THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. No.1720 OF 2011 JUDGMENT:- The appeal is filed by the National Insurance Company against the award dated 02-01-2004 in O.P.No.712 of 1998 on the file of the Court of Motor Accidents Claims Tribunal-cum-I Additional District Judge, Ongole. The application was originally filed by the first petitioner for a compensation of Rs.7 lakhs for the injuries received by him in a motor accident that occurred on 09-04-1998. It was alleged that the deceased was an operator of a Proclainer earning Rs.4,000/- per month and as the Proclainer failed, it was brought by linking to a Tractor and Trailer bearing Nos.AP-27-C-4815 and 4816 and they belong to the first respondent. Due to the rash and negligent driving of the driver of the Tractor and Trailer, the link has broken and the Proclainer fell down from the Tractor and the deceased fell underneath the Proclainer and succumbed to injuries later. He became permanently disabled and he spent money for the treatment. The first respondent is the owner of the Tractor and Trailer and respondent Nos.2 and 3 are Insurance Companies and they are jointly and severally liable to pay the compensation. The first respondent remained ex parte and the second respondent filed a counter contending that the risk is not covered under the policy and the nature of the injuries and nature of the treatment also disputed and, therefore, the 3rd respondent was subsequently impleaded being the insurer of the Proclainer and it was contended that the Insurance Company is not liable to pay the compensation and the Tribunal has no jurisdiction. Since the first petitioner died during the course of trial and the other petitioners have come on record. On behalf of the petitioners/claimants PWs.1 to 3 were examined and marked Exs.A-1 to A-8. On behalf of the respondents Rw.1 was examined and B-1 was marked. After considering the evidence on record, the lower Tribunal has granted a compensation of Rs.5,69,600/- payable jointly and severally by the respondents and aggrieved by the said judgment the 3rd respondent has filed the present appeal. Now the point that arises for consideration is:- Whether granting of compensation by the lower Tribunal is legal and whether the appellant is liable to pay for the said amount? POINT:- So far as the nature of the accident is concerned, the lower Tribunal found that the incident happened due to the fault of the driver of the Tractor and Trailer and deceased came underneath the Proclainer and received multiple injuries and later died. The lower Tribunal fixed the rashness and negligence on the part of the driver of the Tractor and Trailer. So far as determination of the compensation is concerned, evidently, the claim was made when the deceased was alive and he is said to have died on 18-06-2001 and the legal representatives were brought on record. Therefore, the death of the deceased was nearly three (3) years after the date of accident. There is said to be amputation of both legs and other injuries to the deceased and he was treated. The claimants have not amended the claim for compensation on loss of dependency. Therefore, the claimants will be entitled only to the extent of compensation for which the deceased would be entitled. Evidently, even as per the provisions of the Workmen’s Compensation Act, 1923, the amputations, which are two in number, causes total disability and loss of earnings. Therefore, the lower Tribunal has taken the disability as 100% and loss of earning capacity also as 100%. The lower Tribunal has taken the salary of the deceased as Rs.4,000/- per month without any material on record. The deceased was only a driver. Therefore, the income of the deceased is fixed at Rs.2,000/- per month and after deducting 1/3rd towards his personal expenses, the contribution to the family comes to Rs.1,400/- per month. The age of the deceased is said to be 25 which apparently is not correct as he was having three children. Therefore, I take the age of the deceased as between 31 to 35 years and the multiplier corresponding to the age of the deceased is “16” and if a multiplier “16” is applied, the compensation comes to Rs.2,68,800/-. Further, the lower Tribunal has granted a sum of Rs.3,000/- towards medical expenses and accordingly the said amount was granted. Therefore, the compensation to which the petitioners will be entitled to is Rs.2,71,800/-, which is rounded to Rs.2,75,000/-. So far as the liability of the appellant is concerned, the Tribunal has not fixed any proportionate liability. Evidently, the deceased was driver of the Proclainer, which was insured with the appellant. Though he was technically in employment, the incident was due to rash and negligent driving of the driver of the Tractor and Trailer. Hence, there can be only an apportionment of the liability. Therefore, I hold that 75% of the compensation shall be paid by the second respondent, who is the insured of the Tractor and Trailer and 25% shall be paid by the appellant herein. With the above modification, the award of the Tribunal is confirmed with interest @ 6% per annum. So far as the apportionment is concerned, evidently, the 5th petitioner is mother of the deceased and a sum of Rs.25,000/- is granted to her and she is permitted to withdraw the said amount. The balance of the amount shall be apportioned to a tune of Rs.50,000/- each to the petitioners 3, 4 and 6 and the amounts so apportioned shall be kept in fixed deposits till they attain the age of majority and the second petitioner (mother) is permitted to withdraw the periodical interest. Further, the second petitioner is permitted to withdraw a sum of Rs.50,000/- and of the balance which is apportioned to her. The balance shall be kept in FDR for three years and can withdraw interest. Accordingly, the appeal is disposed of. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 02-11-2011 TSNR