IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A. No.2661 of 2007 And M.A.C.M.A. No.3085 of 2007 Dated: 02-12-2011 M.A.C.M.A. No.2661 of 2007 Between: Anne Kondaiah and 6 others ….Appellants And Sri Abdul and 2 others ….Respondents. M.A.C.M.A. No.3085 of 2007 Between: National Insurance Company Ltd. ….Appellant And Anne Kondaiah and 6 others ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A. No.2661 of 2007 And M.A.C.M.A. No.3085 of 2007 COMMON ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) Both the appeals are directed against the award passed in O.P.No.447 of 2005 by the Chairman, Motor Accidents Claims Tribunal– cum–II Additional District Judge, West Godavari at Eluru on 20.08.2007. The appeal M.A.C.M.A.No.2661 of 2007 is filed by the claimants for enhancement of the compensation and the appeal M.A.C.M.A.No.3085 of 2007 is filed by the Insurance Company challenging the award passed by the Tribunal. The claimants, who are the parents, wife and children of the deceased Venkata Krishna Rao, have filed the application under Section 166 of M.V.Act claiming compensation of Rs.1,14,26,138/- for his death in a motor vehicle accident. According to the petitioners, the deceased Venkata Krishna Rao was working as a Deputy Superintendent Engineer in O.N.G.C. and drawing a gross salary of Rs.52,655/- per month by working in E-III category of Executive Class and he will be promoted as category E-VII and the monthly salary by the date of his retirement will be Rs.1,00,914/- . On 07.04.2005 at 7.30 a.m. when the deceased was coming back from the Central Excise Colony, Eluru on his motor cycle bearing No.AP-37- AB-8885 by collecting the current bill of his house, a mini van bearing No.AP-16-X-3902 came in a rash and negligent manner at high speed in the opposite direction going from Eluru to Vijayawada and dashed against the motorcycle of the deceased. Due to which the deceased fell down and died on the spot. Hence, the claim. The respondents 1 and 2 have remained ex parte. The 3rd respondent-Insurance Company has filed the counter opposing the claim pleading that the owner and the insurer of the motor cycle are necessary parties and denied that the accident was occurred due to the rash and negligent driving of the driver of the mini van and according to them the accident was occurred due to rash and negligent driving of the motorcycle by the deceased himself. As such the petitioners are not entitled for any compensation. They also denied about the deceased drawing a salary of Rs.52,655/- per month by working as Deputy Superintendent Engineer in O.N.G.C. and put the petitioners to strict proof with regard to the age and income of the deceased. They further pleaded that the compensation claimed by the petitioners is highly excessive. Basing on the above pleadings, the Tribunal has framed the following issues: (1) Whether the deceased Anne Venkata Krishnarao died in a motor vehicle accident on 7-4-2005 due to the rash and negligent driving of the Mini Van bearing No.AP-16-X-3902? (2) What is the age and income of the deceased? (3) Whether the petitioners are entitled to claim compensation? If so, to what amount and from which of the respondents? (4) To what relief? On behalf of the petitioners, P.Ws.1 to 3 were examined and got marked Exs.A-1 to A-7. On behalf of the respondent No.3, R.Ws.1 and 2 were examined and got marked Ex.B-1. The Tribunal by taking into consideration of the said oral and documentary evidence, held the issue No.1 in favour of the claimants holding that the accident was occurred due to rash and negligent driving of the Mini Van bearing No.AP-16-X-3902 by the 1st respondent. The Insurance Company has challenged the said finding of the Tribunal by pleading that the Tribunal has failed to consider the evidence of R.W.1, who has spoken that the accident was occurred due to rash and negligent driving of the vehicle by the deceased himself and also further pleaded that there is head-on-collision between two vehicles ought to have held that the deceased has contributed to the accident. The Tribunal by taking into consideration of the evidence of P.Ws.1 and 2 and coupled with Exs.A-1 to A-4 has arrived at the above finding. Admittedly, the Tribunal did not consider the evidence of R.W.1, who is the driver of the Mini Van bearing No.AP-16-X-3902 belongs to the 2nd respondent. According to R.W.1, his vehicle met with an accident about one year back after crossing Satrampadu village and his van was proceeding from Eluru to Vijayawada. At that time, the motorcyclist came in high speed in the rash and negligent manner and dashed to his van. At that time his vehicle was proceeding on the left side of the road and the accident was occurred due to rash and negligent driving of the vehicle by the deceased. But in the cross- examination, he admitted that the police have registered the case and filed charge sheet against him and said case is still pending. He admitted that he did not lodge any report with the police stating that the accident took place due to rash and negligent driving of the motorcycle by the deceased and he denied that the accident was occurred due to rash and negligent driving of the mini van by himself. Thus, as per his evidence, the police after investigation have filed the charge sheet against him. P.W.2, who is an eye witness to the incident, has categorically stated that while he was in the petrol bunk at Satrampadu, he noticed mini van coming from Eluru side in high speed and went to its right side and dashed to the motorcyclist coming in opposite direction and the said evidence could not be demolished by the counsel for the respondent No.3, in the cross