IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THURSDAY THE EIGHTH DAY OF JULY TWO THOUSAND AND TEN PRESENT: THE HONOURABLE SRI JUSTICE B.N.RAO NALLA CMA.No. 3409 OF 2002 Between: Helen Vijayananda & Anr. … Appellants V/s. Sri Bathula Venkaiah & 3 Ors. … Respondents Counsel for the Appellants : Sri S. Satyam Reddy Counsel for the Respondent No.3 : Smt. A. Malathi The Court made the following : (Judgment follows 2nd page) THE HONOURABLE SRI JUSTICE B.N.RAO NALLA CMA.No.3409 OF 2002 J U D G M E N T : This Civil Miscellaneous Appeal is directed against the award and decree dated 06-10-1997 passed in OP.No. 326 of 1996 by the Motor Accident Claims Tribunal-cum-II-Additional District Judge, Karimnagar, whereunder the appellants-claimants were awarded compensation of Rs.2,70,800-00 for the death of the husband of the first petitioner in O.P.No.326 of 1996 and son of the first petitioner in OP.No. 285 of 1996. Though an amount of Rs.5,00,000-00 was claimed in OP.No. 326 of 1996 and a sum of Rs.1,25,000/- was claimed in OP.No. 285 of 1996. Both the claim-petitions were clubbed together and a common award was passed awarding total compensation of Rs.2,70,800/- in favour of the claimants in both the claim-petitions (i.e., Rs.70,800=00 in OP.No. 285 of 1996 and Rs.2,00,000=00 in OP.No.326 of 1996). 2. The petitioner in OP.No. 326 of 1996 filed the present Civil Miscellaneous Appeal seeking enhancement of compensation. 3. It is contended on behalf of the appellants-claimants that the amount awarded towards loss of consortium to the wife of the deceased in OP.No. 326 of 1996 ought to have excluded while the awarded amount among the claimants was apportioned. It is settled law that loss of consortium is awarded only to the wife of the deceased and the same has to be excluded while apportioning the compensation amount between the claimants. In this case, the Claims Tribunal appears to have lost sight of the same. Therefore, it cannot be sustained. Hence, the first petitioner-claimant (wife) in OP.No. 326 of 1996 is entitled to Rs.20,000/- towards loss of consortium exclusively and the same is not subject to apportionment. It is further contended by the learned counsel for the appellants that the Claims Tribunal ought to have committed an error in taking half of the salary of the deceased as contribution towards family expenses and half of the salary towards personal expenses of the deceased. It is settled law that only 1/3rd of the monthly earnings of the deceased was to be deducted towards his/her personal expenses. Till the decision in SARLA VARMA AND OTHERS V. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009) 6 SCC-121, wherein the criteria for such deduction is laid down depending upon the number of the family members. According to the said decision, it is only 1/4th of the monthly earnings of the deceased are liable to be deducted towards personal expenses of the deceased. The Claims Tribunal ought to have deducted 1/4th of the monthly income of the deceased towards his personal expenses. As per Ex.A6 salary certificate the deceased was earning Rs.3849/- per month and out of which 1/4th is liable to be deducted towards personal expenses. As per Ex.A3 postmortem examination certificate, the deceased was aged 38 years by the date of his death in the accident. However, it appears that the Claims Tribunal has taken into consideration the evidence of PW.3. As per the evidence of PW-3, the date of birth of the deceased is 23-01-1957 and he was absorbed into service on 15-11-1977. His evidence is based on the office record. However, no document is filed in support thereof. Therefore, his evidence cannot be considered. If the evidence is taken into account, the age of the deceased emerges at 39 years. The age of the deceased appears to have been fixed at 42 years since his date of birth certificate was not filed, as observed in the order. It appears that as per the date of birth certificate, though it was not produced, the deceased was aged 42 years. However, the basis thereof is not traceable from the record. May be that the Claims Tribunal disbelieved the evidence of PWs.1 and 3. In the circumstances, as the date of birth certificate was not produced, the Claims Tribunal has fixed the age of the deceased at 42 years. That apart, it is to be seen from the cross- examination of the wife of the deceased, who was examined as PW-1 that she is working as Typist in Mandal Revenue Office, Sircilla, Karimnagar District and she got the job on compassionate grounds on account of the death of her husband and she has also spoke as to her monthly earnings as well as drawing of pension on account of death of her husband. In view of the same, this Court is of the view that there is no need to go into the details as to the age of the deceased and applicability of appropriate multiplier in order to find out the loss of annual dependency to his legal heirs/family members, so also, the percentage of deduction to be made out of his monthly earnings towards his personal expenses. 4. In view of the above facts and circumstances, this Court is of the view that the impugned award passed by the Claims Tribunal does not appear to suffer from any legal infirmity warranting interference from this Court. 5. In the result, the Civil Miscellaneous Appeal fails and the same is accordingly dismissed without costs. _________________________ JUSTICE B.N.RAO, NALLA. 08-07-2010. I s L THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CIVIL MISCELLANEOUS APPEAL NO. 3409 OF 2002 Circulation No. 140 Date:08-7-2010 Computer No.43 Court Master: I s L