IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FOURTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR MOTOR ACCIDENTS CIVIL MISCELLANEOUS APPEAL No.438 OF 2007 BETWEEN M/s. United India Insurance Co. Ltd. …APPELLANT AND K. Srinivas Reddy and two others. …RESPONDENTS Counsel for the Appellant: MR. K.S.N. MURTHY Counsel for the Respondent Nos.1 & 2: MR. T. DAMODAR The Court made the following: - JUDGMENT: This appeal is by the insurance company, which was figuring as second respondent in the claim petition O.P.No.595 of 2001 before the Motor Accidents Claims Tribunal – cum – VI Additional District Judge, Mahbubnagar. 2. In a motor vehicle accident dated 10.04.2001 when the deceased along with her mother-in-law and daughter had boarded the Van bearing No.AP 22 U 1130 at Kalwakurthy to go to Jadcherla after paying fare to the driver, the said Van was being driven, allegedly, in a rash and negligent manner resulting in the driver loosing control and the said vehicle went off the road and dashed against the tree resulting in the death of the wife of claimant No.1 and mother of claimant No.2. There were two more deaths of the mother-in-law of the deceased as well as her daughter, which are subject matter of different claim petitions and now the subject matter of MACMA.Nos.437 and 439 of 2007, which are also heard along with the present appeal. It was claimed that the deceased was 24 years of age and had passed SSC and doing poultry business and earning about Rs.5,000/- per month and the compensation of Rs.3,00,000/- was sought for. 3. The insurance company denied the liability and also claimed that the deceased was a gratuitous passenger in a goods vehicle and as such, the insurance company is not liable to pay compensation. The claimants examined P.Ws.1 and 2 and marked Exs.A1 to A9 whereas the insurance company examined it’s Administrative Officer as R.W.1 and marked Ex.B1 policy. The first claimant, who was examined as P.W.1 is the husband of the deceased, stated about the accident and also marked FIR, Motor Vehicle Inspector’s report, Charge Sheet and judgment of the criminal Court in C.C.No.349 of 2001 as Exs.A1, A4, A5 and A6 respectively. 4. The tribunal below on consideration of the evidence adduced and the factum of accident being not in dispute and keeping in view the evidence of eyewitness – P.W.2, held that the accident occurred on account of rash and negligent driving by the driver of the offending vehicle. On issue No.2, the tribunal has considered that there is no evidence of actual monthly earnings of the deceased but has quantified the said monthly earnings approximately to Rs.3,000/- per month and after deducting 1/3rd and applying multiplier of 17 relevant to the age of the deceased, the tribunal has followed the second schedule under the Motor Vehicles Act, 1988 (for short ‘the Act’) and has arrived at the dependency at Rs.4,08,000/- but as the claimants restricted their claimed to only Rs.2,80,000/- the tribunal granted compensation of Rs.2,80,000/- as general damages. The tribunal also awarded pecuniary damages quantified at Rs.5,000/- towards transportation, funeral expenses etc. However, on the aspect of the liability of the insurance company, the tribunal held that the insurance company is not bound on account of violation of the policy of insurance as gratuitous passengers were carried in a goods vehicle, but, however, held that the insurance company may pay the amounts to the claimants and recover the same from the owner without necessity of filing a suit in terms of the decisions of the Supreme Court in NATIONAL INSURANCE CO. LTD v. BALJIT KAUR [2004 ACJ 428] as well as ORIENTAL INSRUNCE CO. LTD v. NANJAPPAN [2004 ACJ 721]. 5. In the present appeal, the learned counsel for the appellant contends that even while assuming notional income, in the absence of evidence of actual income of the deceased, the tribunal committed error in determining the earnings of the deceased at Rs.3,000/- per month and she contends that when the second schedule under the Act applies, the maximum income that can be presumed is Rs.15,000/- per annum and 1/3 therefrom is to be deducted and multiplier 17 is to be applied. 6. Learned counsel for the respondents/claimants, on the contrary, submits that the income of the deceased has been reasonably quantified by the tribunal below and it warrants no interference. 7. I have considered the aforesaid submission. It has to be appreciated that there is no evidence with respect to the income of the deceased except self-serving testimony of P.W.1, therefore, it would not be appropriate to accept the figures taken by the tribunal below and determination of the income of the deceased at Rs.3,000/- per month is on a higher side. Once the tribunal below was following the second schedule under the Act, the tribunal had to proceed on the footing that the annual income of the deceased was Rs.15,000/- per annum and after deducting 1/3rd therefrom the total annual dependency would be Rs.10,000/- to which the appropriate multiplier 17 had to be applied and therefore, the dependency would work out to Rs.1,70,000/-. Similarly, with respect to pecuniary damages the second schedule itself provides under clause (3) that an aggregate amount of Rs.9,500/- is to be granted under different heads i.e. loss of consortium and funeral expenses so far as first claimant is concerned and loss of estate for second claimant. The quantification of the awarded amount under paras 16 and 17 of the impugned award, therefore, is required to be modified and as per the calculation above, the claimants are entitled to Rs.1,79,500/- as aggregate compensation. As already directed by the tribunal, the appellant/insurance company shall pay the said amount to the claimants and shall be entitled to recover the same from the owner of the vehicle without necessity of filing a suit. The aforesaid amount awarded shall carry interest at 6% per annum from the date of claim till realization in terms of the decision of the Supreme Court in SARLA VERMA v. DELHI TRANSPORT CORPORATION [1] . The appeal is accordingly allowed in part. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J August 4, 2010 DSK [1] (2009) 6 SCC 121