THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A.Nos. 859 & 2150 of 2006 23-02-2010 M.A.C.M.A.No. 859 of 2006 Between: N.Kavitha and three others ……….Petitioner And A.Kouser Banu and others. ………Respondents M.A.C.M.A.Nos. 2150 of 2006 Between: The Oriental Insurance Company Limited, Tirupathi ……….Petitioner And N. Kavitha and four others. ………Respondents THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A. Nos. 859 & 2150 of 2006 Common Judgment: (Per Hon’ble Sri Justice Noushad Ali) Both these appeals arise out of the judgment dated 23-01-2006 in M.V.O.P. No. 167 of 2001 passed by the Chairman, Motor Accidents Claims Tribunal-cum-V Additional District Judge, Tirupati, Chittoor District (for brevity ‘the Tribunal’). The claimants dis- satisfied with the quantum of compensation awarded by the Tribunal filed M.A.C.M.A. No. 859 of 2006 seeking enhancement, while M/s. Oriental Insurance Company Limited, Tirupati, filed M.A.C.M.A. No. 2150 of 2006 contending that the compensation awarded by the Tribunal to the claimants is excessive and requires reduction. 2. Since both the appeals arise out of the same award passed by the Tribunal, they are clubbed and heard together, and are being disposed of by this common judgment. The parties shall be referred to by their status in the M.V.O.P. 3. The claimants, who are the wife and children of the deceased N.S. Siva Sankar filed petition under Section 166(1)(c) of the Motor Vehicles Act, 1988 seeking compensation of Rs. 18,00,000/- on account of the death of the deceased in a motor accident that took place on 29-12-2000 at about 6.40 p.m. While the deceased was travelling on Hero Majestic Moped as pillion rider, and when he Railway Over-bridge, Porrnakumbam Circle on Tirupati- Tiruchanoor Road, a Lorry bearing Registration No. TN 23-A 5517, driven by its Driver, in a rash and negligent manner, hit the Moped on which the deceased was travelling, and as a result thereof, the deceased fell down and sustained grievous injuries and while he was being taken to the Hospital, he succumbed to his injuries. At the time of his death in the accident, the deceased was working as U.D.C. in Dharma Prachara Parishad and earning a monthly salary of Rs. 9,378/-, and therefore, his the claimants, who are his legal heirs, claimed an amount of Rs. 18,00,000/- towards compensation from the respondents. 4, The 1st respondent-owner of the lorry, remained ex parte. 5. The 2nd respondent-Insurance Company, with whom the lorry was insured, resisted the claim of the claimants by filing counter stating that the person who was riding the Hero Majestic Moped is a physically handicapped and is prohibited from driving two wheelers. The accident occurred due to rash and negligent driving of the rider of the moped only. The claimants have not impleaded the owner of the Hero Majestic Moped and the Insurance Company with which it was insured. Therefore, the petition is bad and is liable to be dismissed for non- joinder of necessary parties. Hence, it prayed to dismiss the petition with exemplary costs. 6. The Tribunal formulated the following issues: 1. Whether the deceased N.S.Sivasankar, husband of the 1st petitioner and father of petitioners 2 and 3 and son of 4th petitioner died in the motor vehicle accident that took place due to the rash and negligent driving of the driver of the lorry bearing Regn. No.TA 23-A 5517 on 29-12-2000? 2. What was the age and income of the deceased by the date of his death? 3. Whether the petitioners are entitled for compensation? If so, to what amount? 4. To what relief? 7. The Tribunal upon appreciating the oral and documentary evidence placed by the claimants and the 2nd respondent-Insurance Company, and particularly taking into consideration Ex. A4, the salary certificate of the deceased, fixed his monthly income at Rs. 9378/-, and his annual income at Rs.1,12536/-, and after deducting one-third of the said amount towards his personal expenses, arrived at the loss of income to his family at Rs.75,024/-, and considering the fact that the deceased at the time of accident was 39 years, applied ‘16’ multiplier, and arrived at the loss of income due to the death of deceased to the claimants at Rs.12,00,384/-. The Tribunal also awarded a sum of Rs. 20,000/- towards loss of consortium, Rs. 20,000/- towards loss of love and affection and Rs. 2,000/- towards funeral expenses. The Tribunal, in total, had awarded to the claimants an amount of Rs.12,42,384/- with interest thereon at 9% per annum from the date of petition till the date of payment. 