(Prayer: Appeal filed under Order 41 of CPC before the High Court set aside the judgment and decree in OP No.93/2007 dated 03.07.2012 on the file o Hon'ble Court of MACT cum IInd Addi. District Judge, Kurnool at Adoni, and allow the appeal in the interest of justice

IA NO: 1 OF 2013(MACMAMP 890 OF 2013

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased condone the delay of 99 days in preferring the appeal in OP No.93/2007 dated 03.07.2012 on the file of Hon'ble Court of MACT cum IInd Addi. District Judge, Kurnool at Adoni

IA NO: 2 OF 2013(MACMAMP 1043 OF 2013

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in execution of Judgment in O.P. No. 93 of 2007, dt. 3.7.2012 on the court of Hon'ble Court of MACT cum IInd Addl. District Judge, Kurnool Adoni and to pass

IA NO: 3 OF 2013(MACMAMP 2653 OF 2013

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim order dated 20.02.2013, granted in MACMAMP.No.1043/2013 in MACMA(SR).No.6085/2013)

I. Introductory:

1. When a Tata Hitachi machine was being carried in a lorry bearing No. ATS 2455, due to misoperation of the machine, an accident occurred, whereby, the Tata Hitachi fell down on the road, causing the death of one S. Jeelan Basha (hereinafter referred to as “the deceased”). The parents, who were dependents and legal representatives of the deceased, laid a claim for compensation vide M.V.O.P.No.93 of 2007 and the same was partly allowed by the Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, Kurnool at Adoni (for short "the learned MACT"). Under award and decree dated 03.07.2012, the learned MACT granted compensation of Rs.4,00,000/- to the claimants with interest at the rate of 7.5% per annum from the date of petition from the date of realization, against the owner and Insurance Company of the Tata Hitachi Machine, who were arrayed as Respondent Nos.1 and 2, while dismissing the claim against the claim against Respondent Nos.4 and 5, who are the owner and Insurance Company of the lorry on which the machine was being carried. Aggrieved by the award passed, respondent No.2 before the learned MACT viz. the Insurance Company of the Tata Hitachi Machine, filed the present appeal.

2. The claimants are respondent Nos.1 and 2 herein. Respondent No.3 herein is the owner of the Hitachi machine. Respondent Nos.4 and 5 herein are the owner and Insurance Company of the lorry.

3. Respondent Nos.3 and 4 herein, who were respondent Nos.1 and 3 before the learned MACT remained ex parte in the proceedings before the learned MACT.

4. Heard learned counsel for the appellant, learned counsel for respondent Nos.1 and 2 / claimants and learned counsel for respondent No.5/ Insurance Company of the lorry.

5. The Appellant Insurance Company is disputing the award in all respects viz. (1) the entitlement of claimants, (2) the exclusive liability of the appellant and (3) the quantification of compensation.

6. For the sake of convenience, the parties will be hereinafter referred to as the claimants and the respondents with reference to their status before the learned MACT.

II. Case of the claimants:

7(i). The deceased was aged about 20 years and was working as a helper of the Tata Hitachi Machine, earning Rs.6,000/- per month apart from Rs.100/- batta per day. Both the claimants, being the parents of the deceased, lost the support of the deceased, including his financial contribution due to his sudden demise.

                  (ii). On 12.02.2007 at about 06:00 p.m., the driver/operator of the Tata Hitachi Machine, who was sitting in the bottom of the Hitachi, opened the same from the body of the lorry and due to the negligent driving of the driver of the lorry, the Tata Hitachi machine fell from the lorry. The deceased, who was sitting on the Hitachi machine fell down and died on the spot. Both the driver and operator of the lorry and the Hitachi machine are responsible for the accident. Respondent Nos.1 and 2, being the owner and Insurance Company of the Hitachi Machine and respondent Nos.3 and 4, being the owner and Insurance Company of the lorry, are liable to pay compensation.

