IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A No.171 of 2009 Dated:30-11-2011 Between: The Oriental Insurance Company Limited. ….Appellant. And K.Subbamma and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.ANo.171 of 2009 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal at the instance of the Insurance Company is directed against the award passed in M.V.O.P.No.309 of 2006 by the Chairman, Motor Accidents Claims Tribunal – cum – Principal District Judge, Guntur on 03.01.2008. The respondent Nos.1 to 4 herein, who are the mother, wife and children of the deceased K.Imam Saheb, have filed the application under Section 166 of M.V.Act. claiming compensation of Rs.15,00,000/- for his death in a motor vehicle accident. According to them, on 22.12.2005 the deceased was proceeding to Gooty from Kurnool on the motorcycle bearing registration No.AP 02G 7474 and when he reached Obulapuram Metta on National Highway No.7 road at 9.00 P.M the driver of the car bearing registration No.AP 21A 8919 driven the car in a rash and negligent manner and dashed against his motorcycle from opposite direction. As a result of which, the deceased fell down and died on the spot. At the time of the accident, the deceased aged 42 years and working as Senior Clerk in Stores in Gooty Railway Station and drawing a monthly salary of Rs.9,041/- apart from bonus of Rs.4,849/-. The 1st respondent is the owner of the vehicle and the 2nd respondent is the insurer of the said vehicle. The 1st respondent remained exparte. Counter was filed on behalf of the 2nd respondent denying the averments made in the petition and put the petitioners to strict proof with regard to the manner, in which the alleged accident has taken place, age and income of the deceased. According to them, the accident has occurred due to collision between two vehicles and the present petition is not maintainable for non- impleading of the owner and insurer of the motorcycle bearing registration No.AP 02G 7474. The compensation claimed by the petitioners is highly excessive and pleaded for dismissal of the petition. On the above pleadings, the Tribunal has framed the following issues: (1) Whether the accident occurred on 22.12.2005 at about 9.00 P.M. near Obulapuram Metta, Dhone village, resulting in the death of K.Imam Saheb, was due to rash and negligent driving of the driver of the car bearing registration No.AP 21A 8919 or due to rash and negligent driving of the deceased or due to collision in between the Car and the motorcycle bearing No.AP 02G 7474? (2) Whether the petition is bad for non-joinder of necessary parties? (3) Whether the petitioners are entitled to compensation amount of Rs.15,00,000/-. If so, to what amount and from which of the respondents? (4) To what relief? During the course of enquiry, P.Ws.1 to 3 were examined on behalf of the claimants and Exs.A.1 to A.7 and Exs.X.1 and X.2 were marked. On behalf of respondents, R.Ws.1 and 2 were examined and Ex.B.1 was marked. Taking into consideration of the said oral and documentary evidence, the Tribunal has held issue No.1 in favour of the petitioners holding that the accident was occurred due to rash and negligent driving of the driver of the car bearing No.AP 21A 8919. The standing counsel for the insurance company has pleaded that there is head on collision between the motorcycle and the car, as such there is contributory negligence on the part of the driver of the motorcycle i.e. deceased. As such the compensation has to be apportioned between the owners and insurers of two vehicles. On behalf of the petitioners, 2nd petitioner was examined as P.W.1 and narrated the manner, in which the accident has taken place. Admittedly, he is not an eyewitness to the accident. One M.Chandrasekhar Reddy, who is said to be the independent witness, examined as P.W.2. According to him, himself and one Rama Chandra Reddy boarded the Car bearing registration No.AP 21A 8919 at Gooty to go to Kurnool and when the car reached near Obulapuram Metta at about 9.00 P.M., its driver drove the same in a rash and negligent manner and lost control over the vehicle and dashed against the motorcycle coming from the opposite direction and the motorcyclist died on the spot. On behalf of the insurance company R.W.1 was examined. According to him, he is the owner of the car