IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY THIRD DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR MOTOR ACCIDENTS CIVIL MISCELLANEOUS APPEAL No.3138 OF 2007 BETWEEN M/s. United India Insurance Co. Ltd. …APPELLANT AND D. Lakshmi and three others. …RESPONDENTS Counsel for the Appellant: Mr. SOMANCHI VENKATESWARLU Counsel for the Respondents: Mr. K.L.N. RAO The Court made the following: - JUDGMENT: This is an appeal by the insurance company against the award of the Motor Accidents Claims Tribunal – cum – I Additional Chief Judge, City Civil Court, Hyderabad in M.V.O.P.No.452 of 2005 dated 01.12.2006. 2. The respondents/claimants are the wife and sons of the deceased in the accident that occurred on 02.07.2005. The deceased, while traveling on foot along with his wife and other relatives, was hit by the offending lorry bearing No. ATT 9712, which was being driven in a high speed. The deceased succumbed to the injuries; the police also registered a case in Cr.No.139 of 2005 at Police Station, Keesara against the driver of the offending lorry. The present claim petition was filed alleging that the deceased was 50 years old and working as Security Officer in BHEL, Mallapur, Hyderabad and drawing a salary of Rs.12,000/- per month. The appellant/insurance company denied the accident and denied any liability. They also claim that the driver of the offending lorry was not having a valid driving licence. 3. The tribunal recorded the evidence of P.W.1 on behalf of the claimants and also marked Exs.A1 to A7, which are certified copies of FIR, charge sheet, inquest report, postmortem report, salary certificate, legal heir certificate and copy of the policy. There was no evidence on the part of the appellant or the owner of the vehicle but marked Ex.B1 the attested copy of the identity card of the deceased, which shows that his staff no is 1183, his blood group as 0+ve and his date of birth as 01.12.1949 and Ex.B2 is the coy of the insurance policy. On the basis of the evidence of P.W.1, who was with the deceased at the time of the accident and who has spoken of the offending lorry hitting her husband from behind coupled with Exs.A1 to A4, the tribunal came to the conclusion on issue No.1 that there was rash and negligent driving on the part of the offending vehicle. On issue No.2, the tribunal considered Ex.A5 salary certificate of the deceased that his gross salary is Rs.11,692/- and arrived at his annual income as Rs.1,40,304/-. After deducting 1/3rd towards his personal expenses and accepting the age of the deceased as shown in the postmortem report – Ex.A4, as 50 years, applied multiplier 11, quantifying the dependency to Rs.10,28,896/-. Since the claim was only for Rs.10,00,000/-, the compensation was restricted to Rs.10,00,000/- along with interest at 7.5% per annum. 4. Learned counsel for the appellant submits that the tribunal has not taken into consideration Ex.B1, which shows the age of the deceased, as on the date of the accident, as much more than 50 years as accepted by the tribunal on the basis of Ex.A4. Learned counsel also submits that the gross salary is taken into consideration without keeping in mind the ingredients such as basic pay and dearness allowance, the other allowances according to him cannot be considered as gross income. 5. Learned counsel for the respondents-claimants, on the contrary, submits that the gross salary, as on the date of the accident, alone is taken into consideration and in fact, the salary with increments, which he would have earned in the rest of the service left have been excluded from consideration, though the Supreme Court in KERALA STATE ROAD TRANSPORT CORPORATION v. SUSAMMA THOMAS[1] has held that assessment of reasonable increase is permissible. However, the said question may not arise in consideration in view of the fact that the respondents’ claim was for Rs.10,00,000/- and the same has been decreed and consequently, there is no appeal or cross-appeal by the claimants. 6. After considering the rival contentions, I find force in the contention of the counsel for the appellant that the age of the deceased ought to have been assessed on the basis of Ex.B1 rather than going by the postmortem report, which is an assumption of age. If we go by Ex.B1, therefore, the age of the deceased on the date of the accident would be 55 years. The tribunal, therefore, was not right in considering the age of the decease as 50 years. However, in view of the latest decision of the Supreme Court in SARLA VERMA v. DELHI TRANSPORT CORPORATION[2] multiplier for the age group of 51 to 55 years being 11 and the same multiplier having been applied by the tribunal below for different reasons, it would not make any difference so far as the calculation of dependency is concerned. Since the claim made by the claimants was only for Rs.10,00,000/- it is also not necessary to consider reasonable increments on the salary earned by the deceased. Looking at from either of the points of view, the quantification of dependency arrived at by the tribunal below even otherwise would work out to the same amount and keeping in view the maximum claim of Rs.10,00,000/- made by the claimants in the OP, it is not necessary to go into the exact quantification as per the decision in SARLA VERMA’s case (2 supra), by treating the gross salary of the deceased on the date of his death as the multiplicand. The last of the contention of the learned counsel, however, to the extent of interest is justified and it requires to be scaled down to 6% to be in conformity with the decision of the Supreme Court in SARLA VERMA’s case (2 supra). The civil miscellaneous appeal is, therefore, allowed in part modifying the award to the extent of scaling down the interest from 7.5% to 6% per annum from the date of claim petition till the date of realization. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 23, 2010 DSK [1] (1994) 2 SCC 176 [2] (2009) 6 SCC 121