IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRD DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR M.A.C.M.A. No.1517 of 2007 Between: The Oriental Insurance Co. Ltd. .... APPELLANT And Lanka Nagaraju & 2 others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR M.A.C.M.A. No.1517 OF 2007 JUDGMENT: 1. This appeal was heard on 27.07.2010 and 02.08.2010. This appeal is filed by the Insurance Company and arises out of claim for compensation in O.P.No.193 of 2005 on the file of I Additional District Judge cum Additional Motor Accident Claims Tribunal, East Godavari at Rajahmundry. 2. The said claim petition was filed on behalf of father of the deceased claiming compensation of Rs.1,20,000/- alleging that on 28.01.1995, the deceased was crushed under the lorry bearing No.AP 5U 594. It is alleged that the deceased was working as a cleaner on the offending vehicle and while the said lorry was in the reverse gear, the driver instructed the deceased cleaner to stand behind the lorry, and allegedly, the driver reversed the lorry in rash and negligent manner and the deceased was crushed. It was alleged that he was 24 years of age and was earning Rs.3,000/- per month. The Mampa Police Station, Visakhapatnam District registered Crime No.1 of 1995 against the driver of the offending vehicle. Prior to this claim petition, the claimant had filed O.P.No.105 of 1997 under Section 140 of the Motor Vehicles Act which was adjudicated in the Lok Adalat and the claimant has received Rs.50,000/- against the said claim. The present claim is filed under Section 166 of the Motor Vehicles Act claiming compensation of Rs.1,20,000/-, as mentioned above. 3. The claim petition was defended by the appellant insurance company on the ground that in view of O.P.No.105 of 1997 already filed and compensation received by the claimant, this O.P. is not maintainable. The rash and negligent driving was also denied. So also, the age and earnings of the deceased were required to be proved by the claimant. 4. The claimant examined himself as P.W.1 apart from P.W.2, who was a co-cleaner along with the deceased working on the said lorry. Exs.A1 to A4 which are copies of the F.I.R., Motor Vehicle Inspector’s report, charge sheet and post-mortem certificate were marked on behalf of the claimants. The appellants did not lead any evidence except marking Ex.B1 Insurance Policy. On consideration of the evidence on record on Issue No.1, the Tribunal below held that the accident has occurred on account of rash and negligent driving as spoken to by P.Ws.1 and 2 and to rebutt the said evidence, the appellant had not examined either the driver of the vehicle or any other witness. On Issue No.2, the Tribunal below held that though there is no evidence of the earnings of the deceased claimed at Rs.3,000/- by P.W.1, his earning per month was quantified at Rs.1,500/- per month and thereby yearly earnings was quantified at Rs.18,000/-. After deducting 1/3rd therefrom and applying the suitable multiplier of 17 for the age of the deceased, the quantification of the compensation was made at Rs.2,04,000/- together with Rs.2,000/- towards funeral charges aggregating to Rs.2,06,000/-. However, since the claim was earlier made under Section 140 of the Motor Vehicles Act, the said amount was deducted from Rs.2,06,000/- and as the claim amount was only Rs.1,20,000/-, the award was restricted to Rs.1,20,000/- with interest at 7.5%. 5. It is contended by learned counsel for the appellant that to the extent of finding on rash and negligent driving, as there is no rebuttal evidence the said finding cannot be questioned. In this appeal, the learned counsel for the appellant contended that when there is no evidence of earnings of the deceased, the tribunal could not have raised the earnings to Rs.1,500/- per month. The learned counsel therefore submits that in the absence of any evidence as to the earning of the deceased, the Tribunal below should have applied the second schedule under the Motor Vehicles Act and the maximum earning of the deceased would have been quantified at Rs.15,000/-; 1/3rd was required to be deducted therefrom for personal expenses and as such the balance of Rs.10,000/- only was required to be multiplied by 17 which is the appropriate multiplier for the age of 24 years. The learned counsel also stated that second schedule having not been followed by the Tribunal, the amount of award is excessive. The learned counsel for respondents seeks to sustain the award. 6. Sofar as the claim under Sections 140 and 166 of the Motor Vehicles Act are concerned, it is not in dispute that the amount awarded under no fault liability under Section 140 of the Act is to be deducted from the compensation payable under Section 163A of the Motor Vehicles Act. Since the quantification of compensation is now been made under second schedule under Section 163A of the Motor Vehicles Act, any amount awarded in this O.P. is required to be reduced by Rs.50,000/- already received by the claimant under the earlier ‘no fault’ claim made under Section 140 of the Motor Vehicles Act. Keeping in view second schedule of the Motor Vehicles Act, therefore, the compensation awarded is required to be properly worked out and as rightly contended by the appellant’s counsel, the yearly earnings of the deceased after deducting 1/3rd for personal expenses would work out to Rs.10,000/- which if multiplied by the multiplier of 17 would be Rs.1,70,000/-. Out of this amount, Rs.50,000/- is required to be deducted leaving the balance at Rs.1,20,000/-. The Tribunal also awarded Rs.2,000/- towards funeral charges whereas in case of death, under Clause 3 of second schedule, claimant should be entitled Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate totalling to Rs.4,500/-. Thus, the compensation under this O.P. would work out to Rs.1,24,500/-. However, as the claim made in the O.P. is only for Rs.1,20,000/-, the award is restricted to the said amount and needs no interference in this appeal albeit for different reasons as above. The interest awarded by the Tribunal, however, needs to be scaled down from 7.5% to 6% per annum. The award under appeal accordingly is modified to the extent of interest as mentioned above. 7. The Appeal accordingly is allowed in part. There shall be no order as to costs. ________________________ VILAS V. AFZULPURKAR, J August 03, 2010 KL THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR M.A.C.M.A. No.1517 of 2007 August 03, 2010 KL