HON’BLE SRI JUSTICE G.BHAVANI PRASAD C.M.A.Nos.4032, 4091 and 4280 of 2003 COMMON JUDGMENT: These three appeals are directed against the awards in OP Nos.751, 747 and 749 of 1998 on the file of the Chairman, Motor Accidents Claims Tribunal-cum- Additional District Judge, Adilabad, dated 15.11.2002 passed in pursuance of a common order. As all the three appeals are directed against a common order and arose out of the same accident, they are being disposed of by this common judgment. Pasula Muthaiah, his 2nd wife Pasula Nagamma and Durgam Mallaiah and others were working as coolies attending to the repair work of a bridge between Ramakrishnapur and Srirampur on 26.06.1998. The 1st respondent to the claim petitions, driving Yamaha motor cycle No.AP- 1/B 6570 in high speed rashly and negligently, came and dashed against Muthaiah and others. Muthaiah suffered a serious head injury and was treated at Area Hospital, Ramakrishnapur and then at Osmania General Hospital, Hyderabad where he ultimately succumbed to the injuries on 30.06.1998. Pasula Nagamma and Durgam Mallaiah were also injured and were treated at Area Hospital, Ramakrishnapur. Ramakrishnapur police registered a case in Crime No.70 of 1998 against the 1st respondent to the claim petitions. Both the wives and the son and daughter through the 1st wife of Pasula Muthaiah filed O.P.No.751 of 1998 against the owner and insurer of the motor cycle for a compensation of Rs.2,00,000/- claiming that the deceased aged 35 years was earning Rs.2,400/- per month as a coolie and contributing to the family. Pasula Nagamma filed O.P.No.749 of 1998 for a compensation of Rs.75,000/- for permanent disability and injuries sustained due to the accident claiming that she was earning Rs.2,400/- per month as a coolie earlier, which she was unable to earn after the accident. Durgam Mallaiah filed O.P.No.747 of 1998 claiming a compensation of Rs.10,000/- for the injuries received in the accident and stating that after the accident he was not in a position to do any work while earlier he was earning Rs.2,400/- per month from the coolie work. While the owner of the motor cycle did not contest the claims by filing any counters, the insurer denied the occurrence of the accident and the involvement of the deceased and the injured persons. It also denied the motor cycle driver having a valid driving licence or the motor cycle being road worthy and insured. Denying all the claims, the insurer contended the compensation claimed to be excessive and not liable to be paid. The Tribunal framed issues in the three claim petitions about the rash and negligent driving of the motor cycle leading to the death of Pasula Muthaiah and injuries to two others and the entitlement of the different claimants to compensation. All the three claim petitions were tried together and during the enquiry, the Tribunal examined PWs 1 and 2 and marked Exs.A.1 to A.13, while Exs.B.1 and B.2 were marked by consent. The insurer was granted permission under Section 170 of the Motor Vehicles Act in O.P.Nos.751 and 749 of 1998. The Tribunal rendered the impugned common order referring to the rival contentions and the evidence and opining that in view of Ex.A.8 copy of R.C.book and Ex.A.9 copy of driving licence, the road worthiness of the motor cycle and the valid driving licence of the 1st respondent were probablised. Ex.A.1 First Information Report was considered to be probablising the rash and negligent driving by the 1st respondent leading to the accident. The Tribunal further observed that Ex.A.7 insurance cover note showed the existence of a valid and subsisting insurance policy and the Tribunal noted that Ex.A.10 injury certificate of PW.1, the petitioner in O.P.No.749 of 1998, showed PW.1 suffering the grievous injury on the forehead and an abrasion on the left eye, an abrasion on the left cheek, a lacerated injury on the left nostril and a lacerated wound on the middle side of the upper limb. The Tribunal further noted that Ex.A.5 receipt showed that for C.T.Scan, PW.1 spent Rs.1600/-. From Ex.A.12 injury certificate of PW.2, the petitioner in O.P.No.747 of 1998 was noted to have suffered pain and tenderness all over the abdomen. The Tribunal assessed the age of the deceased Muthaiah as 35 years and his monthly income as Rs.1,500/- in the absence of any other evidence. Deducting 1/3rd from such income and applying a multiplier of ‘16’ as per the Second Schedule, the Tribunal arrived at Rs.1,92,000/- as loss of dependency or earnings, Rs.1,500/- towards funeral expenses, Rs.2,000/- towards loss of estate and Rs.3,000/- towards loss of consortium. The Tribunal in total awarded a sum of Rs.1,98,500/- to the petitioners in O.P.No.751 of 1998. Insofar as the claim of PW.1 in O.P.No.749 of 1998 is concerned, the Tribunal granted Rs.15,000/- for the grievous injury, Rs.4,500/- for the four simple injuries, Rs.3,000/- towards loss of earnings, Rs.1,500/- towards transport, Rs.6,000/- towards damage for clothing and extra nourishment and Rs.10,000/- towards pain and suffering, loss of future earnings and continuing permanent disability. It also stated that insofar as the claim of PW.2 in O.P.No.747 of 1998 is concerned, for the simple injury, Rs.3,500/- were to be granted apart from Rs.1,000/- each towards transport and medical expenses and pain and suffering. Thus, it awarded a total amount of Rs.6,000/-. The Tribunal dismissed the claim of 4th petitioner in O.P.No.751 of 1998 as she cannot be considered to be the second wife and the first wife was alive and directed payment of compensation to petitioners 1 to 3 therein