HON’BLE SRI JUSTICE GHULAM MOHAMMED M.A. C.M.A. No :939 of 2008 JUDGMENT: This appeal is filed by the appellants-claimants challenging the order and decree dated 17.1.2008 made in M.V.O.P. No. 3040 of 2005, on the file of the IX Additional Chief Judge, Fast Track Court, City Civil Court, Hyderabad. The appellants, are the husband and daughter of the deceased Kanaka Durga. It is the case of the appellants that on 6.11.2005, at about 5.30 p.m., while the appellant No.1 was proceeding on hero honda bearing No. AP 29 AL T/R 8259 along with the deceased from ECIL X roads towards A.S. Rao Nagar Park and while he was crossing a stationed RTC bus, a tipper bearing No. AP 7 W 2190, being driven by its driver in a rash and negligent manner came in a high speed and dashed against the vehicle of the 1st appellant. As a result, the appellant’s wife and his daughter fell down under the wheels of the tipper, due to which, the deceased sustained grievous injuries. Immediately, she was shifted to Yashoda Hospital, where she succumbed to the same while undergoing treatment. The appellants filed the aforementioned O.P. before the Court below claiming compensation of Rs. 5,00,000/-. Before the Tribunal, the 1st respondent remained ex-parte. The 2nd respondent-insurance company has filed a counter affidavit stating that the accident did not occur on account of the rash and negligent driving on the part of the driver of the tipper. It also disputed the age and earnings of the deceased. Based on the above pleadings, the following issues were settled for trial. 1. Whether the accident took place on 6.11.2005 at about 5.30 p.m. due to rash and negligent driving of lorry bearing No. AP 07 W 2190 by its driver. ? 2. Whether the petitioner is entitled to compensation ? If so, to what amount and from whom ? 3. To what relief ? Before the Tribunal, on behalf of the appellants-claimants, the husband of the deceased got himself examined as P.W.1 and got marked Exs. A1 to A7. Though no oral evidence was let in on behalf of the 2nd respondent-insurance company, however, Ex.B1,insurance policy was marked with consent. On a perusal of the oral and documentary evidence, the Tribunal came to the conclusion that there was contributory negligence on the part of the 1st appellant as well as the driver of the tipper and determined the same at 25% on the part of the 1st appellant and 75% on the part of the driver of the tipper. While taking the monthly income of the deceased as Rs.15000/- per annum and after deducting 1/3rd of the amount towards personal expenses, by applying the multiplier of 18, it determined the loss of dependency at Rs.1,80,000/-. In addition to this, the appellants were also granted an amount of Rs. 2,000/- towards funeral expenses, Rs.2,500/- towards loss of estate; Rs. 5,000/- towards loss of consortium and Rs.2,000/- to the 1st appellant towards medical expenses. The Tribunal granted an amount of Rs.1,91,500/- as compensation. However in view of the fact that the 1st appellant contributed to the accident to the extent of 25%, it granted an amount of Rs.1,43,625/- as compensation. Being dissatisfied with the amount of compensation awarded by the Tribunal, the appellants-claimants filed the present appeal. Learned counsel appearing for the appellants- claimants contended that since the deceased is a house wife and since there is no evidence with regard to her income, the Court below ought to have taken Rs.3,000/- per month as her income instead of Rs.15,000/- per annum. It is further stated that the Court below did not award any amount towards loss of love and affection to the 2nd appellant, who lost her mother. He further contended that the Court below has only granted a meagre amount of Rs.1,43,625/- as compensation when their claim was much more. He, therefore, prayed that the appeal be allowed and the compensation be enhanced. On the other hand, learned counsel for the 2nd respondent, supported the impugned Award and stated that the same does not require any interference. The points that arise for consideration in this appeal are whether the 1st appellant was guilty of contributory negligence and whether the dependency assessed by the Court below was proper? In the instant case, there is no dispute about the occurrence of the accident. There is also no dispute about the fact three persons were travelling on the Hero Honda at the relevant point of time. As per Section 128 of the Motor Vehicles Act, triple riding is prohibited. Since in the instant case, it is admitted that there was triple riding on the Hero Honda, therefore, a presumption could be drawn that the rider of the two wheeler was discomforted by reason of allowing two pillion riders and thus contributed to the accident. Therefore, the contributory negligence as fixed by the Court below at 75% on the part of the driver of the tipper and 25% on the driver of the two wheeler, i.e., 1st appellant needs no interference. In so far as income of the deceased is concerned, according to the appellants-claimants, the deceased was a house wife and was doing tailoring work and cloth business at home and by doing the said business she was earning an income of Rs.5,000/- per month. Except the oral evidence of P.W.1, there is no evidence on record to show that the deceased was earning that much amount. The Court below has fixed the income of the deceased at Rs. 15,000/- per annum, as per II Schedule. However, in the instant case, I feel it appropriate to take the notional income into consideration instead of the income as per the II Schedule. Therefore the notional income of the deceased is taken at Rs.3,000/- per month and Rs.36,000/-annually and after deducting 1/3rd of the amount towards personal expenses, the net contribution of the deceased is assessed at Rs.24000/-. Since the deceased was 27 years old as on the date of the accident, as per the judgment of the Apex Court in SARLA VERMA vs. DELHI TRANSPORT CORPORATION &OTHERS([1]), the appropriate multiplier that would be applicable to the age of the deceased would be 17 and by applying the said multiplier, the loss of dependency is assessed at Rs.4,08,000/- (Rs.24000 x 17). Since it has been held that the 1st appellant also contributed to the accident to an extent of 25%, to that extent, the compensation amount has to be deducted and after deducting the said amount, appellants are entitled for a total sum of Rs. 3,06,000/- (Rs.4,08,000 x 25%). In addition to this, the appellants are entitled to an amount of Rs. 10,000/- towards loss of estate instead of Rs. 2,500/- and another sum of Rs. 10,000/- towards loss of consortium instead of Rs.5,000/ as awarded by the Tribunal. But, the amounts of Rs.2,000/- each awarded by the Court below towards funeral expenses and medical expenses need not be disturbed. In all, the appellants-claimants are entitled to a total compensation of Rs.3,30,000/- instead of Rs.1,43,625/- as awarded by the Court below. The enhanced amount of compensation shall carry interest at 7% from the d petition till the date of realisation. The appeal is accordingly allowed in part. No costs. __________________________ GHULAM MOHAMMED,J DATE: 31st March, 2011 pnb [1] 2009(6) SCALE 129