                  (iii). Further, the specific case of the claimants is that the accident occurred when the Supervisor of the Tata Hitachi Machine, who was sitting in the cabin of the Tata Hitachi, negligently fell on the start button of the Tata Hitachi due to drowsiness, whereby the lever brake was opened and the Tata Hitachi machine self-started from the body of the lorry and fell on the road. The Deceased, who was sitting on the body of the Hitachi, fell down and died on the spot. The deceased was helper of the Tata Hitachi machine. Respondent No.3 is the contractor of the said Tata Hitachi machinery and was taking the same for the purpose of contract work of respondent No.3.

III. Contention of respondent No.1 as per counter:

8. The driver of the Hitachi is not responsible. There was negligence on the part of the deceased. In any event respondent Nos.2 and 4 / Insurance Companies are liable to pay compensation.

IV. Contention of respondent No.2 / Insurance Company of Tata Hitachi machine as per counter:

9. The claimants shall prove the pleaded accident and negligence of the operator of the Hitachi machine. The accident occurred due to the negligence of the driver of the lorry belonging to respondent No.3. The Tata Hitachi machine was transported in a lorry belonging to respondent No.3. The lorry is insured with respondent No.4. Respondent No.2 is not aware of the employment of the deceased with respondent No.3, whether the driver of respondent No.3 drove the vehicle in a negligent manner or whether respondent No.3 is a contractor of Tata Hitachi machinery and was taking the same for the purpose of contract works of respondent No.3. As per the investigation got done by respondent No.2, the accident occurred due to negligent driving of respondent No.3 but not due to any fault of respondent No.1 driver, hence there is no liability on respondent No.2. The Tata Hitachi machine is not a motor vehicle unless it moves on the road. Since the machine was loaded on the lorry of respondent No.3 for the purpose of transportation from one place to another, there cannot be any liability on respondent No.2. V. Contention of respondent No.3 as per counter:

10. The negligence of the deceased is the cause for the accident. In any event, respondent Nos.2 and 4 are liable to pay the compensation.

VI. Case of respondent No.4/Insurance Company of the lorry:

11(i). The petitioners shall prove what all pleaded by them with necessary documents, including their legal heir status and entitlement.

                  (ii). The accident, negligence of the driver of the lorry etc. shall be proved properly. Further, the age, occupation and income of the deceased shall be shown with cogent evidence.

                  (iii). The factum of insurance of the lorry with respondent No.4 and compliance with the conditions of policy etc. shall be proved.

                  (iv). The involvement of the lorry is falsely created. Negligence of the deceased is the cause for accident. The deceased was a helper to the Hitachi vehicle belonging to respondent No.1. Therefore, only Respondent No.1 is liable to pay the compensation and the claimants ought to have approached the appropriate tribunal under the Workmen‟s Compensation Act. There is violations of the conditions of policy, including the want of driving licence to driver of the lorry. In any event, respondent No.4 is not liable to pay compensation.

                  (v). Further, the stand of respondent No.4 is that the lorry involved in the accident was not insured with respondent No.4. Wrong cover note details are given. Due to drowsiness and negligence of the driver/Supervisor of Tata Hitachi, Rallapalli Narasimhulu, who was sitting in the cabin of the Tata Hitachi, there was self start and machine fell down from the body of the lorry. Hence, respondent No.4 is not liable to pay any compensation.

VII. Findings of the learned MACT:

(a) On accident and negligence:

12(i). The claimants relied on copies of the FIR-Ex.A1, charge sheet-Ex.A2, Inquest Panchanama-Ex.A3, Post-mortem Examination Report-Ex.A4, Policy copy-Ex.A5, another Policy copy-Ex.A6 and the Family Members Certificate-Ex.A7.

