THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A. No.2681 of 2007 Date : 29 -07-2010 Between : M/s. New India Assurance Co.Ltd., rep. by its Branch Manager, Old Club Road, Hyderabad. .. Appellant And Kondapalli Poolamma & others .. Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A. No.2681 of 2007 JUDGMENT: This is an appeal filed by the Insurance Company challenging the Award in O.P.No.303 of 2003, dated 6-01-2007 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Khammam (for brevity, ‘Tribunal’), whereby the Tribunal awarded a compensation of Rs.9,39,400/- in favour of the claimants-respondents 1 to 3 herein and fastened liability both on the appellant and respondent No.4 jointly and severally. The appellant-Insurance Company obtained permission under Section 170 of the Motor Vehicles Act, vide orders in I.A.No.1600 of 2006 and contested the claim on merits. The claimants filed the O.P. claiming a compensation of Rs.12,00,000/- due to the death of one A. Pratapa Reddy (deceased) in a road accident that occurred on 17.1.2003. The first claimant is the wife and claimants 2 and 3 are the daughters of the deceased. On the date of incident i.e. on 17.1.2003 while the deceased was traveling in an auto bearing registration No.AP 20/U 7816 along with two others namely, S.Tirumala Krishna and M.Venkateshwarlu and when the auto reached near Koyachelaka cross roads, on account of rash and negligent driving of the said vehicle, the driver lost control while averting a bullock-cart resulting in the vehicle over-turned. The deceased sustained severe injuries and succumbed to the injuries in the hospital. The deceased was a Senior Assistant in the Government School at the time of his death. The claimants, therefore, filed the O.P. and sought for compensation. The fourth respondent, owner of the vehicle remained ex parte. The appellant-Insurance Company being the second respondent filed a counter and contested the claim. The first claimant examined herself as P.W.1 and examined one M.Venkateshwarlu as P.W.2 and marked Exs.A.1 to A.7. The appellant- Insurance Company did not examine any witness, but filed the part of statement of P.W.1 as Ex.B.1 and the insurance police as Ex.B.2. On the basis of the pleadings of the respective parties, the Tribunal formulated the issues; (1) whether the accident occurred due to the rash and negligent driving of the Auto by its driver; (2) whether the claimants are entitled for any compensation, and if so, to what amount and from whom. On a consideration of material on record, the Tribunal granted compensation of Rs.9,39,400/-. Thus this appeal is filed. Heard counsel for both parties. The learned counsel for the appellant would contend that rash and negligence was not established, hence the complainants are not entitled for compensation. In the alternative, he would contend that the compensation awarded is excessive. The learned counsel for the claimants refuted the said contentions and would submit that the award was rightly made and it does not warrant interference. P.W.2 was the eyewitness to the incident. He was traveling along with the deceased in the said Auto. In his evidence, he stated that the driver of the Auto was rash and negligent while driving the vehicle, lost control over the vehicle and in the process of averting a bullock-cart, the auto overturned. He and the deceased sustained injuries. The deceased ultimately succumbed to the injuries while undergoing treatment. He denied the suggestion that there were four passengers in the vehicle at the time of the accident. The appellant-Insurance Company did not impeach the evidence of P.W.2 either by examining any witness or by production of any other document. The evidence of P.W.2 and the recitals in Exs.A.1-copy of F.I.R. and A.2-copy of charge sheet would clearly disclose that the driver of the offending vehicle was rash and negligent in driving the vehicle due to which the accident took place. The Tribunal therefore, rightly reached the conclusion that the accident occurred due to the rash and negligent driving by the driver of the Auto. The learned counsel for the appellant-Insurance Company would contend that the compensation as awarded by the Tribunal is excessive. He would contend that the Tribunal has taken the entire gross salary of Rs.14,288/- (Ex.A.5-last pay certificate) into consideration and after deducting 1/3rd from the said gross salary, calculated the dependency on the balance amount of Rs.9,525/-. Learned counsel would contend that the income of the deceased was taxable and as such the amount payable towards tax is liable to be deducted from out of the said amount. On the other hand, learned counsel appearing for the claimants would contend that the deceased was aged 55 years and the Tribunal wrongly applied multiplier 8 as against 11 multiplier. The counsel would further submit that taking into consideration of the actual income and the correct multiplier 11, the claimants are entitled for the sum awarded and therefore, the award is not liable to be interfered with. In order to appreciate the said contentions, I have perused Ex.A.5-last pay certificate. As per the said document, the gross salary of the deceased was Rs.14,288/- and the net income was shown as Rs.11,728/- per month. The salary included Rs.9,600/- as basic pay; Rs.60/- towards personal pay; Rs.612/- towards physically handicapped allowance; Rs.2,356/- towards Dearness Allowance; Rs.960/- towards House Rent Allowance; Rs.460/- towards special compensatory allowance to the employees working in the scheduled areas; and Rs.250/- towards additional house rental allowance. Rs.2,500/- and Rs.60/- towards G.P.F. and G.I.S. respectively, a total of Rs.2,560/- was shown as deductions. The items which were shown in the last pay certificate are not compulsorily deductible. However, the deceased was required to pay income tax. According to both the counsel, the deceased was liable to pay the tax of Rs.17,100/- per annum. The gross salary being Rs.14,288/-, the annual income of the deceased was Rs.1,71,456/-, and after deducting the income tax of Rs.17,100/-, the net income of the deceased was Rs.1,53,536/-. Since there were three claimants, 1/3rd out of the said income is liable to be deducted towards personal expenses of the deceased and on such deduction, the total contribution would be Rs.1,02,238/-. There is no dispute that the deceased was aged 55 years and as per the judgment of the Apex Court in Sarla Verma and Others v. Delhi Transport Corporation and another [(2009) 6 SCC 121] ‘11’ multiplier is applicable to the present case instead of 8 multiplier as applied by the Tribunal. Calculated on the said basis, the pecuniary loss, in fact would come to Rs.11,24,618/-, whereas the Tribunal awarded Rs.9,14,400/- only. The claimants were satisfied with the said amount. Therefore, the sum awarded towards pecuniary loss need not be interfered with. The Tribunal has also awarded a sum of Rs.15,000/- towards consortium and Rs.10,000/- towards loss of estate, in total Rs.9,39,400/-. On the analysis above made, the amount awarded in favour of the claimants cannot be said to be excessive or disproportionate. There are no merits in the appeal and is accordingly dismissed. There shall be no order as to costs. __________________ NOUSHAD ALI, J JULY 29, 2010 Tsr