THE HON’BLE MR JUSTICE B. PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO MACMA NO.462 OF 2007 Between: The Oriental Insurance Company Ltd. Represnted by its Branch Manager,Vijayawada …Appellant/R-3 And Smt. Rangavajhula Usha Venkata Ramana Subbalakshmi and 7 others …Respondents/ Petitioners THE HON’BLE MR JUSTICE B. PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO MACMA NO.462 OF 2007 JUDGMENT: (Per Hon'ble Sri Justice R.Kantha Rao,J) This appeal is filed by the appellant-Oriental Insurance Company Limited which is the third respondent before the Tribunal against the award, dated 27.04.2005 passed by the Motor Accidents Claims Tribunal-cum-VII Additional District Judge (Fast Track Court), Visakhapatnam in O.P.No.291 of 2002. On account of the death of one Venkateshwara Rao who was employed as Assistant Branch Manager in L.I.C. of India at Kavali branch, Nellore District, the respondents filed claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.20,00,000/-. Briefly stated, the case of the respondents/claimants is that on 19.08.2001 while the deceased was coming by his Maruthi Car bearing No. AP-31-8538 at about 9.00 p.m. and when it reached near Kapparala Tippa, a lorry beaing No. AP-16-W-6175 came in the opposite direction in a rash and negligent manner, hit the Maruthi Car, as a result of which, the deceased sustained grievous injuries, and immediately, he was shifted to Government Hospital, Kavali where he succumbed to the injuries while undergoing treatment. The respondents 1 to 5 who are the legal representatives of the deceased filed the claim petition before the Tribunal and the learned Tribunal after making an enquiry into the claim, awarded compensation of Rs.16,28,864/- as against the claim of Rs.20,00,000/- made by the claimants. The appellant/O.I.C. challenged the award in this appeal urging the following contentions: i) The Tribunal’s finding fastening the liability only on the insured and insurer of the vehicle i.e. lorry bearing No. AP-16-W-6175 despite there is contributory negligence of 50% on the part of the deceased who was driving the Maruthi Car bearing No. AP-31-8538 is erroneous. ii) The Tribunal went wrong in arriving at the contribution available to the dependants at Rs.12,413/- per month without making the compulsory deductions, such as, GPF, PF, loan interest and vehicle advance etc. and thus considered only the gross salary; and iii) The Tribunal committed a mistake in applying the multiplier relevant to the age of the deceased mentioned in the Second Schedule annexed to Section 163-A of the Motor Vehicles Act instead of selecting the multiplier from the table given in Bhagwan Das v. Mohd. Arif, 1987(2) ALT 137; Heard the learned counsel appearing for the appellant- insurance company as well as the learned counsel appearing for the respondents. POINT NO.1: According to the claimants, the accident took place at Kapparala Tippa on the National Highway while the deceased was driving the Maruthi car and when the said lorry which was driven in a rash and negligent manner, dashed the maruthi car and as such it was only due to the fault of the driver of the lorry. PW-2, an independent witness who was examined on behalf of the claimants has categorically stated in his evidence that he was going to Kavali from Alluru and according to him, the lorry which was coming behind the maruthi car which was proceeding on the left side, over took the cyclist and dashed the Maruthi car from right side and the deceased was crushed to death in the Maruthi car itself. The evidence of this witness clearly discloses that the Maruthi car was proceeding on the left side of the road and the lorry hit the front portion of Maruthi car. In our view, the learned Tribunal has rightly placed reliance on the evidence of PW-2 who is an independent witness and further the manner in which the accident had taken place also indicates that it was only on account of the rash and negligent driving of the driver of the lorry and merely because two vehicles involved in the accident, without there being any convincing evidence, it cannot be said that there is contributory negligence on the part of the deceased also. We absolutely see no merits in the contention of the appellant-insurance company that the deceased also contributed to the accident. POINT NO.2: The Tribunal considered the basic pay and dearness allowance as total salary of the deceased and deducted profession tax, medi-claim, G.T.I. and that of recreation club of a total sum of Rs.255.08 ps. and the remaining salary amount was considered for the purpose of computing the compensation. However, we agree with the contention urged by the learned counsel appearing for the appellant/insurance company that the learned Tribunal ought to have taken the net salary into consideration after making the deductions relating to G.P.F., loan interest etc. as held by the Apex Court in ASHA v. UNITED INDIA INSURANCE CO.LTD., 2004 ACJ 448 (SC). The deceased was aged 39 years on the date of the accident, he had a long career ahead of him and in view of the fact that the deceased had a stable and permanent job, he would have been promoted to higher positions and he would have earned more salary had he been alive. But, the learned Tribunal did not take into consideration the future prospects of the deceased to arrive at the actual income of the deceased for the purpose of computing compensation. Therefore, omission to make certain deductions is of no consequence because no amount was added towards future prospects. POINT NO.3: It is not possible for us to accede to the contention urged by the learned counsel appearing for the appellant that the learned Tribunal ought not to have applied the multiplier mentioned in the Second Schedule annexed to Section 163-A of the Motor Vehicles Act. In catena of decisions, the Apex Court held that even in claims of compensation filed under Section 166 of the Motor Vehicles Act, the multiplier given in the Second Schedule can be applied. Further, in a recent decision in SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATIOIN AND ANOTHER, 2009(2) L.S. 29 (SC), the Apex Court after reviewing several leading judgments of the Apex Court, issued guidelines for the purpose of computing the compensation in a uniform way and to avoid conflicting judgments in relation to matters of the motor vehicle accident compensation. The Apex Court also furnished a table in the said judgment. As per the table given by the Apex Court, the multiplier relevant to the age of the deceased (39 years) is 15. In any event, there is absolutely no force in the contention urged by the learned counsel appearing for the appellant that the Tribunal ought to have taken the multiplier given in the case of 1987(2) ALD 137. We have already mentioned that the learned Tribunal did not at all consider the future prospects of the deceased who had a stable and permanent job in L.I.C. of India. If the future prospects are added to the actual salary of the deceased and the compensation is computed basing on the judgment of the Apex Court in Sarla Verma’s case, it works out more than what was granted by the Tribunal and therefore, it cannot be said that the compensation granted by the learned Tribunal is on higher side. Thus, we also see no force in the contentions 2 and 3 urged on behalf of the insurance company and we answer the points 2 and 3 against the appellant-insurance company. In the result, the appeal fails and the same is dismissed without any order as to costs. ______________ B.PRAKASH RAO,J _______________ Date:16.07.2010. R. KANTHA RAO, J CCM THE HON’BLE MR JUSTICE B. PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO MACMA NO.462 OF 2007 (Per Hon'ble Sri Justice R.Kantha Rao,J) DATE:16.07.2010