                  (ii). P.W.3, one Ramana, a third party to the proceedings, stated that he and the deceased boarded the lorry and while they were proceeding to Bathalapalli near Velpamadugu Village, the driver of the lorry drove the vehicle in a rash and negligent manner, as a result of which the lorry along with Tata Hitachi machine turned turtle and the deceased died on the spot. The deceased was working as helper of the Tata Hitachi. At the time of accident, the Supervisor, Narasimhulu, was sitting in the Hitachi machine. He is the operator of the machine.

                  (iii). P.W.3 admitted during cross-examination that the accident occurred due to fault of the operator of the Tata Hitachi machine and that he has stated before the Police that accident occurred due to the fault of the Supervisor of Tata Hitachi machine.

                  (iv). R.W.1 admitted that charge sheet was laid against the driver employed by respondent No.1. R.W.2, the owner of the lorry, stated that the accident took place due to negligence of the Supervisor of the Tata Hitachi Machine.

                  (v). R.W.3-Motor vehicle Inspector, stated that, as per his records, the lorry was not insured. He gave accident information report-Ex.X2 and Ex.X1-summons and Ex.X2 is the inspection report.

                  (vi). R.W.4 is the Insurance Surveyor. As per his evidence, he is a Diploma holder in Horological Engineering. Without an ignition lock and key system, the excavator cannot be started or moved automatically.

                  (vii). R.W.5 is the Senior Assistant in the office of Respondent No.4 branch stated that respondent No.3 did not insure the lorry with their company and that respondent No.4 has served a memo asking respondent No.3 to furnish insurance particulars. But, the same is not complied with. From the evidence of P.Ws.1 and 3 and documentary evidence on record, it is clear that the deceased was a helper of the Tata Hitachi machine.

                  (viii). It appears clearly that the Hitachi machine is a heavy machine and when it starts moving on the body of the lorry, it will be difficult for the lorry driver to control it. The lorry turned turtle because of the sudden movement of the Tata Hitachi machine.

                  (ix). It is not the case that there are heavy ditches or that the road was under repair and that the vehicle could not be controlled. The turbulence is caused by the Hitachi machine and the lorry driver could not control the vehicle. As a result, both vehicles turned turtle. The absence of precaution from the driver of the lorry cannot be accepted, as he asked the supervisor of Tata Hitachi machine to sit in the cabin of the machine. The driver of the lorry also did not take all necessary precautions and he should not have allowed the Supervisor to sit in the cabin of the Tata Hitachi machine, visualizing the movement. Therefore, there is negligence on the part of both the Supervisor as well as the lorry driver, but, the major part is on the part of Supervisor of the Tata Hitachi machine. Therefore, the Police charge sheeted him. Hence, the negligence is on the part of the operator of the Tata Hitachi machine.

                  (b) On liability:

                  (x). Ex.B1 is the policy pertaining to the Tata Hitachi machine. There is no evidence as to violation of the conditions of policy. The Policy covers the damage to third party and the same is comprehensive policy. Therefore, the insurer of the Tata Hitachi machine is liable to pay compensation.

                  (xi). Respondent No.5 deposed that the lorry was not insured on the date of offence. When such a specific defence is there, the burden lies on the owner of the lorry to place the insurance details. But, respondent No.3 failed to do so. Since R.W.1 did not enquire whether the lorry was insured or not, he is also liable in that regard. Respondent No.4 Insurance Company is not liable to pay any compensation.

                  (c) Quantum:

                  (xii). No evidence is produced to show the income of the deceased. Taking note of the socio economic conditions, Rs.100/- per day can be accepted as income of the deceased, which comes to Rs.3,000/- per month. 1/3rd towards the personal expenditure can be deducted. Then his contribution can be Rs.2,000/- per month and Rs.24,000/- per annum. Multiplier “16‟ is applicable. Then, the entitlement of claimants for compensation towards loss of future earnings comes to Rs.3,84,000/-. Claimants are entitled for Rs.10,000/- towards loss of love and affection and Rs.6,000/- towards funeral expenditure and transportations charges. In all, the claimants are entitled for total compensation of Rs.4,00,000/-.

