IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE SEVENTH DAY OF SEPTEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.M.A. No.348 of 2010 Between: The New India Assurance Company Limited represented by its Divisional Manager, Divisional office, Railway Station Road, Kurnool .. Appellant AND K. Yadamma and others .. Respondents JUDGMENT: The appeal is directed against the award in O.P. No.242 of 2002 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Mahabubnagar, dated 01-12-2005. The factual background in the appeal is that M. Keshavulu and K. Satyanarayana were going on scooter No.AP 22E 5593 with Keshavulu as a pillion rider on 04-02-2002 and near Surya Jyothi Cotton mill on National Highway No.7, the offending car came in opposite direction at about 5 P.M. and dashed the scooter. The car was being driven rashly and negligently and Satyanarayana died on the spot, while Keshavulu died while undergoing treatment, Shadnagar police registered Crime No.30 of 2002. The dependents of Keshavulu filed O.P. No.240 of 2002 and dependents of Satyanarayana filed O.P. No.242 of 2002 for compensation against the owner and insurer of the offending car No.AP-22-1790. The dependents of Satyanarayana i.e. the parents, wife and minor son claimed in O.P. No.242 of 2002 that Satyanarayana working as butcher was earning Rs.5,000/- per month and claimed a compensation of Rs.4,50,000/-. The owner of the car did not file any counter, but the insurer contested the claim contending that the claimants have to prove all the allegations made by them and as the accident occurred due to the gross negligence of the scooter driver without a valid driving licence, the insurer is not liable to pay any compensation. At any rate, the insurer of the car claimed the compensation claimed to be excessive. The Tribunal framed issues on the responsibility for the accident and the entitlement of the claimants to compensation and both O.P. Nos.240 of 2002 and 242 of 2002 were clubbed and tried together. P.Ws.1 and 2 and R.W.1 were examined and Exs.A.1 to A.8 and Ex.B.1 were marked during the joint enquiry. The Tribunal rendered the common award in both the claim petitions firstly concluding that the accident occurred due to the rash and negligent driving of the car, for which purpose the Tribunal relied on the first information report Ex.A.1, the charge sheet Ex.A.2 and also the fact that the driver of the car was not examined. In so far as the compensation to be awarded to the dependents of Satyanarayana is concerned, the Tribunal noted that Ex.A.8 driving licence proved his age to be 26 or 27 years by the time of the accident. The possession of valid and effective motor cycle driving licence for Satyanarayana was also probablised by Ex.A.8 licence and though there was no documentary evidence to prove that the deceased was a meat vendor, the Tribunal referred to the oral evidence of his wife P.W.2, which was found to be creating confidence, prima facie, in the nature of business the family was engaged in. The Tribunal after reference to the detailed evidence of P.W.2 about the nature and quantum of the business, opined that the average income of the deceased can be taken at Rs.70/- per day and consequently, the monthly income at Rs.2,100/- per month. On that assessed income, the Tribunal deducted one-third towards the personal expenses of the deceased, which he would have incurred had he been alive and on the balance of loss of dependency of Rs.16,800/-, the Tribunal applied a multiplier of 17 referable to the age of the deceased for arriving at the total loss of dependency at Rs.2,85,600/-. Rs.15,000/- towards loss of consortium to P.W.2, the wife and Rs.5,000/- towards loss of estate were also awarded making the total compensation of Rs.3,05,600/-. The Tribunal directed apportionment of compensation between the claimants and also awarded interest at 7.5 per cent per annum from the date of the petition till the date of realization and proportionate costs. The insurer filed the present appeal against the said award contending that the income of the deceased was assessed at a very high figure instead of adopting the notional income of Rs.15,000/- as per Second Schedule to the Motor Vehicles Act. The insurer also contended that the general damages towards loss of consortium and loss of estate would have been confined to Rs.5,000/- and Rs.2,500/- only as per the said Second Schedule and interest also was erroneously awarded at 7.5 per cent per annum. Sri B. Devanand, learned counsel for the appellant is heard, while none appeared for respondents 2 to 5 and the appeal was dismissed for default against the 1st respondent vide the order of this Court, dated 06-08-2009. The appellant in the grounds of appeal did not challenge the manner of or the responsibility for the accident and consequently, the conclusion of the Tribunal about the rash and negligent driving of the car being the cause for the accident, remained unchallenged and has become final. Therefore, the only question for consideration is the quantum of compensation to which the claimants are entitled in the light of the absence of any dispute about the subsistence of valid insurance policy covering the offending car by the time of the accident. The age of the deceased for the purpose of assessment of compensation was arrived at with reference to Ex.A.8 driving licence, which cannot be criticized and the deceased Satyanarayana admittedly having a driving licence and owning a scooter must have been engaged in some gainful employment for the maintenance of his parents, wife and minor son. The evidence of P.W.2 or the other evidence before the Tribunal giving graphic details of the business which the family was doing, need not be suspected for any reason and the Tribunal cannot be considered to have gone wrong in making such evidence on oath the basis for its conclusions in the absence of any contrary evidence from the respondents. Even minimum wages payable to an agricultural labourer in or about 2002 as per the statutory notification under Minimum Wages Act would have been a little more than Rs.70/- per day and the Tribunal making such daily income as the basis for calculation cannot be considered to be incorrect. Apart from the Tribunal making the customary one-third deduction towards the personal expenses of the deceased, the application of multiplier 17 is obviously with reference to the age of the deceased and the grant of damages towards loss of consortium and loss of estate are also not on high scale, if the claim were to be under Section 166 of the Motor Vehicles Act, though the Second Schedule confines such general damages to Rs.5,000/- and Rs.2,500/- only. However, it should be noted that no amount was granted towards funeral expenses, which ought to have been awarded at Rs.2,000/- under the Second Schedule. While the claim petition was originally filed under Section 166 of the Motor Vehicles Act, 1988 before the Tribunal after amendment as per the orders on I.A. No.1078 of 2005, dated 24-08-2005, it should be adjudicated only in terms of Section 163-A and the Second Schedule to the Motor Vehicles Act. The grant of general damages towards loss of consortium and loss of estate should have to be, therefore, reduced to the extent permitted by the Second Schedule, while granting Rs.2,000/- towards funeral expenses. The compensation awarded, therefore, has to be reduced by Rs.10,500/- in terms of the statutory provisions and the appeal can succeed only to that extent. In the result, the award, dated 01-12-2005 in O.P. No.242 of 2002 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Mahabubnagar is modified by reducing the compensation awarded to Rs.2,94,500/- (Rupees two lakhs ninety four thousand and five hundred only) payable with interest at 7.5 per cent per annum from the date of the petition till the date of realization and proportionate costs. The apportionment of the compensation between the claimants shall be in the same proportion as ordered by the Tribunal in the impugned award and no further directions need be given regarding disbursement of the compensation in addition to the directions already given by the Tribunal. As the 1st respondent to the appeal was reported dead as per the affidavit in M.A.C.M.A.M.P. No.895 of 2010, wherein it was stated that respondents 2 to 4 alone are the legal representatives of the 1st respondent, the share of compensation to which the deceased 1st respondent is entitled shall be shared in accordance with the personal law of the parties between themselves. The appeal is allowed accordingly in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 07-09-2010 Svv