only while directing apportionment and disbursement of the same as per its decision. The Tribunal also awarded interest at 9% per annum and proportionate costs on the amounts of compensation awarded. In C.M.A.No.4091 of 2003, the insurer contended that the income of the deceased could not have been fixed at Rs.1,500/- per month without any evidence and the excessive compensation should not have been granted when the proper multiplier is ’12.79’ and not ‘16’ for a person of the age of 35 years. In C.M.A.No.4280 of 2003, the insurer contended that the income of the injured could not have been fixed at Rs.1,500/- per month without any evidence and any compensation for pain and suffering and continuing permanent disability could not have been granted without any proof. In C.M.A.No.4032 of 2003, the insurer contended that the compensation was on the higher side without considering the age of the injuries sustained by the injured. In all the three appeals, the insurer contended that there was violation of the policy conditions by the 1st respondent due to driving the motor cycle under the influence of alcohol and there was also contributory negligence on the part of the deceased and injured who were working on the bridge without taking any precautions. The insurer, therefore, desired the three awards to be reversed. Sri A.Krishnam Raju, learned Standing Counsel for the insurer and Sri S.Surender Reddy, learned counsel for the claimants are heard and none appeared for the owner of the offending vehicle before this Court. The points that arise for consideration in these appeals are firstly about the liability of the insurer and secondly about the just and adequate compensation to which the different claimants are entitled? The insurer did not appear to have specifically invited the attention of the Tribunal through its pleadings or evidence about any defence of contributory negligence by the deceased and injured nor did the impugned common order anywhere show such a contention being canvassed on behalf of the insurer. Raising the question of any contributory negligence for the first time in these appeals alleging the deceased and the injured to be working on the bridge without taking any precautions to avoid such accidents may not be permissible in law or in equity to meet which contention the claimants had no opportunity before the Tribunal. Even otherwise, the manner of accident shows that the motor cyclist dashed against the deceased and the injured while they were working on the bridge and even assuming that the deceased and the injured took no precautions for avoiding any such accidents, the motor cyclist could have observed the persons working on the bridge from beyond a reasonable distance and had he been cautious and careful in driving the motor cycle it would not have been impossible to stop the motor cycle or avoid hitting the deceased and the injured. The very manner of the accident speaks for itself and assuming the absence of precautions by the deceased and the injured, the same gives no right to the motor cyclist to hit them as a result of the rash and negligent driving of the vehicle. Similarly, the insurer seeks to contend in the appeals that there was violation of the policy conditions due to the 1st respondent to the claims being under the influence of alcohol while driving the motor cycle, which absolves the insurer from any liability to pay any compensation. Ex.B.1 investigation report and Ex.B.2 charge sheet appeared to have been filed before the Tribunal in corroboration of such defence, but no witness was examined by the insurer to prove the contents of the said documents. The insurance policy itself was not marked by the insurer before the Tribunal and Ex.A.7 insurance cover note was not shown to be specifically referring to any condition absolving the insurer from liability in case of drunken driving. The common order does not disclose any such plea to have been specifically taken and to have been canvassed before the Tribunal for the claimants to have any opportunity to meet such defence and even otherwise even if the drunken driving by the 1st respondent to the claims is true, how in the face of an admittedly existing and subsisting valid insurance policy at the relevant time, the insurer can non-suit the third parties from making their claims is unintelligible. Thus, while there was no proof of such violation of the terms and conditions of the insurance policy as would absolve the insurer of any liability to the third parties, any rights of the insurer as against the insured, due to any drunken driving of the vehicle at the relevant time, are not the subject of adjudication in these appeals. While there was no proof through any acceptable evidence concerning the drunken driving by the 1st respondent to the claims at the relevant time during the enquiry into the claims, mere allegations in any manner including through an investigation report or charge sheet without proving the contents thereof cannot be considered as proof of such drunken driving. The Tribunal referred to the evidence before it in detail and firstly found that in the light of Ex.A.1 First Information Report, the rash and negligent driving by the driver of the motor cycle was probablised and the Tribunal also gave valid reasons for concluding that Pasula Muthaiah died in the accident and the other two were injured in the same accident. While the appellant and the 1st respondent to the claims have to therefore be made jointly and severally liable to pay just and adequate compensation to the claimants in all the three