THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A No.1637 OF 2011 JUDGMENT: The appeal is filed by the Insurance Company challenging the award in O.P.No.826 of 1997 whereunder for a claim of Rs.12 lakhs consequent on the death of K.Venkateswarlu while he was travelling in a jeep 16-09-1998 a lorry bearing No.MH-35-A09738 in a rash and negligent manner came and dashed against the jeep, as a result of which the deceased received injuries and died, the petitioners are the parents, wife and children of the deceased. They claimed that the deceased was a Labour contractor-cum-building contractor earning Rs.15,000/- per month and the petitioners are dependents on the deceased who was aged about “40” by the time of incident. The first respondent remained ex parte and second respondent filed a counter denying the allegations in the petition about the nature of incident; dependency of the petitioners; earning capacity of the deceased and also disputed that the driver of the vehicle having valid licence. The Tribunal after considering the evidence on record, has determined the compensation of Rs.7,45,000/- and held that the appellant is liable for payment of the same. Aggrieved by the said award, the present appeal is filed. The contention of the counsel for the appellant is that the earning capacity of the deceased which was fixed at Rs.6,000/- per month is highly excessive and even applying the minimum wages, which were fixed by the Government, it will come an amount of Rs.2,370/- and even if the structural formula is applied, the income would not be so much and also the application of multiplier “15” is not correct and consequently challenges the award. The learned counsel for the respondent on the other hand contends that the Tribunal has rightly considered the evidence on record and there is no proof that an application under Section 170 of M.V. Act was filed before the lower court and consequently the quantum of compensation cannot be challenged. So far as the application under Section 170 of the Act is concerned, there is nothing on record to show that it was not filed. Therefore, in view of the above circumstances, at this stage it is difficult to accept the contention of the respondent that there was no application under Section 170 of the Act. So far as the income is concerned, the petitioners claimed that the deceased was working as mason and a labour-contractor and earning Rs.15,000/- per month and relied on a salary certificate Ex.A-2 whereunder he is said to be paid Rs.15,000/-. The evidence of PWs.1 and 2 is so vague. There is nothing to show for how many buildings he was a mason contractor and since how long he was doing the contract business and the salary certificate Ex.A-2 therefore cannot be taken into consideration as a continuous earning of the deceased. Even the lower court was also not inclined to place reliance by Ex.A-2 showing an income of Rs.15,000/- per month. It may be that the deceased is a mason by taking employment of others also for doing the work. He is the above the regular labourer and therefore in view of the above circumstances and taking into consideration the claim being of the year 1997, the income of the deceased can be reasonably fixed at Rs.4,000/- per month. As there are many dependents on him, 1/4th is deducted towards his personal expenses and the annual contribution to the family comes to Rs.36,000/-. The age of the deceased is said to be “40” and if multiplier “15” is applied, it will meet the ends of justice. Therefore, the total dependency comes to Rs.5,40,000/- ( Rs.36,000/- x 15). The petitioners will also be entitled to a sum of Rs.10,000/- towards non-pecuniary damages and wife of the deceased will be entitled for a sum of Rs.10,000/- towards loss of consortium and the lower court has granted a sum of Rs.5,000/- towards funeral expenses. Thus, the total compensation, to which the petitioners are entitled to, is Rs.5,65,000/-. Accordingly, the award of the Tribunal is modified as above and further the petitioners will be entitled to interest @ 7.5% in stead of 9% as granted by the lower court. Accordingly, the Appeal is allowed in part. _______________________ N.R.L.NAGESWARA RAO,J 09-08-2011 TSNR