THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A. No. 2929 of 2007 Judgment: (Per N.V. Ramana, J.) The appellants-claimants filed this appeal questioning the decree and award dated 16.08.2007 passed by the Motor Accidents Claims Tribunal-cum-VII Additional District Judge, Ongole, awarding compensation of Rs.8,70,000/- as against as against their claim for Rs.20,00,000/-, contending that the same is very meagre and needs to be enhanced. On 08.05.2006, while the deceased, namely Darabadi Santhosh Evangilin along with her two daughters and father were proceeding in an Ambassador car bearing No. AP 27G 4051 from Ongole to Darsi, at about 9.45 a.m., when they reached Katurivaripalem, they met with an accident when a Tractor-Trailer bearing Nos. AP 07L 9004 and 9005 coming from the opposite direction loaded with tobacco bales, driven by its driver in a rash and negligent manner with high speed without blowing horn, dashed the car. In the accident, the driver, the deceased and one of her daughters died on the spot, while her father and another daughter received injuries. In the accident, the front portion of the car was completely damaged. The appellants, who are the husband and daughter of the deceased filed claim petition before the Tribunal, claiming compensation of Rs.20,00,000/- for the death of the deceased against respondent Nos. 1 and 2, namely the owner of the Tractor-Trailer and the Insurance Company with whom the Tractor-Trailer was insured, contending that the deceased at the time of accident was aged 35 years, hale and healthy, was working as Mathematics Lecturer in Aurora School of Education, Bhuvanagiri, Nalgonda, and earning monthly salary of Rs.14,307/-, and that due to her death, they have lost her income, which she used to contribute to the family. Respondent Nos. 1 and 2, namely the owner of the Tractor- Trailer and the Insurance Company with whom the Tractor-Trailer was insured, filed separate counters. They have taken a stand that the deceased was not at all earning any amount. The owner of the car in which the deceased was traveling and the insurance company with whom the car was insured, are necessary parties. The accident occurred due to the rash and negligent driving of the car by its driver and not the driver of the Tractor-Trailer. Respondent No.2 also contended that the driver of the car and the driver of the Tractor-Trailer are not holding valid driving licneces. Thus they contended that they are not liable to pay any compensation and that the compensation claimed is very high. Before the Tribunal, the appellants on their behalf examined P.Ws. 1 to 3 and marked Exs. A1 to A11 and Exs. X1 to X4, while respondent No.2 examined none, but marked Ex. B1-policy. The Tribunal considering the rival contentions held that the accident has occurred due to the rash and negligence of both the driver of the car as well as the driver of the Tractor-Trailer, and apportioned the negligence at 50% each against both the drivers. The Tribunal further having taken the net salary of the deceased at Rs. 13,427/- and after deducting one-third thereof towards personal expenses of the deceased and by applying the multiplier 12 worked out the compensation to Rs.17,18,635/- and further added a sum of Rs.15,000/- towards loss of consortium Rs.2,000/- towards funeral expenses and Rs.5,000/- towards loss of estate. Thus in all the Tribunal worked out the compensation to Rs.17,40,656/- and as both the driver of the car as well as the driver of the Tractor-Trailer were responsible for the accident, apportioned 50% of the liability against respondent Nos. 1 and 2, by rounding of the same to Rs.8,70,000/-. The learned counsel for the appellants-claimants submitted that in the absence of any evidence adduced by the respondents to show that the driver of the car also contributed to the accident, the Tribunal committed an error in holding that the driver of the car also contributed to the accident, and thereby apportioning the negligence at 50% each against the driver of the car and the driver of the Tractor-Trailer, and awarding only 50% of the compensation. He further submitted that the Tribunal instead of taking the gross salary of the deceased has erroneously taken her net income for the purpose of computing the compensation. Hence, he prayed that the decree and award under appeal fixing 50% negligence against the driver of the car be set aside and the compensation payable be computed based on the gross salary of the deceased. On the other hand, the learned counsel for respondent No.1- owenr of the Tractor-Trailer and the learned counsel for respondent No.2-Insurance Company supported the decree and award under appeal. They