IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY SECOND DAY OF FEBRUARY TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.995 of 1997 Between: Nunnagajula Rajeswari & another .. Appellants AND Smt. S. Padmavathi & 4 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.995 of 1997 JUDGMENT: This appeal is directed against the award, dated 06.01.1997, in M.V.O.P.No.227 of 1992, on the file of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Tirupati. 2. The factual background for the appeal is that P. Ravindranath Seshan, Excise Superintendent, Kurnool and others were travelling in Metador van No.AP 21 0114 from Sabarimalai to Kurnool via Tirupati on 19.12.1991 and near Panapakam at about 1.30 p.m., lorry No.AP 03T 1836, driven rashly and negligently, dashed against the van. Ravindranath Seshan and the driver of the van died due to grievous injuries, while other passengers received multiple injuries. The police registered Crime No.164 of 1991 against the lorry driver and the wife and son filed the claim for a compensation of Rs.10,00,000/- from the owners and insurers of the lorry and the Metador van jointly and severally. The 5th respondent is the mother of the deceased who was employed as Head Mistress and was stated to be never dependent on the deceased. 3. Respondents 2 and 4 denied the allegations of the claimants and the second respondent claimed that there was no contract between the second respondent and the first respondent, while the 4th respondent claimed that there was no rash and negligent driving by the driver of the lorry. 4. The 5th respondent contested the claim contending that the deceased was looking after her welfare as she was getting only a pension of Rs.1,200/- after retiring as a Head Mistress. She claimed to have performed the marriages of her five daughters and to have brought up her three sons with her meagre salary incurring debts and she also claimed to be a chronic patient of diabetes and blood pressure spending Rs.500/- per month towards medicines. Hence, she is entitled to 1/3rd share out of the compensation. 5. The owners of the lorry and the Metador van remained ex parte. 6. The Tribunal framed issues about the responsibility for the death of Ravindranath Seshan, his age and income and the entitlement of the claimants to compensation. 7. During the enquiry, the Tribunal examined P.Ws.1 and 2 and marked Exs.A-1 to A-9. 8. The Tribunal rendered the impugned award firstly concluding that P.W.2, one of the injured, was corroborated by Ex.A-1-Charge Sheet and Ex.A-8-Motor Vehicle Inspector’s Report and in the absence of examination of the drivers of the vehicles and the owners of the vehicles remaining ex parte, the Tribunal construed the accident as a head on collision between the two vehicles with equal responsibility for both the drivers. The date of birth of the deceased was taken as 44 years with reference to Ex.A-4-S.S.L.C. Certificate and the Salary Certificate-Ex.A-5 was considered for taking the income of the deceased at Rs.2,510/- per month. The Tribunal did not take into account the dearness allowance, house rent allowance and attender allowance amounting to Rs.1,989/-. The Tribunal considered the mother also to be dependent on the income of the deceased and also noted that the wife was working as a Lecturer earning her own salary and, therefore, considering that the son was a minor requiring major help till settlement in life, the Tribunal considered apportionment at 60% for the son and 20% each for the wife and the mother. The Tribunal took into account the multiplier as per BHAGAWAN DAS VS. MOHD. ARIF[1] and the Second Schedule to the Motor Vehicles Act, 1988, and applied a multiplier of 13. It deducted 1/3rd towards personal expenses of the deceased and calculated the loss of dependency at Rs.2,61,000/-. It also granted Rs.15,000/- towards pain and suffering, Rs.15,000/- towards love and affection and Rs.9,000/- towards transport, funeral and conventional expenses. On the total compensation of Rs.3,00,000/-, the Tribunal awarded interest at 12% per annum and proportionate costs and gave directions regarding the disbursement of the compensation. 9. The claimants filed the present appeal contending that the appropriate multiplier would have been 15 and the monthly salary should have been taken as Rs.4,509/- and not Rs.2,510/-. The claimants, therefore, desire that the balance compensation also to be awarded. 10. The 4th respondent filed cross objections against concluding the drivers of both the vehicles to be equally responsible in the light of the evidence of P.W.2 about the rash and negligent driving by the lorry driver alone. The 4th respondent, therefore, desired the liability to be fixed on respondents 1 and 2 only. 11. While so, both the Civil Miscellaneous Appeal and the cross objections were dismissed by this Court on 18.08.2008 without costs and while subsequently, the Civil Miscellaneous Appeal was restored to file on an application by the claimants/appellants, no steps were taken by the 4th respondent for restoration of the cross objections. 