HON’BLE SRI JUSTICE K.G.SHANKAR CMA No.562 of 2009 Date: 31-10-2012 Between: D. Shahajan and 2 others … Appellants/ Petitioners AND S. Muthuswami and 3 others. … Respondents/ Respondents HON’BLE SRI JUSTICE K.G.SHANKAR MA CMA No.562 of 2009 JUDGMENT: The appeal is laid by the claimants. The claimants filed MVOP No.217 of 1998 before the Chairman, Motor Accident Claims Tribunal-cum-I Additional District Judge, Chittoor, under Sections 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.3,00,000/- for the death of the deceased-Ameer Johan in a vehicular accident. After full-fledged trial, the Tribunal awarded compensation at Rs.1,16,500/- together with interest at 9% per annum from the date of petition till deposit. Aggrieved by the same, the present appeal is laid. 2. The first claimant-appellant is the widow of the deceased-Ameer John. Claimants 2 & 3-appellants 2 & 3 are the son and daughter of the deceased. The deceased was statedly working as a driver of the Tempo bearing registration No.AP 03U 778 belonging to the third respondent. He was allegedly drawing a salary of Rs.1,000/- per month and batta at Rs.100/- per day. He was said to be 34 years old at the time of the accident. 3. On 18.08.1997 at about 4.30 a.m., the driver of the offending lorry of the first respondent bearing registration No.PY 01E 0696 drove the lorry in the opposite direction while the deceased was driving the tempo. Allegedly, the driver of the lorry drove the lorry in a rash and negligent manner and dashed against the tempo driven by the deceased. The deceased met with instantaneous death in the accident. The claimants, consequently, sought for compensation at Rs.3,00,000/-. 4. The first respondent-owner of the offending lorry and the third respondent-owner of the tempo remained ex parte. The second respondent is the insurer of the lorry. The fourth respondent is the insurer of the tempo. The insurers of the lorry and tempo, however, contested the case. The Tribunal held that it was a case of contributory negligence on the part of the deceased himself and that the proportion of negligence of the driver of the lorry and the deceased was 50% each. As the deceased was an employee of the third respondent and not the owner of the tempo, the Tribunal directed that compensation to be paid by respondents 1 & 2 is one set and respondents 3 & 4 is another set in equal halves. This finding has not been questioned either by the insurers or by the owners of the vehicles. Consequently, I have no alternative but to hold that respondents 1 & 2 in one set and respondents 3 & 4 in another set are jointly and severally liable to satisfy the claim in equal halves. The only question is as to the quantum of compensation, since the claimants preferred the appeal questioning the quantum of compensation awarded. 5. The deceased was said to be driver of the van and was earning Rs.1,000/- per month as wages. It is also the case of the claimants that the deceased was paid Rs.100/- per day towards batta. In support of their claim, the claimants examined PW.3. Although the third respondent remained ex parte in the case, he came forward to depose as PW.3. He supported the case of the claimants deposing that he was initially paying Rs.50/- per day as batta and that he was paying at Rs.70/- per day by the date of the death of the deceased. He also filed Ex.A.5 salary certificate. 6. Sri Asad Ahamed, learned counsel for the claimants contended that the batta as claimed shall be included in the salary and that the salary, therefore, shall be computed at Rs.4,000/- per month for the purpose of calculation. It may first be noticed that PW.3 deposed that the batta paid to the deceased was Rs.70/- per day. Added to it, it is not the case of anybody that the deceased could be engaged every day in a month. When the deceased was a paid driver, I consider that the deceased was working for a period of 22 days in a month. Consequently, the batta that the deceased would secure is at Rs.1,540/- per month. If the same is included to the salary, the total income of the deceased would be Rs.2,540/- per month. The annual income of the deceased thus was Rs.30,480/-. 7. The deceased left three dependents in the wife, son and daughter. 1/3rd of the income of the deceased, therefore, deserves to be deducted towards the personal and living expenses of the deceased. If 1/3rd of Rs.30,480/- is deducted, the amount would be Rs.20,320/-. The annual loss of dependency on account of the death of the deceased is liable to be worked out at Rs.20,320/-. The claimants asserted that the deceased was 34 years old at the time of his death. Although the deceased was a driver, his driving licence was not produced to determine the correct age of the deceased. Ex.A.4 certified copy of the post-mortem report describes the age of the deceased as 44 years. In the absence of contrary evidence, I agree with the contention of Sri R. Venkata Rao, learned counsel for the second respondent that the deceased was 45 years old at the time of his death. Consequently, multiplier ‘14’ would be the appropriate multiplier. If Rs.20,320/- is multiplied by ‘14’, the amount would be Rs.2,84,480/-. The claimants are entitled to compensation at Rs.2,84,480/- towards loss of dependency, loss of income and future expectancy of life. The claimants are entitled to compensation at Rs.2,000/- towards funeral expenses and Rs.10,000/- towards loss of estate. As the deceased was 45 years old, the first claimant shall be entitled to compensation towards loss of consortium at Rs.5,000/-. 8. The claimants, accordingly, are entitled to compensation at a) Compensation towards loss of income and future expectancy of life .. Rs.2,84,480/- b) Compensation towards funeral expenses .. 2,000/- c) Compensation towards loss of estate .. 10,000/- d) Compensation towards loss of consortium in favour of the first claimant .. 5,000/- ------------------ Total .. Rs.3,01,480/- ============ 9. Where the accident occurred in 1997, I consider that the claimants shall be entitled to interest at 6% per annum only. The claimants/appellants are awarded compensation at Rs.3,01,048/- together with interest at 6% per annum from the date of petition till deposit. Respondents 1 & 2 in one set and respondents 3 & 4 in another set are jointly and severally liable to satisfy the claim of the appellants/claimants in equal halves. They shall deposit the awarded amount to the extent of their shares within one month from today. 10. Out of the awarded amount, the first claimant shall be entitled to Rs.1,21,480/-. Claimants 2 and 3 shall be entitled to Rs.90,000/- each. Each of the claimants is entitled to interest over their respective shares of the awarded amount. 11. After deposit, the claimants shall be entitled to withdraw Rs.50,000/- each at the first instance. The balance shall lie in fixed deposit for a period of three years at the end of which, the claimants shall be entitled to withdraw balance together with accrued interest. 12. Accordingly, the appeal is allowed in part. No costs. _________________ K.G. SHANKAR, J Date: 31.10.2012 Isn