                  (d) Who are liable:

                  (xiii). Respondent Nos.1 and 2 are jointly and severally liable.

VIII. Arguments in the appeal:

(A). For the appellant / Insurance Company with which the Tata Hitachi machine was insured:

13(i). The Hitachi machine was not in movement on the road at the time of accident. Therefore, there cannot be any liability.

                  (ii). The deceased is not covered under the policy.- Ex.B1. There is no employer-employee relationship between respondent No.1 and the deceased.

                  (iii). Respondent No.3 is the contractor under whom the deceased is deemed to have been working. Therefore, there cannot be any liability on respondent Nos.1 and 2. Deceased is an authorized passenger.

                  (iv). The learned MACT erred in ignoring the evidence of R.Ws.1 and 2 and Exs.B1 and B2.

                  (v). The learned MACT erred in taking the age of the deceased instead of the age of the mother of the deceased.

                  (vi). The learned MACT ought to have considered deduction at one-half (½) towards personal expenses, as the deceased was unmarried, but deducted only one-third (1/3).

                  (vii). Rate of interest awarded is excessive.

(B) For the claimants:

14(i). The Claimants, being third parties, are entitled for compensation against the tortfeasor and the persons vicariously liable on behalf of the tortfeasor, viz. the employer of the tortfeasor etc.

                  (ii). The Policy, Ex.B1, is a comprehensive policy and covers the risk. The compensation awarded requires enhancement.

                  (iii). There are no grounds to interfere except for enhancement of the compensation.

(C) For Respondent No.5:

15(i). There is no liability on respondent No.5 for want of insurance and also for the reason that the negligence is on the part of the Tata Hitachi machine operator. The Police also laid a charge sheet against the operator of the Tata Hitachi machine.

                  (ii). The learned MACT discussed and answered the issue relating to negligence comprehensively. Hence, there are no grounds to interfere on any point.

16. Heard both sides extensively. Perused the record. Thoughtful consideration is given to the arguments advanced by both sides.

IX. Points for determination:

17. The points that arise for determination in this appeal are:

                  1) Among the driver / operator of the lorry and the operator of the Hitachi machine, who is responsible for the accident and whose negligence is cause for the accident? Whether the Hitachi machine can be said to be a motor vehicle and in operation at the time of accident? Whether the findings of the learned MACT fixing the negligence on the part of the operator of the Hitachi machine are proper?

                  2) Whether the claimants are entitled for compensation? If so, to what quantum and what is the liability of the respondents? Whether the liability imposed on respondent Nos.1 and 2 by the learned MACT is proper? Whether the compensation of Rs.4,00,000/- awarded by the learned MACT under the impugned award and decree dated 03.07.2012 in M.V.O.P.No.93 of 2007 is proper or requires any interference? If so, to which extent?

                  3) What is the result of the appeal?

Point No.1:

Accident and Negligence:

Statutory Guidance:

18(i). As per Section 176 of the Motor Vehicles Act, the State Governments are entitled to make rules for the purpose of carrying effect to the provisions of the Motor Vehicles Act.

                  (ii). In relation to claims before the learned MACT, Rule 455 to Rule 476 of the A.P. Motor Vehicles Rules, 1989, vide Chapter No.11 provides comprehensive guidance. As per Rule 476 of the A.P. Motor Vehicles Rules, 1989, the claims Tribunal shall proceed to award the claim basing on the registration certificate of the vehicle, insurance policy, copy of FIR and Post-mortem certificate etc.

Precedential Guidance:

19. The Hon‟ble Apex Court in Bimla Devi and others Vs. Himachal Road Transport Corporation (2009 (13) SCC 530), in para 15 observed as follows:

                  “15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties..”

