THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A. C.M.A. No.633 of 2009 DATE: 22-02-2011 Between: Smt. Y.R. Lakshmi and 3 others … Appellants A n d Sri. Y. Chandrasekhar and another … Respondents THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A. C.M.A. No.633 of 2009 ORDER: This appeal is directed against the award dated 01-10-2005 made in O.P.No.477 of 2003 on the file of the Motor Vehicles Accident Claims Tribunal-cum-XXI Additional Chief Judge-cum-Additional Metropolitan Sessions Judge for the Trial of Communal Offence Cases-cum-VII Additional Metropolitan Sessions Judge, Redhills, Nampally, Hyderabad (hereinafter referred to as “the Tribunal”). 2. The appellants herein are the claimants before the Tribunal. The 1st respondent is the owner of the vehicle and the 2nd respondent is the Insurance Company with which the vehicle was insured during the relevant period. The appellants will be hereinafter referred to as ‘claimants’ for the sake of convenience. 3. On 23-12-2002, at about 2200 hrs, Y.R. Shanmukha Gouda, hereinafter referred to as ‘the deceased’, was proceeding on Hero Honda motorcycle bearing No.AP-9AF-1767 as a pillion rider. His brother Y. Chandrasekhar was driving the motorcyle. When they reached in front of Mallikarjuna Farm, Shamshabad, one unknown vehicle came from their behind and dashed against the motorcycle, as a result of which, the deceased fell down and sustained grievous injuries and, on the way to the hospital, he died. The Police registered a case in Crime No.351/2002 under Section 304-A and 377 of IPC. The claimant No.1 is the wife of the deceased, claimant Nos.2 and 3 are the minor daughters of the deceased and claimant No.4 is the mother of the deceased. They claimed a total compensation of Rs.5,00,000/- for the death of the deceased against the respondent Nos.1 and 2, contending that both of them are jointly and severally liable to pay the compensation. It is also their case that the deceased was aged about 33 years as on the date of the accident and he was working as an Operator in Sri Venkateswara Plating Works, Balanagar, Hyderabad and earning a salary of Rs.4,500/- per month. Respondent No.1 filed a counter mainly contending that the motorcycle was insured with the 2nd respondent-Insurance Company and, if at all any compensation has to be paid, the 2nd respondent has to pay the compensation. The 2nd respondent-Insurance company filed a counter inter alia contending that the deceased was travelling as a pillion rider and, therefore, the Insurance Company is not liable to pay the compensation. It is also contended that since the accident occurred involving an unknown vehicle, the claimants should have made the owner and insurer of that vehicle as parties to the petition. 4. The Tribunal, on the issue whether the accident occurred due to rash and negligent driving of the Hero Honda, came to the conclusion that since unknown vehicle is involved in the accident, the accident did not take place due to rash and negligent driving of the Hero Honda motorcycle. The learned counsel for the claimants submitted that since the claimants claimed compensation under Section 163-A of the Motor Vehicles Act, they need not prove that the driver of the vehicle drove the same in a rash and negligent manner and it is sufficient if the claimants proved that the vehicle is involved in the accident. In view of the same, there is no need to discuss whether the accident occurred due to the rash and negligent driving of the driver of the motorcycle. On the issue No.2, whether the claimants are entitled to compensation from the respondents, if so, on what amount and from whom, the Tribunal came to the conclusion that since no additional premium was paid and the amount paid covers only the owner and driver, the pillion rider is not covered and, therefore, the Insurance company is not liable to pay the compensation. The Tribunal has also taken the annual notional income of the deceased at Rs.16,000/- and did not accept Exhibit A.5, the salary certificate produced by the claimants and after taking ‘17’ as multiplier, multiplied with the total loss of earnings at Rs.17,000/- and by adding an amount of Rs.2,000/- towards funeral charges, Rs.10,000/- towards loss of consortium and Rs.10,000/- towards loss of estate, awarded a total compensation of Rs.2,00,000/-. Aggrieved by the same, the claimants preferred this appeal. 5. The learned counsel for the claimants Smt. A. Chaya Devi submitted that the Insurance Company is liable to pay compensation even in case of a pillion rider. There it was only an Act Policy. Relying on the judgment in case between GENERAL MANAGER, UNITED INDIA INSURANCE CO. LTD., vs. M. LAXMI AND OTHERS[1]. It is submitted that since it is a comprehensive policy, the Insurance Company is liable to pay the compensation. It is also her submission that the Tribunal failed to consider that the deceased was earning a sum of Rs.4,500/- per month and that the Tribunal ought to have considered Exhibit A.5-the salary certificate of the deceased. It is also her submission that since the claimants are four in number, as per the decision in SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER[2], the Tribunal ought to have deducted 1/4th towards personal expenses of the deceased. The learned counsel for Insurance Company argued that the order of the Tribunal needs no interference since Pillion Rider is not covered by the policy. 