IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE NINTH (9TH) DAY OF NOVEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.1966 of 2009 Between: The Oriental Insurance Co. Ltd., rep. by its Divisional Manager, Rajahmundry … Appellant And: Avapati Annapurana others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.1966 of 2009 JUDGMENT: This appeal is directed against the order dated 25.11.2002 in OP No.230 of 1999 on the ﬁle of the MACT cum District Judge, East Godavari at Rajahmundry, wherein the said claim application ﬁled by the respondents 1 to 4 herein, was allowed in part, awarding compensation of Rs.1,54,400/- with interest at 9% per annum from the date of petition. 2. Heard both sides. Perused the record. 3. The respondents 1 to 4 herein ﬁled claim application seeking compensation of Rs.1,75,000/- for the death of the deceased A.Venkata Ramadas @ Ayya, who died in a motor vehicle accident that occurred on 18.08.1998. The ﬁrst claimant is the wife and the claimants 2 and 3 are minor children and 4th claimant is the mother of the deceased. According to the claimants, on the date of the accident, the deceased boarded an auto bearing No.AP 20 T 5297 at Gokavaram to go to his native place Kothapalle and near Rajupalem culvert, due to the rash and negligent driving by its driver, the auto dashed against van bearing No.AP 5 U 753 2374 which was coming in the opposite direction. The deceased sustained multiple injuries, including head injury and succumbed on the way to the hospital. It is further pleaded that the deceased was aged 30 years and was earning Rs.3000/- per month by doing goldsmith work. 4. The first respondent in the OP is the driver cum owner of the auto, 2nd respondent in the OP was the insurer of the auto. The 3rd respondent was the driver of the van and 4th respondent was the owner of the van and 5th respondent was the insurer of the van. Both the insurers ﬁled counter, contesting the OP. The ﬁrst respondent in the OP, driver cum owner of the auto ﬁled counter, admitting the accident and also factum of the deceased sustaining injuries and contended that the accident occurred due to the rash and negligent driving of the van by its driver. The 3rd and 4th respondents in the OP, who are driver and owner of the van, remained ex-parte. 5. During trial, PWs.1 and 2 were examined and Exs.A.1 to A.4 were marked on behalf of the claimant. RW.1 was examined and Exs.B.1 to B.3 were marked on behalf of the respondents. On a consideration of the evidence available on record, the Tribunal held that the accident occurred on account of the collision between the two vehicles owing to rash and negligent driving on the part of the drivers of both the vehicles and therefore, the drivers and owners of both the vehicles are equally responsible for payment of the compensation. The Tribunal further held that the 2 nd respondent in the OP, who is the appellant-insurer of the auto, is also jointly and severally liable to pay the compensation to the extent payable by the ﬁrst respondent in the OP-driver cum owner of the auto. The Tribunal however, exonerated the 5 th respondent in the OP, who is 8th respondent herein-insurer of the van on the ground that the cover note of the van AP 5 U 2374 is not tallying with the particulars furnished by the insurer. Regarding quantum, the Tribunal held that the claimants are entitled for total compensation of Rs.1,54,400/- and accordingly, passed the award with interest at 9% per annum. Aggrieved by the same, the appellant-insurer of the auto ﬁled the present appeal. 6. The ﬁnding that the accident occurred due to the composite negligence of the drivers of both the vehicles is not seriously challenged. The said ﬁnding even otherwise is duly supported by Ex.A.1 FIR and Ex.A.3 MV Inspector’s report, which showed that there was head on collision between two vehicles. 7. Regarding the quantum, the Tribunal has taken the income of the deceased at the rate of Rs.30/- per day i.e., Rs.900/- per month and after deducting 1/3rd towards personal expenses, estimated the contribution of the deceased to the family at Rs.7200/- per annum and applied the multiplier of ‘17’ for the age of 35 years and arrived at the loss of dependency in a sum of Rs.1,22,400/-. Ex.A.1 FIR shows the occupation of the deceased as goldsmith, but the claimants have not adduced any evidence in support of the same that he was earning Rs.3000/- per month. In the absence of such evidence, average income of the deceased taken by the Tribunal at Rs.30/- per day can be accepted. Ex.A.4 post-mortem certiﬁcate shows that the deceased was 35 years. As per the decision of the apex Court in Sarla Verma’s case [(2009)9 SCC 121], the suitable multiplier would be ‘16’ and applying the same, the loss of dependency works out to Rs.7200/- x 16 = Rs.1,15,200/-. The claimants are entitled for a sum of Rs.5,000/- towards funeral expenses, Rs.5000/- towards loss of estate and the ﬁrst claimant is entitled for a sum of Rs.10,000/- towards loss of consortium as per the above decision i n Sarla Verma’s case. Thus the claimants would be entitled for a total compensation of Rs.1,35,200/-, with interest at 6% per annum. 8. Insofar as the appellant’s liability is concerned, as the accident is shown to have occurred due to the composite negligence of both the drivers of the two vehicles, ﬁrst respondent in the OP, who is the owner cum driver of the auto and 3rd respondent in the OP, who is the owner of the van, are equally liable to pay the above compensation amount in the ratio of 50:50. Admittedly, the policy issued by the appellant- insurer of the auto was in force as on the date of the accident and therefore, the appellant-insurer cannot seek to avoid its liability for payment of 50% of the above said compensation. The 5th respondent in the OP (R.8 herein) who is the insurer of the van was exonerated on the ground that the cover note particulars furnished in the claim petition were not tallying and as per the evidence of RW.1 coupled with Ex.B.1 insurance register, the van bearing No.AP 5 U 2374 was not at all insured with 8th respondent herein and Ex.B.2 investigation report also conﬁrms the same. It is also borne out by the evidence that 8th respondent-insurer issued a notice Ex.B.3 to the owner of the van but he failed to produce the insurance particulars. Under those circumstances, as the claimants failed to establish that the van was insured with 8th respondent herein, the Tribunal has rightly exonerated the 8th respondent herein from the liability. The claimants have not questioned the same by filing any appeal. 9 . In the circumstances, the impugned award passed by the Tribunal is modiﬁed to the eﬀect that the claimants are entitled for a total compensation of Rs.1,35,200/- with interest at 6% per annum from the date of petition and ﬁrst respondent in the OP driver cum owner of the auto and the appellant herein insurer of the auto are jointly and severally liable to pay 50% out of the said compensation with proportionate interest and costs. The 3rd respondent in the OP-driver and 4th respondent in the OP-owner of the van, are jointly and severally liable to pay the remaining 50% of the compensation with proportionate interest and costs. The 5th respondent in the OP (8th respondent herein) was rightly exonerated from the liability to pay the compensation. 10. In the result, the appeal is disposed of as stated above. No order as to costs. _________________ G.V.SEETHAPATHY, J Date: 09.11.2011 bss