Analysis as to accident and negligence:

20(i). FIR-Ex.A1 is registered against the driver of the lorry bearing No.ATS 2455. As per the contents in Ex.A1-FIR, when the Hitachi machine was carried in the lorry, there was negligence and the accident occurred. It is also mentioned in the complainant annexed to Ex.A1 that, while the Tata Hitachi was being carried, it fell down and a person fell under the Tata Hitachi machine. But, when it comes to charge sheet-Ex.A2, the same was laid against one Rallapalli Narasimhulu, who was working as Supervisor of Tata Hitachi machine working under its owner G. Sreenivasulu (respondent No.3), who was cited as L.W.5 in the charge sheet. That the accused Narasimhulu was sitting in the cabin.

                  (ii). The deceased Shaik Jeelan Basha, aged about “28‟ years, was travelling on the machine. The Tata Hitachi machine all of a sudden started while on the body of the lorry and fell down from the lorry on the road and lorry also fell down due to shake on either side. The deceased was helper sitting on the wheel chain of the Tata Hitachi, died instantaneously, sustaining crushing injuries to his head and his left hand upto shoulder was cut. The accident took place when the Supervisor of the Tata Hitachi machine while he was in drowsiness. He fell on the starter button moves towards the right side, resulting the lever brake was opened and Tata Hitachi was self started from the body of the lorry and fell down from the lorry on the road.

                  (iii). The Inquest Report and Post-mortem Reports support the death of deceased due to accident. Material witness P.W.1 is not an eye witness to the accident.

                  (iv). P.W.2 said to be a third party but his evidence is eschewed.

                  (v)(a). P.W.3 said to the eye witness stated that he and the deceased boarded the Hitachi machine and that there was negligence on the part of the driver of the lorry. The deceased was working as helper in the Hitachi machine. But, during cross examination on behalf of respondent Nos.1 and 3, he has stated that he was travelling in the lorry. The Supervisor, Narasimhulu, was sitting in the Hitachi machine, who is operator of the Hitachi machine. The deceased is helper in the Hitachi machine and was working employed by its owner. The accident occurred due to the fault of the Hitachi machine operator. There was no fault on the part of the driver of the lorry.

                  (b). During cross examination on behalf of respondent No.4-Insurance Company, he has stated that the Police filed a case against the Supervisor of the Hitachi machine. He was examined by the Police and he has stated that the accident occurred due to the fault of the Supervisor of the Hitachi machine.

                  (c). During cross examination of respondent No.2 / appellant, the material witness stated that he was sitting in the cabin of the lorry. He has not given any complaint to the Police. He has received dumb injuries. He do not know whether his name is mentioned in the criminal case records or whether he is cited as witness. The Hitachi machine was being transported in the lorry. It is only when the Hitachi machine is on the road that the Supervisor, helper or operator will do duties for the machine. Their duties are during loading and unloading operations. He has denied the suggestion that the deceased was not working as a helper for the Hitachi machine.

                  (d). During re-examination, he has stated that, as per his chief-examination, both the driver of the lorry and the operator of the Hitachi machine are responsible for the accident.

21. The appellant-Insurance Company is disputing the negligence on the part of the Hitachi operator with reference to Ex.A1-FIR. It is settled law and practice that the standard of proof required in appreciating the evidence in motor accident claim cases is one of preponderance of probabilities and not proof beyond reasonable doubt. The tribunal shall have holistic approach as per guidance of the Hon'ble Apex court vide Bimla Devi and others Vs. Himachal Road Transport Corporation (1 supra).

22. The contents of the FIR can be relied on, but they are not conclusive by themselves. If there is any material contra thereto, the same can be given credence. The Police, in regular discharge of their official functions, filed charge sheet against the operator of the Tata Hitachi machine. The claimants examined P.W.3 who said to be an eye witness to the accident travelled along with the Hitachi machine. His travel in lorry along with the Hitachi machine, are out of dispute. Deceased was also travelling along with Hitachi machine is very clear.