12. The Civil Miscellaneous Appeal was again dismissed for default without costs on 15.07.2010 and was restored to file as per the orders in M.A.C.M.A.M.P.No.5368 of 2010, dated 22.02.2011. 13. Sri Ch. Dhananjaya, learned counsel for the appellants, Sri Bathula Venkateshwar Rao, learned counsel for the second respondent and Sri R. Venkat Rao, learned counsel for the 4th respondent are heard. 14. In so far as the ownership of the Metador van with the third respondent and its subsisting valid insurance with the 4th respondent, the ownership of the lorry with the first respondent and its subsisting valid insurance with the second respondent and the relationship of the claimants and the 5th respondent with the deceased are concerned, there is no dispute. The employment of the deceased as Excise Superintendent, Kurnool, by the time of his death and his being aged 44 years by the time of his death and his earning Rs.4,499/- gross salary by that time were proved through Exs.A-4-S.S.L.C. Certificate and A-5-Salary Certificate respectively. The conclusion of the Tribunal about the drivers of both the vehicles being equally responsible for the accident has become final after the dismissal of the cross objections and in the absence of any other challenge by any party to the claim. Similarly, the claimants did not challenge in the appeal the conclusion of the Tribunal that the 5th respondent was also a dependent on the deceased nor did they challenge the apportionment directed by the Tribunal between them and the 5th respondent. 15. The only question that was raised in the grounds of appeal and the subject of consideration herein is the quantum of compensation. Fixation of just and adequate compensation is now guided by SARLA VERMA VS. DELHI TRANSPORT CORPORATION AND ANOTHER[2]. The Tribunal in spite of accepting Ex.A-5-Salary Certificate took into account only the basic pay and personal pay of the deceased and excluded dearness allowance, house rent allowance and attender allowance which are a large part of the gross pay of the deceased for no explicable reason. Why these three allowances cannot be taken as income for computing the compensation as opined by the Tribunal was unexplained and is unintelligible. The gross pay of Rs.4,500/-, therefore, should be the basis for computation of the compensation in the absence of any reason as to any amounts that have to be deducted from the gross pay in respect of such computation. The deceased, as already stated, was a permanent State Government servant and was aged 44 years in which event SARLA VERMA’s case (supra 2) directs addition to income for future prospects at 30%. If the monthly salary is rounded off to Rs.4,500/-, 30% of the same would come to Rs.1,350/- and the total income for purposes of computation of compensation should be taken as Rs.5,850/-, 1/3rd of the same should be deducted towards personal and living expenses of the deceased had he been alive as per SARLA VERMA’s case (supra 2) and the loss of dependency of the claimants and the 5th respondent should be, therefore, taken as Rs.3,900/- per month. The annual dependency comes to Rs.46,800/-. The appropriate multiplier applicable to a person aged 44 years is 14 as per SARLA VERMA’s case (supra 2) and if so, the total loss of dependency comes to Rs.6,55,200/-. In addition, the claimants will be entitled to Rs.5,000/- each towards loss of estate and funeral expenses and Rs.10,000/- towards loss of consortium. The total just and adequate compensation in accordance with the settled principles is, therefore, Rs.6,75,200/- which can be rounded off to Rs.6,75,000/-. Therefore, there should be an enhancement of Rs.3,75,000/-. 16. While the enhanced compensation should also carry interest and proportionate costs, in view of the length of time for which such interest has to be paid, the same can reasonably be restricted to 6% per annum. The decree also did not clarify that the liability of respondents 1 and 2 on one hand and respondents 3 and 4 on the other is to the extent of 50% each in the light of the finding of the Tribunal about equal responsibility of both the drivers and that also needs to be clarified. The apportionment can be in the same ratio as directed by the Tribunal and at this distance of time, no directions need be given regarding disbursement of the compensation. 17. In the result, the award, dated 06.01.1997, in M.V.O.P.No.227 of 1992, on the file of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Tirupati, is modified by granting a further compensation of Rs.3,75,000/- with interest thereon at 6% per annum from the date of the petition till the date of realization and proportionate costs in addition to the compensation already awarded by the impugned award and the total compensation shall be payable equally by respondents 1 and 2 on one hand and respondents 3 and 4 on the other and the sharing of the compensation between the claimants and the 5th respondent shall be in the same proportion as directed by the impugned award. 18. The Civil Miscellaneous Appeal is allowed, accordingly, in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 22nd February, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.995 of 1997 Date: 22nd February, 2011 KL [1] 1987 (2) ALT 137 [2] 2009 ACJ 1298