THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A. No. 1527 of 2010, Cross Objections (Sr) No. 39518 of 2010 and M.A.C.M.A. M.P. No. 3463 of 2011 Judgment: (Per N.V. Ramana, J.) The appellant-Insurance Company filed this appeal questioning the order dated 28.05.2009 passed by the Motor Accidents Claims Tribunal, in M.V.O.P. No. 99 of 2008, awarding compensation of Rs.13,00,040/- along with interest at the rate of 9% per annum to respondent Nos. 1 to 4-claimants as against their claim of Rs.17,00,000/-, While respondent Nos. 1 to 4-claimants filed cross- objections contending that the compensation awarded by the Tribunal is very meagre and needs to be enhanced. They also filed petition in M.A.C.M.P. No. 3643 of 2011 praying to permit them to enhance the claim from Rs.17,00,000/- to Rs.24,75,000/-. On 04.01.2008, while the deceased Lingam Ramachandra Reddy, was going to his house on a motorcycle bearing registration No. AP 21L 8460, at about 8.45 p.m. on reaching Veldurthy on NH Road, he met with an accident when a mini lorry bearing registration No. AP 02T 6293 coming from the opposite side, driven by its driver in a rash and negligent manner, dashed against the motorcycle. The deceased died on the spot. Therefore claiming compensation for the death of the deceased, respondent Nos. 1 to 4-claimants, namely his wife, married daughter and two unmarried daughters filed claim petition before the Tribunal against respondent No.5-owner of the mini lorry and the appellant-Insurance Company, with whom the mini lorry was insured, contending that the deceased at the time of his death was aged 47 years. That he was working as Lineman in APCPDCL and earning monthly salary of Rs.15,240/-, and that they are dependant on him, and that on account of his sudden demise in the accident, they lost the source of dependency, and prayed the Tribunal to award compensation of Rs.17,00,000/-. Respondent No.5-owner of the mini lorry remained ex parte. While the appellant-Insurance Company filed counter inter alia denying the stand taken by respondent Nos. 1 to 4-claimants and contended that the driver of the mini lorry was not having valid and effective driving licence. The deceased drove the motorcycle in a rash and negligent manner and as such, he also contributed to the accident. The claim petition without impleading the owner of the motorcycle and its insurer, is not maintainable. The compensation claimed by respondent Nos.1 to 4-claimants is excessive and exorbitant. Before the Tribunal, respondent Nos. 1 to 4-claimants examined P.Ws. 1 to 3 and marked Exs. A1 to A65 and Exs. X1 and X2, while the appellant-Insurance Company examined none, but marked Ex. B1- Inusrance Policy. The Tribunal having considered the respective contentions of the parties in the light of the evidence adduced by them, held that the accident in which the deceased died occurred due to the rash and negligent driving of the mini lorry by its driver and that the claim petition without impleading the owner of the motorcycle and its insurer, is maintainable. So far as quantum of compensation is concerned, the Tribunal took the income of the deceased at Rs.16,000/- per month and after deducting one-third of the same towards personal expenses of the deceased, worked out his contribution to the family at Rs.10,667/- per month i.e. Rs.1,28,004/- per annum, and considering the fact that the deceased was aged 47 years, applied the multiplier 10 and worked out the compensation to Rs.12,80,040/-, and it further awarded an amount of Rs.5,000/- towards transportation of the dead body and funeral expenses and Rs.15,000/- towards loss of consortium to respondent No.1-claimant. Thus in all, the Tribunal awarded compensation of Rs.13,00,040/- along with interest thereon at the rate of 9% per annum from the date of claim petition till the date of realization. The learned counsel for the appellant contended that the deceased drove the motorcycle without wearing helmet in a rash and negligent manner, and as such, he should also be held equally liable for the accident. Therefore, respondent Nos.1 to 4-claimants are not entitled to any compensation. He further contended that the Tribunal committed an error in taking the gross salary of the deceased instead of his net salary, for the purpose of computing the compensation. He thus prayed that the compensation awarded by the Tribunal has to be reduced. On the other hand, the learned counsel for respondent Nos.1 to 4-claimants supported the order under appeal and submitted that non- wearing of helmet by the deceased at the time of accident cannot be a ground to refuse compensation to his dependants on account of his death. He further submitted that the compensation awarded by the Tribunal is very meagre and needs enhancement. He further submitted that in view of the judgment of the Apex Court in Sarla Verma v. Delhi Transport Corporation[1], since the deceased had a permanent job and was aged 47 years, 30% of the actual income has to be added to the actual income of the deceased towards future prospects and the multiplier 13 has to be applied, and so calculated, the compensation would work out to more than what respondent Nos. 1 to 4-claimants originally claimed. He submitted that since respondent Nos. 1 to 4-claimants are entitled to more compensation than what they originally claimed, they should be permitted to claim enhanced compensation from Rs.17,00,000/- to Rs. 24,75,000/-. He thus prayed that enhancement application and consequently the cross- objections be allowed. Heard the learned counsel for the appellant-Insurance Company and the learned counsel for respondent Nos. 1 to 4- claimants. Though the learned counsel for the appellant-Insurance Company relying on the judgment of the Kerala High Court in Siby Paul v. Praveen Kumar G.N.