6. The points that arise for consideration are whether the Insurance Company is liable to pay compensation and whether the Tribunal ought to have taken the income of the deceased at Rs.4,500/- and deducted 1/4th towards personal expenses of the deceased. 7. Exhibit B.1 is the copy of the policy, which is to be noted as package policy. It is not in dispute that since the policy is a package policy, the Insurance Company is liable to indemnify the 1st respondent. The learned counsel for the claimants have also relied on the judgment in case between BABU MATHEW Vs. BIJU MATHEW AND OTHERS[3]. In that case also, it was held that the Insurance Company is liable to indemnify the owner in case if it is a comprehensive policy. The Apex Court also in a case between GENERAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED Vs M. LAXMI AND OTHERS (1 supra), observed that as per the Circular, dated 02-06-1996, pillion rider is covered in the case of comprehensive policy. In the light of the above decision, it is clear that the insurance company is liable to indemnify the 1st respondent. 8. It is the case of the claimants that the deceased was working as an Operator in Sri Venkateswara Plating Works, Balanagar, Hyderabad and earning Rs.4,500/- per month. In support of their contention, they have examined one of the partners of Sri Venkateswara Plating Works, Balanagar, Hyderabad as P.W.2. P.W.2 categorically deposed that the deceased was working as Boiler Operator in their workshop and that Exhibit A.5 is the salary certificate issued showing the income of the deceased. It is not in dispute that the contents of Exhibit A.5 reveals that the deceased was paid Rs.4,500/- per month. It was elicited in the cross-examination that P.W.2. and the deceased belonged to the same caste and the deceased was distantly related to him. Merely because P.W.2 is related to the deceased, his evidence cannot be discarded on that ground. Moreover, there is nothing on record to disbelieve the evidence of P.W.1 who is the wife of the deceased. The evidence of P.W.1 is corroborated by the evidence of P.W.2. The deceased was aged about 33 years. Now-a-days even labourers are earning more than Rs.100/- to Rs.150/- per day and since the deceased was working as operator, the income of the deceased can be safely taken as Rs.4,000/- per month. Accordingly, the income of the deceased is taken as Rs.4,000/- per month. 9. In the light of SARLA VERMA’s case (2 supra), the appropriate multiplier is ‘16’, since the deceased was 33 years old as on the date of his death. However, since the claimants are four in number, only 1/4th can be deducted towards personal expenses of the deceased and, on such deduction, the total loss of dependency comes to Rs.3,000/- and Rs.36,000/- per annum. If the same is multiplied with 16 multiplier, the total loss of earnings comes to Rs.5,76,000/-. In this case, the appropriate multiplier is ‘16’. If ‘16’ multiplier is applied, the total loss of earnings comes to Rs.4,80,000/-. 10. The Tribunal has rightly awarded Rs.2000/- towards funeral charges, Rs.10,000/- towards loss of consortium, Rs.5000/- towards loss of estate and, accordingly, the claimants were awarded Rs.4,97,000/-. The Tribunal awarded Interest @ 7.5 per cent per annum and proportionate costs, which is reasonable and, therefore, I am not inclined to disturb the same. Respondent Nos. 1 and 2 are jointly and severally liable to pay the compensation. 11. The 1st claimant is the wife, the 2nd and 3rd claimant are the minor daughters and the 4th claimant is the mother of the deceased. In the circumstances, the compensation amount shall be apportioned as follows:- (i) 1st claimant-wife shall take Rs.2,00,000/- and; (ii) 2nd and 3rd claimants–daughters shall take Rs.1,20,000/- each, and (iii) 4th claimant-mother shall take the remaining amount of Rs.57,000/- Since the claimant Nos. 2 and 3 being are minor daughters, the amount of compensation apportioned to them shall be kept in fixed deposits in any Nationalized Bank till they attain majority. The 1st claimant-wife is permitted to withdraw an amount of Rs.1,00,000/- with accrued interest thereon and costs. The 4th claimant-mother is also permitted to withdraw the entire amount awarded with accrued interest thereon. The remaining amount awarded to the 1st claimant-wife shall be kept in fixed deposit for a period of five years. The 1st Claimant-wife is also permitted to withdraw the accrued interest on the fixed deposits of their minor children/claimant Nos.2 and 3, till they attain majority and also on her fixed deposit. 12. In the result, the appeal is allowed as indicated above. No order as to costs. ________________________ JUSTICE B. CHANDRA KUMAR Date: 22-02-2011 KSM/MRB [1] 2009 ACJ 104 [2] 2009 (6) SCC [3] 2009 ACJ 1261