IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SIXTEENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A. No.1872 of 2006 Between: The National Insurance Company Limited, rep. by its Branch Manager, Ponnur .. Appellant AND Modela Kanakamma and others .. Respondents JUDGMENT: This appeal is directed against the award, dated 08-05- 2006 in M.V.O.P. No.925 of 2004 on the file of the Motor Accidents Claims Tribunal-cum-Principal District Judge, Khammam. Modela Tirupaiah was coming on cycle at about 7.30 P.M. on 09-10-2003 when lorry No. ATS 126, driven rashly and negligently, came from behind at about one kilo metre from Perika Singaram and dashed the cycle. Tirupaiah died even on the way to the Government hospital due to the injuries suffered in the accident and the deceased was working as a sweeper getting a salary of Rs.1,500/- apart from earning Rs.1,200/- per month by carrying the food carriers of the students of Vikas school, Nelakondapalli. At the age of 40 years, he was contributing his income entirely to his wife, three minor children and aged mother who became destitutes on his death. Hence, they sought for a compensation of Rs.4,50,000/- from the owner and insurer of the lorry. The owner of the lorry remained ex parte before the Tribunal, while the insurer denied all the allegations of the claimants and contended that the deceased was victim of his own negligence. The insurer was not given any information by the police or by the insured about the accident and in any view, the compensation claimed was excessive. The Tribunal framed issues about the manner of the accident and the entitlement of the claimants to compensation and during the enquiry, it examined P.Ws.1 and 2 and marked Exs.A.1 to A.6 and B.1. The Tribunal rendered the impugned award firstly accepting the eye witness account of P.W.2, corroborated by Ex.A.1 first information report and Ex.A.2 charge-sheet. The Tribunal concluded the lorry driver alone to be responsible for the accident with his rash and negligent driving and in assessing the compensation, the age of the deceased was taken as 40 years as stated by the post-mortem report and the income of the deceased was accepted at Rs.2,100/- as against the claim of Rs.2,700/-. After deducting one-third towards the personal expenses of the deceased, the Tribunal applying multiplier of 15, arrived at the loss of dependency at Rs.2,52,000/-. The Tribunal also considered the wife to be entitled to Rs.15,000/- towards loss of consortium and the claimants to be entitled to Rs.2,000/- towards funeral expenses. On the said sum of Rs.2,69,000/-, the Tribunal awarded interest at 7.5 per cent per annum from the date of the petition till the date of realization and also gave directions about apportionment and disbursement of the compensation. The insurer challenged the said award in this appeal contending that the claimants did not prove the earnings of the deceased assessed at Rs.2,100/- per month and in the absence of any evidence, the income should have been taken as Rs.15,000/- per annum as per the Second Schedule. The multiplier also should have been taken as 12.79 and not as per the Second Schedule for the age of 40 years of the deceased. The insurer who claimed to have obtained permission under Section 170 of the Motor Vehicles Act, therefore, desired the award to be reversed. Sri Satyam Reddy, learned counsel, representing Sri T. Ramulu, learned counsel for the appellant and Sri J. Prabhakar, learned counsel for respondents 1 to 5/claimants are heard and the owner of the lorry was unrepresented before this Court also. The insurer did not challenge the conclusions of the Tribunal about the rash and negligent driving of the lorry being the cause for the accident and the death of Tirupaiah. The ownership of the lorry with the 1st respondent to the claim and its subsisting insurance with the 2nd respondent to the claim were probablised by Ex.B.1 insurance policy filed by the appellant itself. Therefore, the only question that remains for consideration is the quantum of just and adequate compensation payable by both the respondents jointly and severally to the dependents of the deceased/claimants before the Tribunal. The age of the deceased was determined as 40 years by the Tribunal with reference to the post-mortem report and the assessment of the age by the medical expert can be considered to provide satisfactory basis in the absence of any other evidence on record. Similarly, the employment of the deceased as a sweeper in APSRTC bus stand and his further earning by carrying the food carriers of the students of nearby school, were spoken to by his wife as P.W.1 on oath and even assuming that the evidence of P.W.1 is tainted with interestedness, in the absence of any contrary evidence and there being no circumstance to doubt the credibility of P.W.1, the claims could not have been rejected outright. The able bodied deceased would not have remained idle without engaging himself in some avocation or occupation earning a decent income sufficient to maintain himself, his wife, three minor children and mother, the claimants herein, having not been alleged to be carrying on any avocation by themselves to earn their livelihood. Even the minimum wages payable to unskilled labourers at the relevant time under the Minimum Wages Act, 1948 could not have greatly differed with the assessment made by the Tribunal. The very incident was recorded in Ex.A.1 first information report, the earliest version, to have happened while the deceased was carrying food carriers of the students on his cycle, which fact was confirmed in Ex.A.2 charge-sheet after independent investigation by the statutory agency. In the absence of any contradictory evidence for the respondents to the claim, the assessment of the probable monthly income of the deceased by the Tribunal cannot be interfered with and in fact, his dependents being five in number, the Tribunal could have deducted only one- fourth of the assessed income towards the probable expenses which the deceased would have incurred had he been alive as per Sarla Verma v. Delhi Transport Corporation[1], but the Tribunal deducted one-third of the income towards such expenses. The claimants, of course, did not approach this Court with any cross- appeal or cross-objections and the amounts awarded towards loss of consortium and funeral expenses at Rs.17,000/- in total were also less than Rs.20,000/- to which the claimants would have been entitled as per Sarla Verma v. Delhi Transport Corporation (1 supra) towards loss of estate, funeral expenses and loss of consortium. The interest awarded by the Tribunal on the compensation at 7.5 per cent per annum broadly accords with the rate of interest adopted by superior Courts at about the relevant time and is not shown to be deviant from the interest adopted by the scheduled banks at that time. If so, the quantum of the compensation fixed does not deserve interference on any ground in this appeal and the appeal has to fail. Accordingly, the civil miscellaneous appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 16-09-2011 Svv [1] 2009 ACJ 1298