs.15,000/- per year. 4. The first respondent-owner was set exparte. The second respondent –insurance company filed counter disputing the age, occupation, income of the deceased and manner of the accident. It is stated that the TVS moped was driven in a rash and negligent manner by its rider and contacted with the lorry of the first respondent. It is further stated that the owner of TVS moped and its insurer were not made as parties and as such the petition is bad for non-joinder of necessary parties. 5. Basing on the pleadings of both sides, the relevant issues were framed as to the rash and negligent driving of the lorry bearing No.TCM 3996 by its driver or by the rider of TVS Champ moped and as to the entitlement of the petitioner and the liability of the respondents to pay compensation. The Tribunal also framed an issue as to whether the petition is bad for non-joinder of necessary parties. 6. During the course of the trial, the petitioner herself was examined as PW.1 and Exs.A.1 to A.4 were marked. On behalf of the second respondent, RW.1 was examined and no documents were marked. 7. The Tribunal after taking into consideration the evidence and other material placed on record, partly allowed the M.V.O.P. holding that in the claim under Section 163-A of the Motor Vehicles Act 1988, claimant shall not be required to prove that the death in respect of which the claim was made due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other any person, when the claim is restricted as indicated in the second schedule of the Motor Vehicles Act. When there is no necessity to prove regarding the rash and negligent driving of a motor vehicle, in a claim under Section 163-A of the Motor Vehicles Act,1988, then it equally applies to the owner of the moped as well as the insurance company having coverage over the said moped. Not adding the owner and insurer of the TVS Champ moped as respondents in O.P. makes the petition bad for non-joinder of necessary parties. The petitioner failed to prove that the vehicle TCM 3996 was under the insurance coverage of M/s. New India Assurance Company Limited represented through its Chittoor branch of Andhra Pradesh or with Sattur branch of Tamilnadu. As such, the first respondent-owner is alone liable to pay Rs.50,000/- as compensation to the petitioner. 8. Learned counsel for the appellant-petitioner in his arguments reiterated the contentions which are raised in the grounds of appeal. 9. Heard the learned counsel for the appellant and perused the record. 10. It is to be seen that the M.V.O.P. was filed under Section 163-A of the Motor Vehicles Act. In such a case, the petitioner ought to have added the owner and the insurer of the TVS Champ moped. In the pleadings, the petitioner has pleaded two different branch names of the second respondent. One is Prakasam High Road branch in A.P. and another is Sattur branch in Tamilnadu. So, there is discrepancy in the pleadings. Further, the policy number mentioned in the petition is different from that of the policy number shown by way of Xerox copy. In that view of the matter, the Tribunal exonerated the insurance company from its liability and fastened the liability on the first respondent-owner alone. Since the owner and the insurer of the TVS Champ moped were not added as parties to the petition, the Tribunal excluded 50% of the compensation amount. However, in view of the facts and circumstances of the case, the Tribunal ought to have taken monthly income of the deceased at 900/- per month instead of Rs.800/- and this court has fixed the income of the deceased at Rs.900/-per month. After deducting 1/3rd towards personal expenses, the loss of dependency would be at Rs.600/-per month and annually it comes to Rs.7,200/-. The petitioner was 32 years at the time of accident. If the appropriate multiplier is applied, the total loss of dependency would arrive at Rs.1,15,200/-. After deducting 50% as stated above, the petitioner will be entitled to Rs.57,600/-. Thus, the petitioner is awarded Rs.57,600/- towards loss of dependency. In addition to that, the petitioner is also entitled to Rs.2,000/- towards funeral expenses, Rs.5,000/- towards loss of consortium and Rs.2,500/- towards loss of estate. Thus, it is held that the petitioner is entitled to a total compensation of Rs.67,100/- (Rupees Sixty Seven thousand one hundred) only, with interest at 6% per annum in so far as the enhanced compensation is concerned.. 11. With the above modification, the C.M.A. is disposed of. No order as to costs. _______________ B.N.RAO NALLA,J 21-10-2010 Stp