HON’BLE SRI JUSTICE B.N. RAO NALLA M.A.C.M.A. No.2391 of 2007 DATED: 09.09.2010 Between: M/s. New India Assurance Company Limited .. Appellant And Ketavath Laxmi and five others .. Respondents JUDGMENT: Heard both sides. The 2nd respondent – Insurance Company in the O.P.No.324 of 2006 filed this Appeal aggrieved by the orders dated 14-03-2007 passed by the MACT–cum–Principal District Judge, Medak, whereby Rs.7,50,000/- was awarded to the petitioners therein as compensation against their claim of Rs.10,51,000/-. For the sake of convenience, the parties are referred to as they are arrayed in the O.P. The facts of the case in brief are that on 18-05-2006, at about 01:30 P.M., the deceased was riding Hero Honda Splendor Motor Cycle bearing No.AP23/J-1471, and when he reached the limits of Kulabgoor village, a lorry bearing No. AP 28/V-0580, driven by its driver, came at high speed from the opposite direction in a rash and negligent manner and dashed against the motor cycle, as a result, the deceased fell down on the road and right front wheel of the lorry ran over him, causing his instantaneous death. The Police, Rural Police Station, Sangareddy, registered a case in Crime No.86 of 2006 under Section 304-A IPC against the driver of the lorry. The 1st respondent-owner of the lorry remained ex parte. The 2nd respondent-Insurance Company filed written statement denying the claim of the petitioners including involvement of the lorry in the accident and the rash and negligent driving on the part of its driver, and the petition was bad for non-joinder of necessary parties of the owner and the driver of the lorry. It is also denied that the driver of the lorry was holding effective driving licence at the time of the accident and the petitioners are the legal heirs of the deceased and the claim is excessive. It is specifically alleged that the accident had occurred due to contributory negligence on the part of the deceased-motorcyclist. The 1st petitioner, wife of the deceased, got herself examined as PW-1 besides examining PW-2, who is an eyewitness to the accident and got marked Exs.A-1 to A-7 in support of her case. However, no witnesses were examined nor got marked any documents on behalf of the 2nd respondent-Insurance Company, except marking of Ex.B-1 - Insurance Police by consent. The Tribunal framed relevant issues as to the rash and negligent driving of the driver of the lorry, as to the petitioners’ entitlement to claim compensation, quantum thereof etc., and relying on the evidence of PW1 as well as the eye witness PW2 coupled with Ex.A1 - FIR, Ex.A2 - charge sheet and Ex.A5 - Motor Vehicle Inspector’s report, came to the conclusion that the accident had occurred due to the rash and negligent driving on the part of the driver of the lorry resulting in the instantaneous death of the deceased. The Tribunal mostly relied on the evidence of PW2, who reiterated the facts as stated in the claim petition leading to the accident and the instantaneous death of the deceased. PW2 also denied the suggestion that the accident occurred due to rash and negligent riding of the motorcycle by the deceased and that the accident did not occur due to the rash and negligent driving of the driver of the lorry. Moreover, according to Ex.A5 – M.V.I. report, the accident did not occur due to any mechanical defect in the lorry. Further, Ex.A5 also disclose that the driver of the lorry was holding a valid driving licence at the time of the accident. While answering the second issue as to the entitlement of the petitioners to claim compensation and the quantum as well as the liability of the respondents, the Tribunal, believing the evidence of PW1, who is a self-interested witness and the wife of the deceased, that the deceased was doing business of manufacturing and selling bricks, fixed his daily earnings at Rs.200/- even though no document was filed to prove the earnings of the deceased. Therefore, it is the case of the appellant – Insurance Company that the Tribunal erred in fixing Rs.2,000/- as earnings of the deceased. On the other hand, it is the case of the claimants that the deceased was, in fact, carrying on the business of manufacturing and selling bricks and he was also a commission agent, besides being a Supervisor for the manufacturing and selling of bricks. Therefore, it is contended that the Tribunal, having regard to the facts of the case, and also believing the version of illiterate and ignorant, but truthful wife of the deceased, fixed the income of the deceased at Rs.200/- per day. The Tribunal, considering the age of the deceased as 32 years, as per Ex.A-6 Post Mortem report, applied multiplier as “15” and arrived at Rs.7,20,000/- towards future loss of earnings. However, it is contended on behalf of the claimants that as per the decision of the Apex Court in SARLA VARMA v. DELHI TRANSPORT CORPORATION[1] the proper multiplier for a person aged 32 years is 16. It is also contended that as per the decision, when there are more than four dependants, 1/4th of the monthly earnings of the deceased has to be deducted towards his personal expenses. Therefore, it is contended that the Tribunal has erred in taking appropriate multiplier “15” instead of “16” and deducing 1/3rd of the monthly earnings of the deceased instead of 1/4th, and the same needs to be rectified appropriately by this Court. Heard the learned counsel for both the parties and perused the material placed on record. A perusal of the impugned order of the Tribunal reveals that the deceased was earning Rs.200/- per day i.e. Rs.6,000/- per month, out of which 1/3rd was deducted towards his personal expenses, and thus, his contribution towards his family was fixed at Rs.4,000/- per month, which comes to Rs.48,000/- per annum towards loss of dependency on account of the death of the deceased. There is, of course, an element of truth in what has been contended on behalf of the claimants, however, the fact remains that the Tribunal, after considering the pros and cons of the matter, fixed the monthly earnings of the deceased at Rs.200/- per month, as such, in the opinion of this Court, it does not warrant any interference. However, as contended by the learned counsel for the claimants, 1/4th of the monthly earnings of the deceased is liable to be deducted instead of 1/3rd towards his personal expenses since there are more than four dependants and the appropriate multiplier in case where the age of the deceased is 32 years, is 16 at the time of his death in the accident. If the same is taken into consideration, the monthly contribution comes to Rs.6,000/- - 1/4th = Rs.4,500 x 12 = Rs.54,000/-. Therefore, Rs.54,000 x 16 = Rs.8,64,000/-. Thus, the annual loss of dependency to the dependants of the deceased, on account of the death of the deceased comes to Rs.8,64,000/-. However, as per the decision in Sarla Varma’s case, the 1st petitioner, wife of the deceased, is entitled to Rs.10,000/- towards loss of consortium instead of Rs.15,000/- and Rs.5,000/- instead of Rs.15,000/- towards loss of estate. Thus, the respondents-claimants are entitled to a total compensation of Rs.8,79,000/-. So far as liability to pay the compensation amount to the respondent Nos.2 to 4–claimants is concerned, Ex.B-1 - Policy was admittedly in force by the date of the accident, and the same would disclose that the owner of the lorry validly insured the vehicle with the appellant-Insurance company, as such, both the owner of the lorry and the Insurance company have got to be fastened with the joint and several liability to pay the aforesaid compensation amount to the respondent Nos.2 to 4–claimants with interest at 7.5% per annum as fixed by the Tribunal. With the above modification of the impugned order, this appeals stands dismissed. No order as to costs. _________________ B.N. RAO NALLA, J. 09.09.2010 Ktl / bcj [1] 2009 ACJ 1298