23. Supervisor of the Hitachi machine was also in the along with the Hitachi machine is also clear and he is accused in the crime. Appellant Insurance Company did not choose to summon any other witness cited in the charge sheet Ex.A2. Evidence of R.W.1 is self serving statement of the official of respondent No.2-Insurance Company and he is not an eye witness to the accident.

24(i). R.W.2 is the owner of the lorry. His evidence is that he came to know that the accident took place due to supervisor of Tata Hitachi machine and there was no negligence on the part of the driver of the lorry. He has also added that the driver of the Hitachi machine was charge sheeted.

                  (ii). During cross examination, on behalf of the claimants, he has stated that the Police examined him in connection with this case. It is relevant to note that G. Sreenivasulu, R.W.2 was cited as L.W.5 by the Police.

                  (iii). During cross examination, he has stated that his vehicle is not insured with respondent No.4 as on the date of accident and that he is not eye witness to the accident. Nothing important could be elicited during the cross examination of R.W.2 except suggesting that he has colluded with the claimants and got the case foisted against the driver of the respondent No.1.

25. From the evidence of P.Ws.2, 3 and R.W.2 and in the recitals in Ex.A2 charge sheet, it can be safely inferred that the claimants are able to discharge their burden and show their case as to negligence of the driver of the Hitachi operator / supervisor of the Hitachi machine with at least probability. To discharge the onus / burden shifted to the Insurance Company, there is no convincing evidence from respondent No.2 / appellant Insurance Company. Therefore, negligence on the part of the operator / supervisor of the respondent No.1 can be considered as cause for the accident and the findings of the learned MACT to that extent found fit for confirmation. The Hitachi machine was not in movement is the argument. It may not be movement on the road but its movement from the lorry which was on the road and its falling on the road at relevant time being the cause for accident and the death of the deceased are clear. The contention that the Hitachi machine cannot be considered as motor vehicle at the relevant point of time and it can be considered as only goods is liable to be rejected. Therefore, the said contention is not accepted.

26. It is not of the case that the Hitachi machine was not in movement at the relevant time. The exclusive negligence or the conduct of the driver of the lorry contributing for the movement of the Hitachi machine is not shown. There is specific intervention of the persons concerned with the Hitachi machine which caused the movement of the Hitachi machine and also the accident. Therefore, the negligence on the part of the operator / supervisor of the Hitachi machine, being the root cause for the accident can be accepted.

27. The reasoning and finding of the learned MACT are found legal and logical. In view of the discussion made above, this Court finds that the negligence of the operator of the Hitachi machine is the cause for the accident and point No.1 is answered accordingly, concurring with the findings of the learned MACT.

Point No.2:

Liability:

28. Respondent No.2 / appellant is seeking excuse form the liability on the ground that there was no negligence on the part of the operator of the Hitachi machine. But, the findings on Point No.1 are very clear in Indicating and fixing the negligence on the operator of the Hitachi machine. The Hitachi machine, in fact, registered as a motor vehicle and insurance premium is collected on the ground that it is motor vehicle. Even the cross-examination done on behalf of the Insurance Company suggests the role of the operator or the supervisor or helper of the Hitachi machine when it moves on the road. The Hitachi machine can move when operated / driven. There is no dispute about the same. When the Hitachi machine can move on the road, it can even move on the lorry as well. The necessary precautions not to move the same form the lorry could have been taken by the operator of the Hitachi machine also viz. respondent No.1.

29. The occurrence of an accident while the motor vehicle was in use is the standard on which the liability of either tortfeasor or its Insurance Company commences. As rightly observed by the learned MACT, no violations are shown. The Hitachi machine was in operation, Be it on lorry or be it on road. The operation was from lorry to road, as per the incident. It was an improper operation and the same is sufficient to attract the negligence. Therefore, excuse on the part of the either respondent No.1 or the Insurance Company cannot be accepted.

30. Hence, the liability fixed on respondent No.2 need not be interfered and this Court finds that respondent No.2 is liable.

