IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD FRIDAY, THE EIGHTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.859 OF 2009 Between: The New India Assurance Company Limited, Rep. by its Divisional Manager, Secunderabad. …Appellant A n d Smt.Pulimamidi Neelamma and two others ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.859 OF 2009 JUDGMENT: This appeal is directed against the award dated 11- 01-2008 in M.V.O.P.No.2787 of 2006, on the file of the Motor Accidents Claims Tribunal (III-Additional Chief Judge), City Civil Court, Hyderabad (for short ‘the Tribunal’), wherein the said claim application filed by respondents 1 and 2 herein seeking compensation was allowed, awarding compensation of Rs.6,34,000/- with interest at 7.5% per annum from the date of petition till realization. 2. Heard the learned counsel for the appellant/insurer and the learned counsel for the respondents/claimants. Perused the records. 3. Respondents 1 and 2 herein filed the claim application seeking compensation of Rs.6,50,000/- for the death of the deceased P.Naga Raju, who died in a motor vehicle accident that occurred on 28.12.2005. The 1st claimant is the wife and the 2nd claimant is the minor daughter of the deceased Naga Raju. According to claimants, on that day, the deceased after attending the funeral of his relative was returning in a jeep bearing No.AP 28-T-8479 and that a tractor bearing No.AP 21-T- 2751 driven by its driver in a rash and negligent manner dashed against the jeep, as a result of which the deceased sustained grievous injuries, including head injury and that he was initially taken to Government Hospital, Nagarkurnool and from there shifted to SVS Hospital, Mahabubnagar and later shifted to Osmania General Hospital, Hyderabad, where he died on 29.12.2005 and a case in Cr.No.178 of 2005 was registered against the driver of the tractor. The claimants further pleaded that the deceased was aged 24 years and was working as a rig operator in the company of M.Subash Reddy and was getting an income of Rs.4,200/- per month. 4. The third respondent herein, owner of the tractor, remained ex parte and the appellant-insurer filed counter opposing the claim and denying their liability to pay the compensation. 5. During enquiry, P.Ws.1 to 3 were examined and Exs.A-1 to A-11 were marked on behalf of the claimants. No oral evidence was adduced on behalf of the insurer, but Ex.B- 1 copy of the policy was marked. 6. On a consideration of the material available on record, the Tribunal held that as the application is filed under Section 163-A of the Motor Vehicles Act (for short ‘the Act’), it is not necessary for the claimants to prove the factum of rash and negligent driving. The Tribunal further held that the claimants are entitled for a sum of Rs.6,34,000/-. The main contention of the learned counsel for the appellant/insurer is that the Tribunal having treated the application as one under Section 163-A of the Act and having observed that it is not necessary for the claimants to prove the factum of rash and negligent driving, however, ignored the fact that the II Schedule of the Act is not applicable, as the income of the deceased is admittedly more than Rs.40,000/-. 7. It is not disputed and is also borne out by the evidence on record that the deceased was working as a rig operator. P.W.3, one of the employees of the company, testified to the said fact. Ex.A-10 copy of the attendance register and Exs.A-6 salary certificate of the deceased also establish the fact that the deceased was working as a rig operator and was earning Rs.4,200/- per month. By deducting one-third thereof towards personal expenses, the contribution of the deceased to the family comes to Rs.33,600/- per annum. The evidence on record shows that the deceased was aged 24 years. As per the decision of the Apex Court in SARLA VERMA V. DELHI TRANSPORT CORPORATION[1], the appropriate multiplier would be ‘18’. Applying the same, the loss of dependency works out to Rs.6,04,800/-. The Tribunal awarded Rs.2,000/- towards funeral expenses, which is reasonable. The Tribunal also awarded Rs.10,000/- towards loss of consortium and Rs.10,000/- towards loss of estate as per the II Schedule of the Act, which may be taken for guidance. The 1st claimant would be entitled for Rs.5,000/- towards loss of consortium and Rs.2,500/- towards loss of estate. The total, therefore, comes to Rs.6,14,300/-. No doubt, the application is filed under Section 163-A of the Act and the Tribunal has treated the same as such. As rightly contended by the learned counsel for the appellant, the II Schedule relating to the claims under Section 163-A takes care of the cases where the annual income is up to Rs.40,000/-. As the income of the deceased is admittedly more than Rs.40,000/-, the II Schedule may not be applicable in strict sense. In fact, the Tribunal has not applied the multiplier of ‘17’ as per the II Schedule, but applied the multiplier of ’18.21’ as per BHAGWAN DAS v. MOHD. ARIF[2] and awarded certain conventional amounts towards loss of consortium and loss of estate, instead of amounts mentioned in the II Schedule. The Tribunal does not, therefore, appear to have gone by the II Schedule in estimating the quantum of compensation. The Tribunal, however, proceeded to consider the application as under Section 163-A of the Act and observed that it is not necessary for the claimants to prove the factum of rash and negligent driving. As can be seen from the impugned order, the claimants have adduced necessary oral and documentary evidence to prove the negligence on the part of the driver of tractor. A perusal of the record in the OP would show that the claimants examined P.W.2 who was an eye-witness to the accident and was accompanying the deceased in the same vehicle. The claimants have filed Ex.A-1 certified copy of F.I.R, Ex.A-2 inquest report, Ex.A-3 post-mortem report, Ex.A-4 certified copy of MVI’s report and Ex.A-5 certified copy of the charge sheet in C.C.No.26 of 2006, which all go to establish that the accident occurred due to the rash and negligent driving of the tractor by its driver. 8. The learned counsel for the appellant would submit that in the absence of any finding that the driver of the tractor was at fault, the Tribunal ought not to have awarded the compensation beyond the permissible limits under Section 163-A of the Act. Though the impugned order does not contain any specific finding that the driver of the tractor, the insured vehicle, was at fault, the order, however, discloses that the insured vehicle was, in fact, the crime vehicle and records a finding to the effect that the insured vehicle hit the jeep in which P.W.1 was travelling. That apart, the oral and documentary evidence adduced by the claimants and which is available on record clearly establishes the fact that the accident occurred due to the rash and negligent driving of the tractor by its driver. When that is so, in the interest of justice and having regard to the fact that the claimants are poor and hapless victims of the accident resulting in the tragic death of the deceased at a young age of 24 years, it is considered that the application filed under Section 163- A of the Act be treated as one under Section 166 of the Act and disposed of accordingly based on the evidence already available on record, instead of remanding the matter to the trial Court for fresh disposal, which would only result in further expense and delay for the claimants. In fact, the decretal order in OP shows that the petition was filed under Section 166 of the Act. 9. Under those circumstances, the claim application filed by respondents 1 and 2 is treated as one under Section 166 of the Act and as held by a Division Bench of this Court in BHUPATHI PRAMEELA & ORS. V. THE SUPERINTENDENT OF POLICE, VIZINAGARAM & ORS[3] and having regard to the beneficial nature of the provision, and based on the evidence available on record, it is held that the accident occurred due to the rash and negligent driving of the tractor by its driver. It is not disputed that as on the date of the accident there is valid insurance coverage for the vehicle. The claimants are, therefore, held entitled for a total compensation of Rs.6,14,300/- with interest at 6% per annum from the date of petition. The impugned order is modified accordingly. 10. In the result, the civil miscellaneous appeal is allowed to the extent stated above. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 08th July, 2011 Lrkm [1] (2009) 6 SCC 121 [2] 1987 ACJ 1052 [3] 2011 AAC 173 (AP)