[2] contended that since the deceased while driving the motorcycle was not wearing helmet, contributory negligence should be attributed to him for his death in the accident, the fact remains, nowhere in the counter filed by them in the claim petition, the appellant-Insurance Company did plead that the deceased is also responsible for his death in the accident because of his not wearing the helmet while driving the motorcycle. The appellant, in fact, sought to raise this ground before this Court based on the admission made by P.W.3 in his evidence that the deceased was not wearing helmet when the accident took place. The appellant neither examined Doctor nor the Motor Vehicle Inspector, to ascertain whether the deceased died due to non-wearing of helmet and whether non-wearing of helmet is an offence. They neither examined any independent witness to prove that the deceased also was responsible for the accident so as to attribute contributory negligence to him. The appellant having not pleaded and established that the deceased died due to non-wearing of the helmet, we are of the considered opinion that the appellant merely based on the admission made by P.W.3 in his evidence that the deceased was not wearing helmet at the time of accident, cannot now in appeal, based on the judgment referred to supra, contend that the deceased is also responsible for the accident, and more particularly when the said judgment, in fact, places the burden on the Insurance Company to plead and establish that the deceased died due to non-wearing of helmet and thus contributed to the accident, resulting in his death therein. In that view of the matter, no exception can be taken to the finding recorded by the Tribunal that the accident took place due to the rash and negligent driving of the mini bus by its driver, which finding is based on the evidence on record. Now coming to the quantum of compensation, the deceased was working as Lineman in APCPDCL and was getting Rs.16,000/- and odd per moth towards salary as is evident from Ex. X2. Since the deceased was aged 47 years and had a permanent job, as per the judgment of the Apex Court in Sarla Verma, an addition of 30% of actual salary to the actual salary of the deceased towards future prospects, should be made. On such addition, the salary of the deceased would come to Rs.20,800/- per month i.e. Rs. 2,49,600/- per annum. Tax on income upto Rs.2,00,000/- is exempted. If the rest of the amount of Rs.49,600/- is subjected to 30% income tax, the salary of the deceased would be Rs.2,34,720/- per annum. Of the said amount, one-third should be deducted towards personal expenses of the deceased, and thus deducted, his contribution to the family would be Rs.1,56,480/- per annum. Since the deceased at the time of the accident was aged 47 years, having regard to the judgment of the Apex Court in Sarla Verma, the relevant multiplier applicable is 13, and by applying the multiplier 13 with the multiplicand Rs.1,56,480/-, the loss of dependency to respondent Nos.1 to 4-claimants on account of the death of the deceased would come to (13 x Rs.1,56,480/-) Rs.20,34,240/-. Apart from the said sum, respondent Nos. 1 to 4- claimants, as awarded by the Tribunal, are entitled to Rs.5,000/- towards transportation of dead body of the deceased and funeral expenses. The Tribunal awarded Rs.15,000/- to respondent No.1- claimants towards loss of consortium, but In view of the judgment of the Apex Court in Sarla Verma, respondent No.1 is entitled to only Rs.10,000/- towards loss of consortium, and accordingly the compensation awarded to respondent No.1-claimant under the head “loss of consortium” is reduced from Rs.15,000/- to Rs.10,000/-. Thus, in all, respondent Nos. 1 to 4-claimants would be entitled to Rs. 20,49,240/-, with interest thereon at the rate of 6% per annum. The compensation payable under the Motor Vehicles Act to the dependants of the deceased should be just compensation and it shall not be a windfall. Since by application of the ratio laid down by the Apex Court in Sarla Verma, respondent Nos.1 to 4, who are dependants of the deceased are entitled to more compensation that what they originally claimed, we feel that ends of justice would be met, if the application filed by respondent Nos. 1 to 4-claimants, praying to permit them to enhance their claim from Rs.17,00,000/- to Rs.24,75,000/- is allowed. Accordingly, we allow the same. In view of the above, we dismiss the appeal filed by the appellant and partly allow the cross-objections filed by respondent Nos. 1 to 4-claimants, enhancing the compensation awarded by the Tribunal to respondent Nos. 1 to 4-claimants from Rs.13,00,040/- to Rs.24,75,000/- with interest thereon at the rate of 6% per annum from the date of filing of the claim petition till the date of realization. No costs. _________________ N.V. RAMANA, J. _____________________ P. DURGA PRASAD, J. Dated: 12th September, 2011 KSR [1] (2009) 6 SCC 121 [2] AIR 2009 Kerala 99