THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No. 3837 of 2002 & Cross Objections (SR) No.10710 of 2003 COMMON JUDGMENT: The C.M.A. is filed by the insurance company against the order dated 25.07.2002 in O.P.No.258 of 1999 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-Principal District Judge, at Nalgonda whereby and whereunder the claim petition was partly allowed granting a total compensation of Rs.86,200/- as against the claim of Rs.4,00,000/-,with interest at 9% per annum from the date of the petition till the date of realisation. 2. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants filed the cross objections. 3. The insurance company is disputing the fastening of the liability on it since the deceased was travelling by goods vehicle i.e. oil tanker and that the risk of gratuitous passenger was not covered under Ex.B1 policy. 4. On the other hand, it is the case of the respondents-claimants that so far as the quantum is concerned, in the absence of proof of employment and earnings of the deceased, the Tribunal fixed Rs.900/- as monthly income to be the contribution and out of which 1/3rd was deducted and Rs.600/- per month was considered to be his contribution towards his family and thus his annual income arrived at Rs.7,200/-. Taking into consideration the age of the deceased as ‘49’ as mentioned in Ex.A.3-post mortem report, the multiplier ‘8.5’ was applied and annual loss of dependency arrived at Rs.61,200/-. In addition thereto an amount of Rs.15,000/- was awarded towards non- pecuniary damages and Rs.10,000/- towards loss of consortium. The case of the respondents-claimants is that the Tribunal erred in fixing the monthly earnings of the deceased at Rs.900/-per month. It is contended on their behalf that the Tribunal ought to have fixed the monthly income of the deceased at Rs.3,000/- since even the monthly earnings of labourer were fixed at Rs.3,000/- that too in the absence of proof of income by this court in the decision reported in United India Insurance Co. Ltd., Hyderabad v. T.Gandamma,[1] and that even the Apex Court in a similarly placed case reported in Laxmi Devi and others v. Mohammad Tabbar and another [2] fixed the daily earnings of labourer at Rs.100/- per day in the absence of proof. It is also contended that multiplier ‘8.5’ was not appropriate; that the Tribunal ought to have selected appropriate multiplier ‘13’ and that as per the decision reported in Sarla Verma & others v. Delhi Transport Corporation & another,[3] the appropriate multiplier for the person aged between 46 and 50 is ‘13’. So far as fastening of the liability is concerned, it is the case of the respondents-claimants that the lower Tribunal has disbelieved the case of the appellant insurance company that the deceased was travelling by a lorry/tanker with goods which is in violation of the policy conditions and as such it is not liable to pay compensation. That the Tribunal relying on judgment of the Apex Court reported in New India Assurance Company v. Satpal Singh and others[4] fastened the liability on the owner of the accident vehicle and the insurer thereof. It is further contended that it is clearly stated in Ex.B.1 policy, in the passenger carrying capacity column “3 in all”. Therefore, it is contended that the deceased was not a gratuitous passenger and that the policy also discloses that an amount of Rs.50/- was paid towards non fare paid passenger. The said contention is resisted by the insurance company stating that Ex.B.1 policy is an Act policy and therefore, it is not applicable to the gratuitous passengers. 5. It is the contention of the insurance company that the deceased was not covered under the policy as he was travelling in the vehicle as a gratuitous passenger. But in Ex.B1 policy, against the column of passenger carrying capacity, it is mentioned “3 in all”. Further, as per new Act, an insurance policy covering third party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. Therefore, the contention of the insurance company cannot be accepted. The contention of the claimants in the cross objections is that the deceased was an employee of APSEB and was earning Rs.5,000/- per month. But there is no iota of evidence on record to that effect. In that view of the matter, the Tribunal has not accepted the said contention of the claimants. However, this court after going through the record and submissions made by the learned counsel on either side, is of the view that the Tribunal ought to have fixed the monthly income of the deceased at Rs.1200/-per month which is just and reasonable, instead of Rs.900/-, even though there is no conclusive proof with regard to avocation and earning capacity of the deceased. If 1/3rd therefrom is deducted towards his personal expenses, the loss of dependency would come to Rs.800/- per month and annually it comes to Rs.9,600/-. Ex.A.3-post mortem report indicates that the age of the deceased was 49 years at the time of the accident. As per the decision reported in Sarla Verma & others Vs. Delhi Transport Corporation & Another (3 supra), the appropriate multiplier for the persons aged between 46 and 56 is ‘13’. Therefore, if the same is applied, the total loss of dependency would arrive at Rs,1,24,800/-(Rs.9,600 x13). In addition thereto, the claimants are entitled to Rs.15,000/- towards non-pecuniary damages and Rs.10,000/- towards loss of consortium. 6. In the above facts and circumstances of the case, it is to be held that the appellants-claimants are entitled to claim a total compensation of Rs.1,49,800/- (Rupees One Lakh Forty Nine Thousand Eight Hundred) only ( i.e. Rs.1,24,800/- towards loss of dependency, Rs.10,000/- towards loss of consortium and Rs.15,000/- towards non- pecuniary damages) with interest at 6% per annum on the enhanced amount of compensation in view of the decision reported in Sarla Verma & others Vs. Delhi Transport Corporation & Another (3 supra) 7 . Accordingly, the C.M.A. is dismissed and the Cross Objections are disposed of. ​ ​_______________ B.N.RAO NALLA,J 09-09-2010 Stp [1] 2009 6 ALD 779 [2] (2008) 12 SCC 165 [3] 2009 ACJ 1298 [4] (2000) 1 SCC 237