HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.NO.2525 OF 2004 JUDGMENT: 1. This appeal is directed against the order dated 31-10-2003 in O.P.No.312 of 1999, on the file of the Motor Accidents Claim Tribunal-cum-District Judge (for short “the Tribunal”), Krishna at Machilipatnam, wherein the claim of the respondents 1 to 5 herein was allowed-in-part awarding compensation of Rs.2,80,000/- with interest at 9% per annum from the date of petition. 2. Heard the learned counsel for appellant and the learned counsel for respondents. Perused the record. 3. Respondents 1 to 5 herein filed the claim application seeking compensation of Rs.4,33,000/- on account of the death of one Dr.Adireddi Venkata Ramana in a motor vehicle accident, which occurred on 06-02-1999. The first claimant is the wife and claimants 2 to 4 are daughters and 5th claimant is the son of the deceased. According to the claimants, on 06-02-1999 the deceased was returning home after visiting Sai Baba temple on National Highway No.5 in Vijayawada and when he reached the place between Government Polytechnic College and Executive Club, the 6th respondent herein- the driver of lorry bearing No.AP20T-8414 drove the vehicle in a rash and negligent manner in reverse direction and dashed against the deceased from behind. As a result of which, the deceased fell down and vehicle ran over the deceased causing crush injuries to his hand and chest, resulting in his death on the spot. The claimants pleaded that the deceased was aged about 68 years but was hale and healthy and he worked as a Professor in several Colleges and that after his retirement from Siddhardha Medical College, Vijayawada in 1990, he joined as a professor at Medical College, Kolar where he was working till his demise. It is also pleaded that the deceased would have continued the job at least for another five to ten years. 4. The 6th respondent-driver and 7th respondent-owner of the vehicle remained ex parte before the Tribunal. The appellant-insurer filed a counter-affidavit opposing the claim and denied their liability, inter alia contending that the driver of the vehicle was un-licenced driver. 5. In support of their claim, PWs.1 and 2 were examined and Exs.A- 1 to A-11 were marked on behalf of the claimants. No oral or documentary evidence was adduced by the appellant-insurer but Ex.B-1-copy of the policy was marked. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to rash and negligent driving of the lorry by its driver. The Tribunal further held that the claimants are entitled for a total compensation of Rs.2,95,000/-. The Tribunal further fastened the joint and several liability on the appellant-insurer and also the owner of the vehicle for payment of the above said compensation with interest @ 9% per annum from the date of petition i.e., 27-09-1999. Aggrieved by the award passed, the insurer preferred the present appeal. 6. The finding of the Tribunal that the accident occurred solely due to rash and negligent driving of the lorry by its driver-6th respondent herein is not seriously challenged. Even otherwise the evidence on record particularly the documentary evidence relating to the criminal case in Cr.No.19 of 1999 registered against the driver of the lorry would establish the rash and negligent driving on the part of the driver for which he was prosecuted by filing charge sheet-Ex.A-5. 7. The main contention of the learned counsel for the appellant- insurer is that the deceased was admittedly aged 68 years by the date of accident and loss of dependency estimated by the Tribunal in a sum of Rs.2,50,000/- is highly excessive. It is not disputed that the deceased was aged about 68 years by the date of accident as can be seen from the post-mortem certificate-Ex.A-6 and inquest report-Ex.A- 3. It is also not disputed that by the date of accident, the deceased retired as a Professor in Paediatrics in S.M.C, Vijayawada. According to the claimants, after retirement, the deceased was working as a Professor of Paediatrics in ADU Medical College, Kolar. The claimants filed Exs.A-8 and A-9- pay slips issued by ADUMC, Kolar showing that the deceased was getting a net salary of Rs.10,076/-. Ex.A-11 is the proceedings issued by the Director of Medical Education, A.P. Hyderabad stating that the deceased retired from service on 31-05- 1990 on attaining the age of superannuation of 58 years and he was drawing pension of Rs.1860/- per month and he was also granted retirement gratuity of Rs.50,000/-. Ex.A-10-Form.16 filed along with Income tax returns for the assessment year 1998-99 showing that gross salary was Rs.1,37,000/- after deducting standard deductions and tax on employment the total income was Rs.92,800/-. Thus as per the documentary evidence adduced by the claimants, the deceased was earning not less than Rs.9,000/- per month. After deducting 1/3rd towards personal expenses, his contribution to the family can be reasonably estimated at Rs.6,000/- per month. The Tribunal further arrived at an amount of Rs.2,50,000/- without applying any multiplier and proceeding on the basis that the first claimant-wife of the deceased requires on an average a sum of Rs.50,000/- per annum towards maintenance. As per the Second Schedule of the Motor Vehicles Act,1988 the multiplier applicable for the person aged 68 years is “5”. However the Second Schedule would not be applicable to the present case as the income of the deceased is more than Rs.40,000/- per annum. Even going by the multiplier indicated in Bhagawan Das Vs. Mohd.Arif ([1]), the suitable multiplier for the person aged 68 years is “5”. It is not disputed that the first claimant would be entitled for family pension. The Tribunal has, therefore, reasonably estimated the loss of dependency at Rs.50,000/- per annum and even applying the multiplier “5”, the total loss of dependency works out to Rs.2,50,000/-. The award of Rs.15,000/- towards loss of estate is also reasonable but however the amount of Rs.30,000/- granted towards loss of consortium is held to be on the higher side and the same is therefore reduced to Rs.15,000/- which is the amount normally granted towards loss of consortium, when the Second Schedule is not applicable. Having regard to the fact that the claimants 2 to 5- children of the deceased are all well educated and well placed and are not dependent on the income of the deceased, the Tribunal rightly held that the compensation is payable only to the first claimant-widow of the deceased, except an amount of Rs.15,000/- which was held payable to the son towards loss of estate. 8. Though the appellant contended that the driver was not having valid licence, there is absolutely no evidence placed before the Tribunal to establish the said allegation. In the absence of any such evidence and in view of the policy-Ex.B-1, which was in force by the date of accident, the Tribunal has rightly fastened the joint and several liability for payment of compensation on the insurer and the insured. 9. It is stated that the first respondent-wife of the deceased also died subsequent to filing of the appeal. A memo is filed to that effect that the respondents 2 to 5 are the legal representatives of the first respondent being her daughters and son. Respondents 2 to 5 are accordingly recognized as legal representatives of the deceased-1st respondent and entitled to receive the compensation in equal shares being the legal representatives of the 1st respondent. 10. In the circumstances, the claimants 2 to 5 in their capacity as legal representatives of the deceased-1st respondent are held entitled for a total compensation of Rs.2,50,000/- to be shared by them equally with interest 9% per annum from the date of accident, the impugned award of the Tribunal is modified accordingly. 11. In the result, the appeal is allowed-in-part to the extent stated above. No order as to costs. ______________________ G.V.SEETHAPATHY,J Dt.10-11-2009 tsnr [1] 1987(2) ALT 137