8. We have heard the learned counsel for the claimants and the learned Standing Counsel for the 2nd respondent-Insurance Company and also perused the judgment under appeal. 9. The law is well settled that to challenge the quantum of compensation awarded by the Tribunal, the Insurance Company must necessarily obtain permission as envisaged under Section 170 of the Motor Vehicles Act, 1988. Admittedly, in the instant case, the Standing Counsel for the 2nd respondent-Insurance fairly conceded and it is evident from the record, that the 2nd respondent-Insurance Company has not obtained permission to challenge the quantum of compensation awarded by the Tribunal, as envisaged under Section 170 of the Motor Vehicles Act, 1988. That being so, the appeal in M.A.C.M.A. No. 2150 of 2006 filed by the 2nd respondent-Insurance Company, questioning the quantum of compensation awarded by the Tribunal on the ground that it is excessive, is not maintainable, and is accordingly liable to be dismissed. 10. Insofar as appeal in M.A.C.M.A. No. 859 of 2006, filed by the claimants, for enhancement of compensation is concerned, as noted supra, the Tribunal upon appreciating the evidence on record, and taking into consideration Ex.A-4, Salary Certificate of the deceased, awarded a sum of Rs.12,00,384/- to the claimants towards loss of income due to the death of the deceased. However, it is the contention of the claimants that the amount so awarded by the Tribunal is less. 11. The claimants mainly contend that the deceased at the time of death was only 38 years and considering the fact that the deceased was holding a permanent job and still had 19 years of left over service, the Tribunal while computing the loss of income of the deceased to his family, ought to have taken into consideration his future prospects, and had the Tribunal taken into consideration the future prospects of the deceased, the claimants would have been awarded more compensation. In support of this argument, the claimants placed reliance on the judgment of the apex Court in Sarala Varma and others Vs. Delhi Transport Corporation and another[1], 11. As per the judgment of the apex Court in Sarala Varma and others Vs. Delhi Transport Corporation and another, where the deceased had a permanent job and was below 40 years, while determining the quantum of compensation payable, 50% of the actual salary should be added to the actual salary income of the deceased towards future prospects. Admittedly, in the case on hand, the deceased at the time of death was 38 years. He was working as U.D.C. in Dharma Prachara Parishad and holding a permanent job. As the deceased, at the time of his death, was less than 40 years, while determining the compensation payable to the claimants, his future prospects also should be taken into consideration. The deceased was drawing actual monthly salary of Rs. 9,378/- and if 50% of the said actual salary is added, the loss of monthly income to his family would come to Rs. 14,067/- and Rs.1,68,804/- annually, and if one-third of the said amount is deducted towards his personal expenses, the loss of contribution to his family would be Rs.1,12,536/-, and if the correct multiplier of 15, is applied, as applicable to a person aged 38, the compensation payable to the claimants on account of the death of the deceased would work out to Rs.16,88,040/-. Thus, the compensation payable to the claimants towards loss of income due to death of the deceased shall stand enhanced from Rs. 12,00,384/- to Rs.16,88,040/-, to which an amount of Rs. 20,000/- towards loss of consortium (to claimant No.1), Rs.20,000/- towards loss of love and affection (all claimants) and also Rs.2,000/- towards funeral expenses, as awarded by the Tribunal, is added, the total compensation, which the claimants will be entitled to from the 2nd respondent-Insurance Company is Rs.17,30,040/- (Rupees Seventeen lakhs thirty thousand and forty only) with interest at 9% per annum from the date of petition till the date of payment. 12. Accordingly, the appeal in M.A.C.M.A. No.859 of 2006, filed by the claimants, is partly allowed, while the appeal in C.M.A. No. 2150 of 2006 filed by the 2nd respondent-Insurance Company, is dismissed. There shall be no order as to costs. _________________________ JUSTICE N.V.RAMANA Dated: 23-02-2010 _________________________ JUSTICE NOUSHAD ALI KVR [1] 2009 ACJ 1298