THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD MACMA NO.2467 OF 2006 JUDGMENT: (Per the Hon’ble Sri Justice N.V. Ramana) This appeal by the Insurance Company, is directed against the judgment and decree dated 19.6.2006 passed in M.V.O.P.No.6 of 2004 by the Chairperson, Motor Accidents Claims Tribunal-cum- District Judge, Kadapa, whereby and whereunder the learned District Judge granted an amount of Rs.17,50,000/- towards compensation to the respondents-claimants. The brief facts of the case are that on 25-5-2003 at about 4.35 p.m while the deceased-Keerthipati Venkatarama Raju along with 5th respondent herein were proceeding on Yamaha motor cycle bearing No.AP-04-F-8291, and when they reached near Mukkavaripalli Sudarshanareddy field, they met with an accident, when they tried to avoid a lorry coming in the opposite direction. In the accident, the deceased suffered grievous injuries, and while undergoing treatment at SVIMS Hospital, Tirupati, he succumbed to his injuries. It is the case of the claimants that before his death in the accident, the deceased was hale and healthy. He was working as Line Inspector in AP TRANSCO and getting salary of Rs.17,577-50 p.m. He was contributing the entire salary to his family. On account of his death, they have lost dependency, and contended that they are entitled to Rs.20,86,000/- towards compensation, but restricted their claim to Rs.17,50,000/-. The appellant-Insurance Company filed a written statement in the said OP denying the averments. They stated that they are not liable to pay the compensation to the claimants, because the 5th respondent herein, who was riding the motor-cycle, at the time of accident, possessed only learner’s licence. They further stated that the lorry was abandoned on the road side on Rajampet Kodur, which is a main road, and the 5th respondent, who was driving the motor cycle caused the accident, by hitting the stationed lorry. The O.P. is bad for non-joinder of the owner of the lorry and the insurer of the said stationed lorry. The claimants are not entitled for any compensation. Basing on the respective pleadings of both the parties, the Tribunal below framed the following issues for trial. (1) Whether the deceased Keerthipati Venkatarama Raju died in motor vehicle accident on 25-5-2003 due to rash or negligent driving of Yamaha crux motor cycle bearing No.AP-04-F-8291 belonging to R1 and insured with R2, by its driver? (2) Whether the petitioners are entitled for compensation, if so to what amount and from whom? (3) To what relief? To substantiate their claim, the claimants examined PWs. 1 to 3 and got marked Exs.A1 to A11. On behalf of the respondents, no oral or documentary evidence was adduced. On a perusal of the entire material on record and on hearing the learned Counsel for both the parties, the Tribunal came to the conclusion that the accident occurred due to rash and negligent riding of the rider of the motor cycle by the 5th respondent. However, the Tribunal held that the appellant-Insurance Company did not place any evidence to establish that at the time of accident, the 5th respondent herein was holding only learner licence. Therefore, the Tribunal held that the appellant-Insurance-Company is liable to indemnify the liability of the rider and owner of the motor-cycle. Thus the Tribunal, allowed the OP, granting an amount of Rs.17,50,000/- towards compensation. Aggrieved by the said order, the appellant-Insurance Company filed the present appeal. Learned counsel appearing on behalf of the appellant contends that the compensation awarded by the Tribunal is on higher side and needs to be reduced. He further contends that the Tribunal ought to have impleaded the owner and insurer of the lorry as proper and necessary parties. He also contends that the Tribunal ought to have taken the net salary of the deceased while awarding compensation. Heard the leaned counsel appearing for the appellant-Insurance Company, and perused the material available on record. It is the contention of the appellant-Insurance Company that the O.P. is bad for non-joinder of the owner of the lorry and the Insurance Company which the lorry was insured. To consider this contention, it would be appropriate to examine the evidence of P.W.2, who is an eye-witness to the incident. Admittedly, at the time of accident, the 5th respondent herein was riding the motor cycle, while the deceased was riding pillion. P.W.2, who is an eye-witness to the incident stated that while he and his friend were proceeding towards Obulavaripalli and when they reached Mukkavaripalli, a motorcycle going in front of them, driven by its driver in a rash and negligent manner, at high speed lost control and hit a road side tree, and as a result thereof, the rider of the motorcycle and the pillion