examination. Moreover, the FIR was registered against R.W.1 and the charge sheet was also filed against R.W.1. Therefore, from the above said evidence, it is evident that the accident was occurred due to rash and negligent driving of the driver of the Mini Van bearing No.AP-16-X-3902 and the finding recorded by the Tribunal does not warrant any interference. With regard to issue Nos.2 and 3, the Tribunal held that the deceased was aged about 45 years 10 months and his income is Rs.36,700/- and after deducting one-third towards his personal expenses and by applying multiplier ‘13’, awarded an amount of Rs.38,16,852/- towards loss of dependency, apart from that awarded Rs.2,000/- towards funeral expenses and Rs.15,000/- towards loss of consortium and Rs.15,000/- towards loss of estate. The claimants are questioning the same in the present appeal and seeking for enhancement. The claimants’ counsel has pleaded that the deceased was working as Deputy Superintendent Engineer in O.N.G.C. and he was drawing Rs.52,655/- as gross salary and the gross salary has to be taken into consideration and the Tribunal is erred in not taking into consideration the future prospects of the deceased and since there are six (6) dependants only 1/5th has to be deducted towards his personal expenses and if the above aspects are taken into consideration they are entitled for the compensation as claimed by them. The Standing Counsel for the Insurance Company, on the other hand, has opposed the same and tried to justify the award passed by the Tribunal. According to P.W.1, the deceased was working as Deputy Superintendent Engineer in O.N.G.C. and is drawing gross salary of Rs.52,655/- per month at the time of accident and he will be promoted to the category of E-VII and monthly salary will be at Rs.1,00,914/- as on the date of his retirement and her husband was aged about 45 years at the time of accident. In support of her contention, she has examined P.W.3, who is working as a Manager in O.N.G.C. and according to him Ex.A-6 is the computerized salary certificate of the deceased issued by the organization. Some of the deductions i.e. CPF contribution, CSS Scheme, PRSS Self, PRSS Additional and LIC premium are the savings of the deceased. They used to pay Rs.6,000/- towards incentive and bonus. Now, he cannot say the quantum of incentive paid to the deceased by their organization. In the cross-examination he has admitted that he is the drawing and disbursing officer. Ex.A-6 relates to March, 2005 that was the last pay slip of the deceased. In Ex.A-6, net salary is shown as Rs.36,700/- per month and it does not contain the particulars of the bonus and incentives paid to the deceased by their organization. Therefore, from the evidence of P.W.3, it is admitted that the deceased was working as a Deputy Superintendent Engineer in O.N.G.C. and he was drawing a net salary of Rs.36,700/- as on the date of his death. As per the pleadings in the petition and the evidence of P.W.1, the gross salary of the deceased as on the date of death is Rs.52,655/-. As per Ex.A-6 the salary slip of the deceased an amount of Rs.16,517/- was being deducted towards income tax and Rs.200/- towards professional tax and the same are liable to be deducted from the gross salary of the deceased. Thus, after deducting the same, the salary of the deceased comes to Rs.35,938/-. The deceased aged about 45 years as on the date of his death and since the deceased is having permanent employment, as per the decision rendered in Sarla Verma v. Delhi Transport Corporation[1], the claimants are entitled for 30% of the said salary towards the future prospects of the deceased. Thus, the salary that has to be taken into consideration for awarding the compensation would be Rs.35,938/- + Rs.10,781/- = Rs.46,719/-. As there are 6 dependants, only 1/5th of the salary has to be deducted towards personal expenses of the deceased, as per the decision rendered in Sarla Verma’s case (referred supra). After deducting 1/5th, the dependency of the claimants comes to Rs.37,460/-. Since the deceased was aged about 45 years, the proper multiplier that is applicable as per the decision in Sarla Verma’s case (referred supra) is ‘13’. Thus, the total loss of dependency of the claimants comes to Rs.37,416/- x 12 x 13 = Rs.58,36,896/-. Apart from the above said amount of compensation towards loss of dependency, the claimants are also entitled for Rs.5,000/- towards loss of estate, Rs.5,000/- towards funeral expenses and Rs.10,000/- towards loss of consortium. Thus, in all the claimants are entitled for Rs.58,56,896/- (Rupees fifty eight lakhs fifty six thousand eight hundred and ninety six only). The Tribunal has awarded interest @ 7.5% per annum, but as per the decision rendered in Sarla Verma’s case (referred supra), the claimants are only entitled for the interest at 6% per annum on the above said compensation. In the result, the appeal in MACMA No.2661 of 2007 is partly allowed without costs by enhancing the compensation of Rs.38,48,452/- as awarded by the Tribunal to Rs.58,56,896/- (Rupees fifty eight lakhs fifty six thousand eight hundred and ninety six only) with interest at 6% per annum on the above said compensation from the date of filing of the petition till realization. The appeal in MACMA No.3805 of 2007 is partly allowed only to the extent of reducing the interest from 7.5% per annum to 6% per annum. __________________ JUSTICE N.V.RAMANA _______________________ JUSTICE P. DURGA PRASAD Dated: 02-12-2011 MR THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A. No.2661 of 2007 And M.A.C.M.A. No.3085 of 2007 Date: 02-12-2011 MR [1] (2009) 7 SCC 372 = 2009 AIR SCW 4992