IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED M.A.C.M.A.No.2851 of 2007 and M.A.C.M.A.No.2527 of 2006 M.A.C.M.A.No.2851 of 2007: Between: M/s. United India Insurance Co. Ltd., rep. by its Divisional Manager ..... APPELLANT(S) AND Smt. D.Pochamma and others .....RESPONDENT(S) M.A.C.M.A.No.2527 of 2006: Between: D. Pochamma and others ..... APPELLANT(S) AND M/s.Amaleswari Diagnostic Centre rep by Dr Radhakrishna and another .....RESPONDENT(S) THE HON'BLE SRI JUSTICE GHULAM MOHAMMED M.A.C.M.A.No.2851 of 2007 and M.A.C.M.A.No.2527 of 2006 COMMON ORDER: Since these two appeals arise out of the same Award, they are being disposed of together. For the sake of convenience, the parties herein are referred to as they were arrayed before the Tribunal. The claimants, who are the legal heirs of Sri D.Mallaiah (hereinafter referred to as – ‘the deceased’) filed claim petition in O.P.No.2215 of 2004 on the file of the Motor Vehicle Accident Claims Tribunal-cum-II Additional Chief Judge, City Civil Courts, Hyderabad, under Section 163-A of the Motor Vehicles Act, 1988 (for short – ‘the Act’), seeking compensation of Rs.5,00,000/-for the death of deceased alleging that the deceased was aged 43 years by the time of his death and was earning Rs.5,000/- per month from sheep and goats business; that on 17.05.2004, at about 7.00 p.m., while the deceased was going by walk slowly on the extreme left side of the road near the house of one Mr.Gandaiah in Bibinagar on Hyderabad to Warangal road, the driver of an ambulance van bearing No.AP-9V-3036, owned by the 1st respondent and insured with the 2nd respondent, drove it in a high speed, in a rash and negligent manner, and dashed the deceased causing fracture of head and other injuries. It is stated that he was taken to Government Hospital, Bhongir and from there he was referred to Gandhi Hospital, Secunderabad, where he succumbed to injuries on 20.05.2004. It is further stated that they spent huge amounts for transportation, postmortem, cremation and obsequies. The 1st respondent filed counter contending that since the offending vehicle was insured with the 2nd respondent the Court may proceed against the 2nd respondent and prayed for dismissal of the claim against it. The 2nd respondent also filed counter denying all the material allegations including the fact that the deceased was earning Rs.5,000/- per month by doing sheep and goats business. Based on the pleadings, the Tribunal framed the following issues for consideration. (1) Whether the accident took place on 17.05.2004 at about 7.00 p.m., due to rash and negligent driving of Ambulance van bearing No.AP-9V-3036, by its driver? (2) Whether the petitioners are entitled to claim compensation from the respondents? If so, to what amount and from whom? (3) To what relief? To prove their claim, the claimants got examined the 1st claimant as P.W.1 and an eye witness to the accident as P.W.2 and got marked Exs.A.1 to A.5. On behalf of the respondents, though no oral evidence was adduced, copy of the insurance policy was marked as Ex.B.1. Considering the material on record, the Tribunal, holding that the accident occurred due to the rash and negligent driving of the offending vehicle, awarded Rs.2,88,000/- with costs and interest at 9% per annum from the date of the petition till the date of deposit of the amount into Court which shall be within one month from the date of the Award. Aggrieved of the same, the claimants preferred M.A.C.M.A.No.2527 of 2006 and the insurance company preferred M.A.C.M.A.No.2851 of 2007. The learned counsel appearing for the 2nd respondent/ insurance company vehemently contended that as the claimants failed to adduce any evidence to prove the earnings of the deceased, the Tribunal was wrong in taking the monthly income at Rs.2,250/- and the Court below ought to have taken the notional income as per the Second Schedule to the Act. Per contra, the leaned counsel appearing for the claimants, relying upon a judgment of the Supreme Court in the case of LAXMI DEVI AND OTHERS vs. MOHAMMAD TABBAR AND ANOTHER[1] wherein the Apex Court upheld the observation of the High Court that the notional income of Rs.15,000/- was prescribed in 1994, and that an unskilled labourer, who met with an accident in 2004, could easily earn Rs.100/- per day and assessed the notional income at Rs.36,000/- per annum; contended that since in the case on hand also the accident took place in the year 2004 the Tribunal ought to have taken the notional income at least as Rs.36,000/- per annum. Now the point for consideration is to what compensation the claimants are entitled? A perusal of the material on record reveals that the Tribunal, by assessing the dependency at Rs.18,000/- per annum and by applying the multiplier ‘15’, awarded Rs.2,70,000/- towards the death of the deceased; Rs.15,000/- towards consortium; Rs.2,000/- towards funeral expenses; and Rs.1,000/- towards transportation charges, making a total compensation of Rs.2,88,000/-. Since in the Second Schedule to the Act itself it is provided that for the age of victim above the age of 40 years but not exceeding 45 years, the appropriate multiplier is ‘15’, and since there was no dispute with regard to the age of the deceased to be 43 years by the time of death, there cannot be any dispute with regard to the multiplier ‘15’ adopted by the Tribunal. The 2nd respondent contended that the Tribunal was wrong in taking the notional income of the deceased at Rs.27,000/- per annum and instead it ought to have taken Rs.15,000/- per annum as provided by the Second Schedule to the Act. But, from a perusal of the judgment of the Apex Court in LAXMI DEVI (case 1 supra), since the accident in the instant case took place in the year 2004, it can be safely held that the Tribunal was not justified in taking the notional income of the deceased at Rs.27,000/- per annum, instead it ought to have taken Rs.36,000/- per annum as notional income of the deceased. So, I take the notional income of the deceased at Rs.36,000/- per annum and by deducting 1/3rd of the income of the deceased towards his personal expenses, the claimants’ dependency is assessed at Rs.24,000/- per annum. So, the claimants are entitled to Rs.24,000/- x 15 = Rs.3,60,000/- as compensation towards the death of deceased. I am not inclined to interfere with the amounts awarded under the other heads as they are found reasonable. So, the claimants are entitled to Rs.3,60,000/- towards the death of deceased + Rs.15,000/- towards consortium + Rs.2,000/- towards funeral expenses + and Rs.1,000/- towards transportation charges; making a total compensation of Rs.3,78,000/-. However, in the facts and circumstances of the case, the rate of interest awarded by the Tribunal is reduced from 9% per annum to 7.5% per annum. Therefore, the award of the Tribunal is modified and an award is passed for Rs.3,78,000/- with proportionate costs before the Tribunal payable by the respondent Nos.1 and 2 jointly and severally with interest at 7.5% per annum from the date of the petition till the date of realization. From out of the said amount, the 1st claimant is entitled to Rs.2,78,000/- and interest thereon and claimant Nos.2 and 3 are entitled to Rs.50,000/- and interest thereon. Accordingly, both the appeals are allowed-in-part. The parties shall bear their own costs. ___________________________ GHULAM MOHAMMED, J. 8th July 2010 CVRK [1] 2008 ACJ 1488