IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A No.5488 of 2008 Dated:18-08-2011 Between: The National Insurance Company Limited, ….Appellant. And Smt. M.Suvarna and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.ANo.5488 of 2008 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is at the instance of the Insurance Company directed against the award passed in O.P.No.2922 of 2005 by the V Additional Metropolitan Sessions Judge (Mahila Court) –cum - XIX Additional Chief Judge, Hyderabad on 12.09.2008. This appeal is posted along with M.A.C.M.A.M.P. No.651 of 2011 for grant of interim Orders. Both the counsels agreed for disposal of the main appeal itself, hence the main appeal is taken up for disposal. The appellant herein is the Insurance Company. Respondent Nos.1 to 3 herein have filed the petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.25,00,000/- for the death of husband of 1st petitioner and father of petitioner Nos.2 and 3 in a motor vehicles accident. According to the petitioners on 13.07.2005 at about 14.35 hours the deceased M.Satyanarayana was going on his scooter bearing No.AP 1394 from Shadnagar to Eshwar Colony and when he reached in front of Anupama Restaurant, Shadnagar, a lorry bearing No.TN 27V 2533 came in a rash and negligent manner with high speed dashed his scooter from behind. Due to which, he fell down and sustained grievous injuries and died while undergoing treatment in the Government Hospital, Hyderabad. The Insurance Company has filed a counter denying the averments made in the petition and put the petitioners to strict proof of the said averments and pleaded that there is no negligence on the part of the driver of the lorry and the accident was occurred due to the own fault of the deceased. On the above pleadings, the Tribunal has framed the following issues: (1) Whether the accident resulting in death of M.Satyanarayana occurred owing to the rash and negligent driving of the driver of lorry bearing No.TN 27V 2533? (2) Whether the petitioners are entitled for compensation, and if so, to what amount and from whom? (3) To what relief? P.Ws.1 to 3 were examined on behalf of the petitioners and Exs.A.1 to A.13 were marked. No oral evidence was adduced on behalf of the respondents, but Ex.B.1 was marked by consent. The Tribunal by taking into consideration of the said evidence held the issue No.1 in favour of the petitioners holding that the accident was occurred due to rash and negligent driving of the driver of the lorry. While deciding the issue No.2 the lower Tribunal awarded Rs.20,51,000/- towards compensation by taking into consideration of the monthly income of the deceased at Rs.18,000/-. Questioning the said award, the Insurance Company has filed the present appeal. The main contention of the appellant’s counsel is that there is contributory negligence on the part of the drivers of both vehicles in causing the accident and awarding total compensation of Rs.20,51,000/- is highly excessive. The appellant’s counsel has further pleaded that the lower Tribunal has wrongly taken into consideration the monthly income of the deceased at Rs.18,000/- even though the net salary of the deceased is Rs.10,848/- as per the salary certificate Ex.A.6. The respondents’ counsel on the other hand has pleaded that the deceased was working as Head Cashier in Bank of Baroda and even though he is drawing a net salary of Rs.13,816/-, the lower Tribunal has rightly taken into consideration the revision of pay scales for every five years and arrived at Rs.18,000/- as monthly income. The respondents’ counsel has further pleaded that there is no material on record to show that the accident occurred due to the contributory negligence on the part of the deceased and the manner in which the accident has taken place clearly establishes that the accident occurred due to rash and negligent driving of the driver of the lorry. In order to establish the rash and negligent driving of the driver of the lorry 1st petitioner examined herself as P.W.1 and examined one of the eyewitnesses as P.W.2 and got marked Exs.A.1 to A.5. P.W.1 is not an eyewitness to the accident. Eyewitness P.W.2 has categorically stated that when the deceased was proceeding on his scooter from Hyderabad to Jadcherla side a lorry bearing No.TN 27V 2533 came from behind and dashed the scooter of the deceased, due to which he fell down and sustained grievous injuries. F.I.R and Charge Sheet also clearly establishes the rash and negligent driving on the part of the driver of the lorry. As per the evidence of P.W.2 and Exs.A.1 to A.5, it is evident that the accident was occurred due to rash and negligent driving of the driver of the lorry. Moreover, the Insurance Company has not taken the plea of contributory negligence on the part of the deceased in their counter. Hence, the contention of the appellant’s counsel that the accident was occurred due to the contributory negligence on the part of the deceased cannot be accepted. The appellant’s counsel has pleaded that the compensation awarded by the lower Tribunal is highly excessive. The lower Tribunal by relying upon the salary certificate Ex.A.6 after deducting housing loan, festival advance and staff co- operative society from the gross salary of the deceased arrived the net salary at Rs.13,816/- and by taking into consideration that there would be a revision for every five years inclined to take Rs.18,000/- as neutralized future salary of the deceased. As per Ex.A.6 salary certificate, the gross salary is Rs.17,341/- and after deductions of Rs.6,493/-, the net salary is Rs.10,848/-. The deductable amounts from the gross salary are only housing loan, festival advance, profession tax and staff co-operative society, which comes to Rs.3,715/-. Thus, the net salary of the deceased comes to Rs.13,626/-. Since the deceased is aged about ‘42’ years on the date of his death and working as Head Cashier in a bank, he has to be awarded some amount towards future prospects in his employment. As per the decision rendered in “Smt. Sarla Verma and others v. Delhi Transport Corporation and another (2009 AIR SCW 4992)”, 30% of the salary has to be taken towards future prospects in life as the deceased was more than 40 years. Thus, the petitioner is entitled for Rs.4,087/- (Rs.13,626 X 30/100 = 4,087/-) towards future prospects. His total salary would be Rs.17,713/-, out of which 1/3rd has to be deducted towards personal expenses of the deceased, which comes to Rs.5,904/-. Thus, the total loss of dependency of the petitioners comes to Rs.11,809/- per month. Since there is no dispute with regard to the age of the deceased and multiplier applied by the lower Tribunal i.e. ‘14’, the total loss of dependency of the petitioner comes to Rs.11,809 X 12 X 14 = Rs.19,83,912/-. The lower Tribunal has awarded Rs.15,000/- towards loss of consortium and Rs.5,000/- each to the petitioner Nos.2 and 3 and respondent Nos.3 and 4 towards loss of love and affection i.e. Rs.20,000/-. Thus, in all the lower Tribunal has awarded Rs.35,000/- apart from the loss of dependency. Thus, the petitioners are entitled for Rs.20,18,912/- (Rs.19,83,912 + Rs.35,000) towards compensation. The lower Court has awarded an amount of Rs.20,51,000/-, but the lower Court has not granted any amount towards funeral expenses and loss of estate. If those things are taken into consideration, the amount awarded by the lower Court is just compensation for the petitioners and the same does not warrant any interference in this appeal. In the result, the appeal is dismissed without costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:18-08-2011 Ksp