bearing No.AP 21A 8919 and the said car did not involve in the accident on 22.12.2005. According to him, his son went to Ananthapur in his car on that day. According to him, P.W.2 is not an eyewitness and he is a planted witness. R.W.2 is not eyewitnesses to the accident, but in the chief-examination itself admitted that the car bearing No.AP 21A 8919 involved in the accident that occurred on 22.12.2005. After investigation, police filed the charge sheet against the driver of the car bearing No.AP 21A 8919. Ex.A.5 is the charge sheet and it shows that P.W.2 is an eyewitness to the accident. Therefore, the evidence adduced on behalf of the insurance company does not establish the head-on-collision between both the vehicles. They pleaded that the car bearing No.AP 21A 8919 was not involved in the accident. As discussed above, the evidence available on record clearly establishes that the car bearing No.AP 21A 8919 was involved in the accident and the accident was occurred due to the rash and negligent driving of the said car. Therefore, the contention of the standing counsel for insurance Company that there is head-on-collision between two vehicles cannot be accepted. With regard to quantum of compensation, the Tribunal by taking into consideration the evidence of P.W.3, Ex.A.7 and Ex.X.1 and taking into account the future prospects of the deceased fixed the salary of deceased at Rs.9,900/- and deducted 1/3rd towards his personal expenses and applied multiplier ‘13’ for the age of the deceased and awarded compensation of Rs.10,29,600/- towards loss of dependency of the petitioners. Apart from that, the Tribunal awarded Rs.15,000/- towards consortium to the 2nd petitioner and Rs.5,000/- towards transportation and funeral expenses. In all, the Tribunal has awarded Rs.10,49,600/-. The standing counsel for the insurance company has pleaded that the Tribunal erred in taking the gross salary of the deceased instead of taking the net salary and also pleaded that the multiplier applied is on higher side. P.W.3 is Head Clerk, South-Central Railways, Guntakal Division. As per his evidence, the deceased was born on 01.07.1958 as per the service register Ex.X.2 and the deceased is aged about 48 years as on the date of his death. P.W.3 also stated that as per the pay slip Ex.A.7 the deceased has drawn the salary for the month of November, 2005. As per Ex.A.7 his gross salary is Rs.9,880/- and net salary is Rs.7,842/-. However, as per Ex.X.1 salary particulars, the gross salary of the deceased is shown as Rs.8,761/- and net salary is Rs.5,153/-. As per Ex.X.1 and A.7, the basic salary of the deceased is shown as Rs.4,750/- and they have deducted Provident Fund, Group Insurance payment and loan amounts. The Tribunal has taken into consideration the gross salary of the deceased for calculating the loss of dependency. The Tribunal has considered that the deceased is working as Senior Clerk in the stores of Gooty Railway Station and he has got future prospects in his life and by considering the same taken the gross salary of the deceased as Rs.9,900/- for the purpose of determining the loss of dependency. As contended by the insurance company the net salary has to be taken into consideration, which is Rs.7,842/-. As per the decision rendered in “Smt. Sarla Verma and others v. Delhi Transport Corporation and another (2009 AIR SCW 4992)” 50% of salary has to be taken towards his future prospects. If the same is taken into consideration, it will be more than Rs.9,900/-. Since the claimants have not filed any appeal for enhancement of the compensation and as the Tribunal has rightly taken into consideration Rs.9,900/- towards monthly income of the deceased and rightly deducted 1/3rd towards personal expenses and applied multiplier ‘13’, there is no need to interfere with the amount of compensation awarded by the Tribunal. Hence, the compensation awarded by the Tribunal is hereby confirmed. The Tribunal has awarded 7.5% interest on the compensation, but as per Smt.Sarla Verma’s case (referred supra), the interest to which the petitioners are entitled is only 6% on the total compensation amount. In the result, the appeal is partly allowed only to the extent of reducing the interest on the awarded amount from 7.5% to 6% P.A. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:30-11-2011 Ksp