THE HON'BLE SRI JUSTICE GHULAM MOHAMMED C.M.A. No.4664 OF 2004 AND M.A.C.M.A. No.2163 OF 2008 COMMON JUDGMENT: Since both the appeals arise out of the same order and the parties are also one and the same, they are heard together and being disposed of by this common judgment. 2. Aggrieved by the order and decree, dated 25-08-2004 in M.V.O.P.No.107 of 1999, passed by the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Chittoor, awarding compensation of Rs.1,37,000/- as against the claim of Rs.3,00,000/- made by the claimants for the death of the deceased-Bellappa, who died in a motor accident that occurred on 4.12.1998, C.M.A.No.4664 of 2004 has been preferred by the claimants and M.A.C.M.A. No.2163 of 2008 has been preferred by the 2nd respondent-Oriental Insurance Company Limited. 3. For the sake of convenience, the parties are referred to as they are arrayed in the O.P. before the Tribunal. 4. The petitioners, who are wife and minor children of the deceased-Bellappa filed O.P. No.107 of 1999, under Section 166 of the Motor Vehicles Act, 1988, for the death of the deceased in a motor vehicle accident, alleging that on 04-12-1998, while the deceased and one Reddeppa Reddy (PW-2) were proceeding to their village Bommarajupalle, on a Spark motor cycle, bearing No.AP 03 A 2872, being driven by the deceased, a lorry bearing No. AP 03W 144, belonging to the 1st respondent, came in opposite direction in a rash and negligent manner and hit the motor cycle, due to which both the deceased and PW-2 sustained injuries and the deceased died on the spot. The petitioners filed O.P., claiming that by the date of accident, the deceased was earning Rs.5,000/- per month by running a tea stall in the village and claimed compensation of Rs.3,00,000/-. The 1st respondent-owner of the offending lorry remained ex parte. The 2nd respondent filed counter denying the averments made in the claim petition. Based on the pleadings of both the parties, the Tribunal framed the following issues for trial. i) Whether the petitioners are the only legal heirs of the deceased Mr. Bellappa? ii) Whether the accident was caused due to the composite negligence of the deceased – Bellappa while driving his two wheeler bearing No.A.P.03- A-2872 and the driver of the lorry bearing No.A.P.03-W/144 or any one of them? iii) Whether the petition is bad for non-joinder of necessary parties? iv) To what relief? On behalf of the petitioners, P.Ws.1 to 3 were examined and Exs.A.1 to A.8 were marked. On behalf of the 2nd respondent, R.W.1 was examined and Ex.B-1 was marked. Considering the material and the evidence on record, the Tribunal, holding that the accident took place due to the rash and negligent driving of the driver of the lorry bearing No.AP-03-W/2872 belonging to the 1st respondent, awarded compensation of Rs.1,37,000/- with costs and interest at 9% per annum from the date of petition till the date of realization. Aggrieved by the quantum of compensation, the petitioners filed C.M.A. No.4664 of 2004; and the 2nd respondent-Oriental Insurance Company filed M.A.C.M.A.No.2163 of 2008. 5. Learned counsel appearing for the petitioners contended that the Tribunal ought to have awarded compensation as prayed for, inasmuch as the Insurance company did not examine the driver of the lorry. It is also contended that as the deceased was earning Rs.5,000/- per month, the Tribunal ought not to have taken the monthly earnings of the deceased as Rs.1,000/-. 6. On the other hand, learned Standing Counsel appearing for the 1st respondent – Oriental Insurance Company contended that the Tribunal erred in directing the Insurance company to pay the compensation, inasmuch as the driver of the crime lorry did not possess the valid licence and that the liability of an unlicenced driver cannot be shifted to the Insurer. He further contended that the Tribunal has not taken note of the evidence of R.W.1 Motor Vehicle Inspector, who deposed that they did not issue any driving licence in the name of the driver of the offending lorry. 7. The point that arises for consideration is whether the quantum of compensation awarded by the Tribunal is just and reasonable? 8. By the date of accident, the deceased was aged about 40 years. The Tribunal had taken the annual income of the deceased at Rs.12,000/-. After deducting 1/3rd towards personal living expenses and also applying the right multiplier as per the Second Schedule appended to the Act for the age group of 40 years, the Tribunal awarded Rs.1,20,000/- towards loss of dependency on account of the death of the deceased. The learned counsel appearing for the petitioners – claimants contended that the income taken by the Tribunal is on lower side. I find some force in the said contention. In my considered opinion, the monthly income of the deceased can be taken as Rs.1,200/-, as he was getting income from the agriculture lands, apart from the income on petty business. Thus, after deducting 1/3rd towards personal and living expenses of the deceased, the contribution of the deceased to the family comes to Rs.9,600/- and after applying the appropriate multiplier ‘16’ for the person aged not exceeding 40 years, the loss of dependency comes to Rs.9,600 x 16 = 1,53,600/-. 9. The Tribunal further granted Rs.15,000/- towards loss of consortium to the 1st petitioner and Rs.2,000/- towards funeral expenses, to which I am not inclined to interfere with the same. 10. Therefore, the petitioners-claimants are entitled to Rs.1,53,600/- towards loss of dependency + Rs.15,000/- towards loss of consortium to the wife of the deceased i.e. the 1st petitioner + Rs.2,000/- towards funeral expenses; thus, totaling to Rs.1,70,600/-, towards compensation for the death of the deceased in the accident. 11. Further, it is the case of the insurer that the driver of the offending vehicle had no valid driving licence. Hence, the liability cannot be fastened against the insurer. 12. In this regard, by following various judgments of the apex Court, a Division Bench of this Court in UNITED INDIA INSURANCE CO., LTD., GUNTUR v. D. PRAMEELA DEVI[1] observed as under: “The question of fastening the liability on the insurer, as a matter of basic principle of redemption, would arise when initial liability is fastened against the insured. But, in cases like ‘fake driving licence’ or ‘inadequate driving licence’, as already pointed out, a fundamental duty is cast upon the insurer to prove that the insured was negligent in allowing the vehicle to be driven by a person with ‘fake driving licence’ or ‘inadequate driving licence’.” The Division Bench further held— “that the insurer would not be allowed to avoid its liability to pay the compensation, and, on the other hand, is girdled with the initial liability of paying the amount of compensation and recover the same from the insured or the driver, as the case may be.” 13. Therefore, in view of the principle laid down by the apex Court and as followed by a Division Bench of this Court, I am of the view that the initial liability of the insurer to pay the compensation to the claimant cannot be erased. 14. In the result, while dismissing M.A.C.M.A. No.2163 of 2008 filed by the 2nd respondent-Oriental Insurance Company, C.M.A. No.4664 of 2004 filed by the petitioners-claimants is allowed-in-part, enhancing the amount of compensation from Rs.1,37,000/- to Rs.1,70,600/- (Rupees one lakh seventy thousand six hundred only). The additional amount of Rs.33,600/- (Rupees thirty three thousand six hundred only) shall carry interest at the rate of 6% per annum from the date of petition till realization. In all other aspects, the order passed by the Tribunal shall remain unaltered. The amount enhanced in this appeal shall be apportioned proportionately as awarded by the Tribunal. 15. It is further directed that the 2nd respondent – Oriental Insurance Company shall pay the compensation to the petitioners – claimants and it shall recover the same from the 1st respondent – owner of the offending vehicle. Each party shall bear their own costs in this appeal. ______________________ GHULAM MOHAMMED, J. October 22, 2010 KTL [1] 2007 (4) ALD 495 (DB)