Quantum:

Precedential guidance:

31(i). For having uniformity of practice and consistency in awarding just compensation, the Hon‟ble Apex Court provided guidelines as to adoption of multiplier depending on the age of the deceased in Sarla Verma (Smt.) and Ors. Vs. Delhi Transport Corporation and Anr. (2009 (6) SCC 121) and also the method of calculation as to ascertaining multiplicand, applying multiplier and calculating the compensation vide paragraph Nos.18 and 19 of the Judgment.

                  (ii). Further the Hon‟ble Apex Court in National Insurance Company Ltd. v. Pranay Sethi and Others (2017(16) SCC 680) case directed for adding future prospects at 50% in respect of permanent employment where the deceased is below 40 years, 30% where deceased is between 40-50 years and 15% where the deceased is between 50-60 years. Further, in respect of self employed etc., recommended addition of income at 40% for the deceased below 40 years, at 25% where the deceased is between 40-50 years and at 10% where the deceased is between 50-60 years. Further, awarding compensation under conventional heads like loss of estate, loss of consortium and funeral expenditure at Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively is also provided in the same Judgment.

                  (iii). Further in Magma General Insurance Company Ltd. v. Nanu Ram and Others ((2018) 18 SCC 130), the Hon‟ble Apex Court observed that the compensation under the head of loss of consortium can be awarded not only to the spouse but also to the children and parents of the deceased under the heads of parental consortium and filial consortium.

Just Compensation:

32. In Rajesh and others vs. Rajbir Singh and others ((2013) 9 SCC 54), the Hon‟ble Supreme Court in para Nos.10 and 11 made relevant observations, they are as follows:

                  10. Whether the Tribunal is competent to award compensation in excess of what is claimed in the application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At para 10 of Nagappa case [Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 : 2003 SCC (Cri) 523 : AIR 2003 SC 674] , it was held as follows: (SCC p. 280) “10. Thereafter, Section 168 empowers the Claims Tribunal to “make an award determining the amount of compensation which appears to it to be just‟. Therefore, the only requirement for determining the compensation is that it must be “just‟. There is no other limitation or restriction on its power for awarding just compensation.”

                  The principle was followed in the later decisions in Oriental Insurance Co. Ltd. v. Mohd. Nasir [(2009) 6 SCC 280 : (2009) 2 SCC (Civ) 877 : (2009) 2 SCC (Cri) 987] and in Ningamma v. United India Insurance Co. Ltd. [(2009) 13 SCC 710 : (2009) 5 SCC (Civ) 241 : (2010) 1 SCC (Cri) 1213]

                  11. Underlying principle discussed in the above decisions is with regard to the duty of the court to fix a just compensation and it has now become settled law that the court should not succumb to niceties or technicalities, in such matters. Attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim.

Analysis:

33. The deceased was aged about 20 years, as per the inquest and Post-Mortem Report. The income of the deceased was rightly accepted at Rs.3,000/- per month taking note of socio economic circumstances of the year in which the accident occurred viz. 12.12.2007. However, since the deceased was aged about 20 years, 40% percent of the income can be added towards the future prospects. Whereby the monthly income comes to around Rs.4,200/- instead of deducting 1/3 rd towards personal expenditure, the deduction shall be 50%, since the deceased was unmarried. Whereby, the contribution of the deceased to the family comes to Rs.2,100/- per month and Rs.25,200/- per annum, which can be considered as multiplicand. For the age group of “20‟ years, multiplier applicable is 18. On application of the same, the entitlement towards loss of dependency comes to Rs.4,53,600/- (Rs.25,200/- x18).

34. Further, the claimants are entitled for loss of consortium at Rs.40,000/- each under the head of filial consortium.

35. In view of the reasons and evidence referred above, the entitlement of the claimants for reasonable compensation in comparison to the compensation awarded by the learned MACT is found as follows: