HON’BLE SRI JUSTICE GHULAM MOHAMMED M.A.C.M.A.No. 3526 of 2008 & Cross Objections (SR) No. 5328 of 2011 DATED: 03.03.2011 M.A.C.M.A. No. 3526 of 2008 Between: National Insurance Company Ltd. .. Appellant And K.Lakshmi K.Limbya K.Roopali K.Sumathi .. Respondents Cross Objections (SR) No. 5328 of 2011 Between: K.Lakshmi K.Limbya K.Roopali .. Petitioners And K.Sumathi National Insurance Co. Ltd. .. Respondents COMMON JUDGMENT: While, the National Insurance Company Limited has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”) challenging the order dated 19.04.2006 in O.P.No. 2282 of 2004 passed by XIV Additional Chief Judge, City Civil Court, Hyderabad, the claimants have filed Cross Objections (SR) No. 5328 of 2011. Respondent Nos.1 to 3 - claimants filed the aforementioned O.P. alleging that they are the wife and the parents of the deceased. On 07.07.2004, while the deceased – K. Shekar and his relative were proceeding on a Hero Honda motorcycle bearing No.AP 9AL 6089 from Mekala Banda Thanda to Shadnagar to Shadnagar, and when they reached near Rajadhanai Dhaba they dashed against the a lorry bearing No. KA 1AD 5515 which was parked negligently on the road without giving any indication, as a result, they died instantaneously. The accident and the death of the deceased were caused due to the negligence of the driver of the lorry in parking the vehicle on the road. The Station House Officer, Kothoor Police Station, registered a case in Crime No.107 of 2004. The deceased – K. Shekar was aged 22 years at the time of the accident and earning Rs.3,000/- per month. Hence, the claimants filed the aforementioned O.P. claiming compensation of Rs.3,50,000/- for the death of the deceased. Before the Tribunal, while the 4th respondent herein remained ex parte, the Insurance company filed counter denying the manner of accident, age, occupation and income of the deceased. It is further stated the petitioners have to prove that they are the legal heirs of the deceased and that the drivers of both the lorry and the motorcycle have valid driving licenses. It is also averred that there is contributory negligence on the part of the driver of the motorcycle on one side and the owner and insurer of the lorry on the other side, as such, the compensation shall be apportioned between the owner and the insurer of the motorcycle on one side and the owner and insurer of the lorry on the other side. The claim made by the claimants is excessive. Hence, it is prayed that the petition may be dismissed. Based on the above pleadings, the following issues were settled for trial: 1. Whether the accident resulting in the death of K.Shanker occurred due to rash and negligent parking of the driver of the lorry (trailer) bearing No.KA 1 AD 5515? 2. Whether the petitioners are entitled to compensation, if so, to what amount and from whom? In order to substantiate their case, the 1st petitioner got herself examined as PW1 besides examining one K.Andu as PW2 and got marked Exs.A1 to A5. On behalf of respondents, Ex.B1 – policy was marked, but no oral evidence is adduced. From a perusal of the oral and documentary evidence, the Tribunal came to the conclusion that the accident occurred on account of the rash and negligent act of the driver in parking the lorry on the road, however, it granted an amount of Rs.1,68,000/- together with interest at 7.5% per annum from 22.02.2006 till realization. Being aggrieved by the Award dated 19.04.2006 passed by the Tribunal, the appellant - National Insurance Company Limited has filed the present appeal. The learned Standing Counsel for the National Insurance Company Limited appearing for the appellant has contended that the Tribunal has committed an error in taking Rs.3,000/- as monthly income of the deceased – K. Shekar, who was working as labourer, and also erred in not deducting 25% of his income towards contributory negligence on the part of the deceased in causing the accident, and prays to dismiss the appeal. The learned counsel for respondent Nos.1 to 3 - claimants has contended that the order impugned in this appeal is perfectly justified and the same does not warrant any interference by this Court, and prays to dismiss the appeal. Heard the learned counsel for both the parties and perused the material placed on record. It is to be noted that even though the Tribunal held in the impugned order that there is no evidence on record to prove the income of the deceased, but taking into consideration the averment made in the claim petition that the deceased was working as a labourer, assessed the monthly income of the deceased at Rs.3000/-. However, this Court is of the opinion that interest of justice would be met if the monthly income of the deceased is fixed at Rs.2,500/-. Therefore, his annual income is calculated at Rs.30,000/- (Rs.2,500/- x 12). If one-thirds is deducted from his earnings towards his personal expenditure, it comes to Rs.20,000/- per annum. The appropriate multiplier for the age of the deceased at the time of the accident as per Sarala Varma v. Delhi Transport Corporation of India[1] is “18”. If the same is applied, the compensation is quantified at Rs.20,000/- x 18 = Rs.3,60,000/-. In addition thereto, the claimants are entitled to Rs.10,000/- towards consortium and Rs.10,000/- towards loss of estate. Thus, the claimants are entitled to a total compensation of Rs.3,80,000/-. If 1/4th of the quantified compensation is deducted towards contributory negligence on the part of the deceased, it comes to Rs.2,85,000/- (Rs.3,80,000/- - Rs.95,000/-). However, the interest awarded by the Tribunal at the rate of 7.5% is hereby reduced to 7% p.a. from the date of filing of the petition till realization, on the enhanced compensation. With the above modification of the impugned order dated 19.04.2006, the appeal filed by the National Insurance Company Limited is dismissed and Cross Objections (Sr.) No.5328 of 2011 filed by the claimants are allowed. No order as to costs. _____________________ GHULAM MOHAMMED, J 03.03.2011 bcj [1] 2009(6) SCC 121