cases, coming to the quantum of compensation, the conclusion of the Tribunal that the 4th petitioner in O.P.No.751 of 1998 claiming to be the second wife during the life of the first wife was not entitled to claim any compensation was not challenged by the said second wife. The said finding having become final, the first wife and her son and daughter through the deceased are entitled to claim compensation. In assessing the age of the deceased, the Tribunal obviously referred to the inquest report, Ex.A.3 and that autopsy report, Ex.A.2 and it assessed the income of the deceased as a labourer at Rs.1,500/- per month and the same was not shown to be higher than the minimum wages payable to unskilled labourers under the Minimum Wages Act at the relevant time. The very accident showed that he was working as a labourer and was able bodied and healthy by the time of the accident and even non-earning persons are presumed by the Second Schedule to the Motor Vehicles Act, 1988 to be earning Rs.15,000/- per annum. The loss of dependency assessed by the Tribunal on a monthly contribution to Rs.1,000/- per month after deducting 1/3rd of the deceased/assessed income towards the personal expenses and applying a multiplier of ‘16’ with reference to the Second Schedule to the Motor Vehicles Act cannot be considered to be unjust, as according to Sarla Verma and others v Delhi Transport Corporation and another[1], the multiplier applicable to a person aged between 31 to 35 years is ‘16’ even in case of fault liability and the deduction towards living expenses was also rightly taken at 1/3rd as there were only three dependants. The claimants would have been entitled to Rs.5,000/- each towards loss of estate and funeral expenses and the widow would have been entitled to Rs.10,000/- towards loss of consortium as per Sarla Verma’s case (1 supra). But, the tribunal awarded only Rs.6,500/- under these heads obviously with reference to the Second schedule to the Motor Vehicles Act. The compensation fixed in O.P.No.751 of 1998 cannot therefore be considered to be unjust or excessive. Similarly, the compensation fixed in O.P.No.747 of 1998 was only Rs.3,500/- towards the injuries, Rs.1,000/- towards transport to hospital and medical expenses and Rs.1,500/- towards pain and suffering. While the abdominal injury suffered by the injured due to the impact of the hit of the motor cycle would have undoubtedly subjected him to pain and suffering, the necessity for getting treated and inability to attend to his work till total recovery, the transport to hospital, the damage to clothing and other incidental inevitable pecuniary and non-pecuniary heads of damages are also to be taken into account and the said sum of Rs.6,000/- cannot, therefore, be considered to be excessive. However, coming to the injury suffered by the claimant in O.P.No.749 of 1998, the injuries were stated to be a head injury and an injury on the back. She was noted to have relied on Ex.A.10 wound certificate and Ex.A.11 discharge summary and her alleged inability to attend to her work for more than six months was not corroborated by any medical evidence. The grievous injury on the forehead and two abrasions and two lacerated injuries do not appear to be of such a magnitude as would disable her from working for more than six months and it was only the cerebral contusion referred to in Ex.A.11 that can be considered to be grievous. The Tribunal itself noted that the expenses claimed to be to a tune of Rs.10,000/- were proved only to a tune of Rs.6,600/- as per Ex.A.5 receipt and when the treatment was in Osmania General Hospital which was free, any significant medical expenses cannot be presumed. The period of hospitalization also does not appear to deserve grant of Rs.6,000/- towards damages for clothing and extra nourishment. While grant of Rs.15,000/- towards cerebral contusion and Rs.4,500/- towards the four simple injuries or the loss of earnings for Rs.3,000/- need not be disturbed, the grant of Rs.7,500/- towards transport, damage to clothing and extra nourishment needs to be reasonably reduced. Similarly in the absence of any allegation or proof of any continuing permanent disability or loss of future earnings, again granting Rs.10,000/- towards such damages including pain and suffering may be excessive. Granting a total amount of Rs.10,000/- under all the three heads may be reasonable and just and, therefore, the compensation awarded in O.P.No.749 of 1998 should be reduced by Rs.7,500/-. The amount of Rs.10,000/- can be considered to include the scanning charges of Rs.1,600/- also under Ex.A.5. While the compensation in O.P.No.749 of 1998 has to be reduced to Rs.32,500/-, the request of the learned counsel for the appellant to reduce the rate of interest from 9% per annum may not be open to acceptance as such rate of interest was with reference to the then prevailing bank rates of interest and is not shown to be in any way in deviation from the settled principles. In the result, while C.M.A.Nos.4091 and 4032 of 2003 should fail, while C.M.A.No.4280 of 2003 should succeed in part. Accordingly, the award in O.P.No.749 of 1998 on the file of the Chairman, Motor Accidents Claims Tribunal-cum- Additional District Judge, Adilabad, dated 15.11.2002, is modified by reducing the compensation to Rs.32,500/- and otherwise not interfering with the impugned award. The C.M.A.No.4280 of 2003 is allowed in part accordingly without costs, while C.M.A.Nos.4091 and 4032 of 2003 are dismissed without costs. _____________________ G.BHAVANI PRASAD,J 7th February, 2011. PNV [1] 2009 ACJ,1298