contended that as the driver of the car was also responsible for the causing of the accident, the Tribunal has rightly fixed 50% negligence against the driver of the car. Hence, they prayed that no interference is warranted with the decree and award passed by the Tribunal and prayed for dismissal of the appeal. Heard the learned counsel for the appellants-claimants and the learned counsel for respondent No.1-owner of the Tractor-Trailer and the learned counsel for respondent No.2-Insurance Company with whom the Tractor-Trailer was insured. The contention of the appellants-claimants that the driver of the car is not responsible for the causing of the accident, and as such, the Tribunal committed an error in fixing 50% negligence on the driver of the car, cannot be accepted. P.W.2, owner of the car, whom the appellants-claimants examined, in his chief-examination though stated that the Tractor-Trailer came and dashed against the car, but in Ex. A1- FIR, which was registered immediately after the accident, it is mentioned that it is not the Tractor, but the Trailer that touched the car. P.W. 2 further stated that the accident took place in the middle of the road. He admitted that no damage was caused to Tractor, but the wheel of the Trailer was disconnected and that the front portion of his car was badly damaged. The Tribunal felt that the accident could have been averted had the driver of the car swerved it towards the left side of the road. However, considering the fact that the accident took place in the middle of the road and the further fact that the car was badly damaged and the wheel of the Trailer disconnected, and in the absence of the appellants-claimants examining the driver of the car, we are of the considered opinion that the Tribunal was justified in holding that both the driver of the car as well as the driver of the Tractor-Trailer, were responsible for causing the accident, and as such, no exception can be taken to the decree and award passed by the Tribunal, apportioned the negligence for causing the accident against both the driver of the car as well as the driver of the Tractor- Trailer at 50% each. Now coming to the quantum of compensation. Even though the evidence produced by the appellants-claimants showed that the deceased was earning Rs.14,307/-, the Tribunal has taken her net salary at Rs.13,427/-, for the purpose of computing the compensation. We have perused the evidence on record. The evidence of P.Ws. 1 to 3 read with Exs. X2 and X6 show that the deceased was working as Lecturer in Aurora School of Education. The only deductible amount from the gross salary of the deceased is Rs.100/- being paid by her towards professional tax, while an amount of Rs.780/-, which the Tribunal did not take into consideration for the purpose of computing the compensation, was being deducted towards EPF. Since the amount deducted towards EPF would ultimately go to the deceased, the same has to be taken into consideration, for the purpose of computing the compensation. Thus the salary of the deceased would be (Rs.14,307/- - Rs.100/-) Rs.14,207/- per month and Rs.1,70,484/- per annum. Out of the said amount, one-third should be deducted towards personal expenses of the deceased, and so deducted, her contribution to the family would come to (Rs.1,70,484/- - Rs.56,828/-) Rs.1,13,656/- per annum. Since the deceased at the time of her death was aged 35 years, the relevant multiplier applicable as per the judgment of the apex Court in Sarla Verma v. Delhi Transport Corporation[1] is 16. Thus the loss of dependency would come to (Rs.1,13,656/- x 16) Rs.18,18,496/-. Apart from the said sum, appellant No.1 would be entitled to Rs.15,000/- towards loss of consortium, Rs.5,000/- towards loss of estate and Rs.2,000/- towards funeral expenses, as awarded by the Tribunal. Thus, in all the appellants-claimants would be entitled to Rs.18,40,496/-. Since this Court has confirmed the finding recorded by the Tribunal that the driver of the car also contributed the accident and apportioned the negligence at 50% each against the driver of the car as well as the driver of the Tractor-Trailer, and as the appellants-claimants have not made the owner of the car and the insurance company with whom it was insured as parties to the claim petition, the appellants-claimants are entitled to only half of the said compensation, which comes to Rs.9,20,248/- with interest thereon at the rate of 6% per annum from the date of filing the claim petition till the date of realization. Accordingly, the appeal is partly allowed. No costs. _________________ N.V. RAMANA, J. _____________________ P. DURGA PRASAD, J. Dated: 19th August, 2011 KSR [1] (2009) 6 SCC 121