IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH C.M.A.No.2678 of 2002 Between: Madithi Esther ..... APPELLANT AND Abbasbhai Rustubhai Radhode and 4 others .....RESPONDENTS The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH C.M.A.No.2678 of 2002 JUDGMENT: The appellant is the claimant who filed the OP.120/1996 on the file of the 1st Addl.District Judge-cum-Motor Accidents Claims Tribunal, East Godavari, Rajahmundry claiming compensation of Rs.4,50,000/- towards her dependency on account of death of her mother who died in a motor accident on 10.05.1999. The Tribunal below awarded compensation of Rs.4,24,635/- and after deducting Rs.50,000/- paid by the 4th respondent, award was passed for a sum of Rs.3,74,635/-. Aggrieved by the same, this appeal is filed seeking enhancement of compensation, contending that the Tribunal below ought to have allowed the total amount as claimed by the claimant and deduction of Rs.50,000/- paid by the 4th respondent vide decree in O.S.79/2000 obtained by APSRTC is illegal and unsustainable. 2. It is the case of the claimants that the deceased was aged about 55 years and he was hale and healthy and was working as Head Nurse in the Government Hospital, Rajahmundry till her death. She used to earn monthly income of Rs.7,316/- and the claimant is the only daughter of the deceased. Initially the claimant claimed compensation of Rs.3 lakh on all counts, subsequently it was amended to Rs.4,50,000/- It is stated that on 10.09.1995 her mother the deceased Medithimary Shantaratnam got into the APSRTC Bus bearing No.AP9Z-3031 at Rajahmundry RTC complex to go to Narapuram. When the bus was reached opposite to Jayalakshmi Nursery at Venkayammpet a crane bearing No.APSC8152 coming from Ravulapalem side in opposite direction which was driven by the 1st respondent in rash and negligent manner in high speed, dashed against the cyclist from his behind who was also coming on the right side of the road towards Vemagiri and after dashing the said cyclist, suddenly turned towards the right side of the road and dashed against the APSRTC, thereby the bus fell into the ditch result in the death of the deceased. It is stated that the OP was filed against all the respondents viz. the driver, owner, and insurer of the crane as well as APSRTC. 3. A counter was filed on behalf of the Insurance Company disputing the manner and method of the accident and also the monthly income of the deceased. APSRTC also filed counter stating that there was no fault on the part of the driver of the APSRTC bus and the total liability lies on the driver of the crane only. 4. The claimant was examined as PW 1. The eyewitness of the incident was examined as PW 2 and marked Exs.A1 to A6. Ex.A1 is the salary certificate. In so far as the accident is concerned, the finding recorded by the Court below that the accident occurred due to rash and negligent manner of the driver of the crane alone has become final as no appeal has been filed by the respondents. This appeal is filed by the claimant alone for enhancement of compensation. 5. In so far as the compensation is concerned, the claim made by the claimant is for Rs.4,50,000/- and in support of her claim she stated that though in the petition she mentioned the age of her mother as 55 years but in oral deposition she stated that her mother was aged about 51 years. There is no other proof of evidence with regard to age of her mother. In Ex.A4 post mortem report it is noted that the age of the deceased was reported to have been 51 years. However, the Tribunal below recorded a finding that as the age of the deceased was given as 51 years as per Ex.A4 post mortem report, her age was taken into account as 51 years at the time of her death. 6. In so far as the salary is concerned, the deceased used to get gross salary of Rs.7,316/- and after deductions of Rs.1707/- the net salary of the deceased was shown as Rs.5,609/- per month as per Ex.A1 salary certificate. The only grievance of the claimant is that the deduction of Rs.50,000/- paid by the 4th respondent vide decree in O.S.79/2000 obtained by the APSRTC is illegal and erroneous and the multiplier taken by the Tribunal below as 6.998 is not also correct. She placed reliance on the judgment of the Hon'ble Supreme Court of India in the case of Sarla Verma v. DTC[1] wherein the Apex Court held that the multiplier 11 should be taken in respect of the persons in between the age from 51 to 55 and multiplier 9 should be taken in respect of the persons in between the age of 56 to 60 years. Thus, it is stated that appropriate multiplier to be taken in this case is 11. 7. In the instance case the multiplier taken by the Tribunal below is 6.998 or 7. It is stated that even the age of the deceased is taken as 55 years, the appropriate multiplier that should be taken as per the aforesaid judgment is 11. For fixing the loss of dependency, the net salary of the deceased only shall be taken. In this case the net salary of the deceased is Rs.5,609/- and if 1/3rd amount is deducted towards contribution to the family, the monthly income of the deceased would come to Rs.3,740/- and the yearly income is Rs.44,880/- and then the claimant is entitled for compensation of Rs.4,93,680/- (Rs.44,880/- x 11) towards loss of dependency. The Tribunal below also awarded a sum of Rs.15,000/- towards loss of Estate. However, in the instant case, the total claim made by the claimant is only Rs.4,50,000/- and therefore, I am of the opinion that the claimant is not entitled to any amount more than the amount claimed by her. 8. The only question that arises for consideration is whether Rs.50,000/- is liable to be deducted out of the total amount of compensation of Rs.4,50,000/- 9. Admittedly, APSRTC paid Rs.50,000/- under Ex.B1 pending determination of the negligence on the part of the driver of APSRTC as well as ONGC in respect of the said accident. As the negligence on the part of the driver of APSRTC was not at all established, APSRTC is entitled to recover the said amount from ONGC and therefore, the Court below rightly deducted the said amount from out of the total compensation payable to the claimant. Thus, the deduction of Rs.50,000/- while passing award cannot be said as illegal. Accordingly, the claimant is entitled for a total compensation of Rs.4 lakh only along with interest at 8% p.a. alone from the date of petition till realization. 10. The CMA is accordingly allowed in part to the extent as indicated above. No order as to costs. ___________________ V.ESWARAIAH,J Dated: 01.07.2010 Dsr [1] (2009) 6 Supreme Court Cases 121