rider fell down. The pillion rider sustained serious head injury, and that himself and others shifted the rider of the motorcycle and pillion rider to government hospital for treatment in a jeep. He further stated that he came to know later that the pillion rider (deceased) died. He emphatically stated that the accident took place due to the rash and negligent riding of the motor cycle by the 5th respondent and denied the suggestion made 5th respondent-owner and rider of the motor cycle, adopted by the appellant-Insurance Company, that he did not report to the police that the accident took place due to the rash and negligent riding of the motor cycle by the 5th respondent, but occurred when the 5th respondent tried to avoid collusion with an oncoming lorry. Even as per Ex.A1-FIR, Ex.A3-certified copy of inquest report and Ex.A8- certified copy of charge sheet, it is evident that the accident occurred due to the rash and negligent riding of the motor cycle by the 5th respondent. The appellant-Insurance Company, except contending that the accident was caused when the 5th respondent who was riding the motor cycle hit a stationed lorry, and the O.P. is bad for non-joinder of the owner of the lorry and the Insurance Company with which the lorry was insured, did not produce any material to show that the lorry was involved in the accident. While the evidence of P.W.2-eye witness to the incident read with Exs. A1, A3 and A8, clearly shows that the accident took place due to the rash and negligent riding of the motor cycle by the 5th respondent. In that view of the matter, it cannot be said that the Tribunal has erred in not making the owner of the stationed lorry and the Insurance Company with which it was insured, as party-respondents, and more so when the appellant-Insurance Company failed to prove that the lorry was involved in the accident. The contention of the learned Counsel for the appellant that at the time of accident, the rider of the motor cycle was holding only learner license, and as he had no valid licence, liability to pay the compensation to the claimants, cannot be fastened on the appellant, cannot be accepted because the appellant-Insurance Company did not adduce any material to show that at the time of accident, the 5th respondent had no valid licence and he was holding only learner’s licence. So far as quantum of compensation is concerned, it is not disputed by the appellant-Insurance Company that at the time of his death in the accident, the deceased was working as Lineman in AP Transco. As evident from Ex.A4-salary certificate, the deceased was drawing gross-salary of Rs.17,702/- p.m. i.e. Rs. 2,12,424/- The deceased has wife and three children at the time of his death. The Tribunal, admittedly deducted one-third of the salary of the deceased towards his personal expenses. But as per the judgment of the Apex Court in Sarla Verma v. Delhi Transport Corporation[1], where the deceased has five to six dependants, one-fourth of the salary should be deducted towards personal expenses of the deceased. Since the deceased was having four dependants, one-fourth of the salary of the deceased should be deducted. On such deduction (Rs.2,12,424/- minus Rs. 53,106/-), the contribution of the deceased to his family would come to Rs.1,59,318/- per annum. The deceased, admittedly, at the time of his death in the accident was aged 50 years. As per the judgment of the Apex Court in Sarala Verma case, the multiplier applicable to person aged 50 is ’13’. If the annual loss of dependency is multiplied by 13, the loss of dependency on account of the death of the deceased to the claimants (Rs.1,59,318/- x 13) would come to Rs. 20,71,134/-. Apart from that, the claimants are entitled to compensation of Rs.5,000/- each under the head “funeral expenses” and claimant No.1 is entitled to compensation under the head “loss of consortium”. Thus, the claimants, in all are entitled to Rs.20,81,134/-. In view of the above, it cannot be said that the compensation awarded by the Tribunal to the claimants is excessive and needs reduction. Even though the claimants are entitled to more compensation than what they claimed, as discussed above, but since they have restricted their claim to only Rs. Rs.17,50,000/-, they are entitled to only for the said sum. However, having regard to the judgment of the Apex Court in Sarla Varma Case, the interest payable on the compensation is reduced from 7.5% to 6% p.a. In the result, the appeal is allowed in part. However, there shall be no order as to costs. _______________ N.V.RAMANA,J ____________________ P.DURGA PRASAD,J Dated: 19-12-2011 Nn THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD MACMA NO.2467 OF 2006 (Judgment delivered by the Hon’ble Sri Justice N.V. Ramana) 19.12.2011 [1] (2009) 6 SCC 121