Nelaturi Venkatamma v. Post, Komarola post andmandal, Giddalur Taluk Prakasam District
2004-04-01
C.Y.SOMAYAJULU
body2004
DigiLaw.ai
C. Y. SOMAYAJULU, J. ( 1 ) APPELLANT, who is the mother of Srinivasulu (the deceased), a cleaner in the lorry bearing No. AP 21 U 2007 filed a claim petition under the Motor Vehicles act, 1988 (the Act) seeking compensation of Rs. 2,00,000/- for the death of the deceased in an accident that took place due to a collision between the lorries bearing No. AP 7v 4676 and AP 21 U 2000 belonging to respondents 1 and 3 respectively and insured with respondents 2 and 4 respectively on the ground that the deceased who was aged 20 years was earning Rs. 1,500/- p. m. and examined herself as P. W. 1 and another witness as P. W. 2 and marked Exhibits A1 to A5. Respondents 1 and 3, the owners of the vehicles involved in the accident, chose to remain exparte. Respondents 2 and 4, the insurers of the lorries involved in the accident, filed separate counters contesting the claim, but did not adduce any oral evidence, and marked Exhibits B2 and B1 respectively on their behalf with consent. The Tribunal, having held that the accident occurred due to the rash and negligent driving of the lorry belonging to the first respondent, awarded Rs. 52,800/- as compensation to the appellant against respondents 1 and 2 and dismissed the claim against respondents 3 and 4. Dissatisfied with the compensation awarded to her, this claimant preferred this appeal. ( 2 ) SINCE the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the first respondent became final, and since this appeal is filed by the claimant seeking more compensation than that is awarded by the Tribunal, the only point for consideration is to what compensation is the appellant entitled to? ( 3 ) THE contention of the learned counsel for the appellant is that the Tribunal erred in not taking the minimum salary of a cleaner into consideration for fixing the salary of the deceased. He placed strong reliance on SANTHI BAI AND others Vs. CHARAN SINGH AND OTHERS and contended that the compensation claimed by the appellant is most reasonable and so she is entitled to the same. It is also his contention that since the petition is filed also under Section 163-A of the Act, the Tribunal ought to have taken the income of the deceased at rs.
CHARAN SINGH AND OTHERS and contended that the compensation claimed by the appellant is most reasonable and so she is entitled to the same. It is also his contention that since the petition is filed also under Section 163-A of the Act, the Tribunal ought to have taken the income of the deceased at rs. 15,000/- p. a. at least and ought to have awarded general damages also including the non pecuniary damages. The contention of the learned counsel for the second respondent is that, the compensation awarded by the Tribunal is reasonable and so there are no grounds to interfere with the same. ( 4 ) I am unable to agree with the contention of the learned counsel for the appellant that the income of the deceased should be taken as Rs. 15,000/- p. a. in view of Clause-6 of Schedule-II of the Act. Clause-6 of Schedule-II of the Act applies to persons who are having no income by the date of the accident. In respect of persons whose income is known or is ascertainable, Clause-6 of schedule II of the Act does not apply. That would be evident from the fact that schedule-II contains entries of annual income of individual from Rs. 3,000/- p. a. to Rs. 40,000/- p. a. So it is clear that Schedule-II can be applied to persons whose income is Rs. 3,000/- p. a. also. Merely because Clause-6 of Schedule-II says that in respect of persons who had no income, the annual income should be taken as Rs. 15,000/- does not mean that in respect of a person whose income is rs. 3,000/- p. a. also his annual income should be computed as Rs. 15,000/ -. In this case, the deceased, according to the appellant, was employed in the lorry bearing No. AP 21 U 2007 belonging to the third respondent. Ex. A1 (F. I. R.) shows that the driver of that lorry was being paid Rs. 900/- p. m. as salary and that the deceased was working as cleaner therein. Therefore, it is clear that the deceased was employed in the company, which should be having accounts and record relating to the wages being paid to the deceased.
Ex. A1 (F. I. R.) shows that the driver of that lorry was being paid Rs. 900/- p. m. as salary and that the deceased was working as cleaner therein. Therefore, it is clear that the deceased was employed in the company, which should be having accounts and record relating to the wages being paid to the deceased. So appellant instead of adducing oral evidence with regard to the salary of the deceased, ought to have taken steps for production of the registers or account books being maintained by the employer of the deceased, which would be the best piece of evidence to show the annual income of the deceased. But, for reasons known only to her, appellant did not take such steps. So, I do not wish to take into consideration the oral evidence relating to the salary of the deceased. Since the income of a cleaner would be less than the salary of a driver, the contention of the appellant that the deceased was drawing more than Rs. 1,500/- p. m. cannot be believed o r accepted because Ex. A1, relied on by the appellant shows that the driver of the lorry in which the deceased was a cleaner was drawing Rs. 900/- per month. ( 5 ) THE fact that the deceased was aged about 20 years is evident from Ex. A4 the post mortem certificate of the deceased. But in my considered opinion, the age of the deceased is not so relevant for fixing the multiplier because, the only claimant in this case is the mother of the deceased and so it is her age that is relevant for fixing the multiplier. But appellant did not adduce evidence with regard to her age, since she herself described as a person aged 50 years in the claim petition, it can be taken that appellant was aged about 50 years by the date of death of the deceased in the accident. ( 6 ) IN column 1-b of Ex. A3, (Inquest Panchnama) Yedukondalu is described as the elder brother of the deceased. So it is clear that apart from the deceased, the appellant has one more son.
( 6 ) IN column 1-b of Ex. A3, (Inquest Panchnama) Yedukondalu is described as the elder brother of the deceased. So it is clear that apart from the deceased, the appellant has one more son. Since the deceased was unmarried, though he might be contributing more amount to the appellant at the time of his death, had he been alive, he would have got married and begotten children and so, he would not be contributing the same amount which he was contributing to the appellant at the time of his death in future and since the deceased has an elder brother, who also has a duty to maintain the appellant, I am unable to accept the contention of the learned counsel for the appellant that had the deceased been alive, he would become a driver and earned higher salary and would have contributed more amount to the appellant and that fact was not taken into consideration by the tribunal. It is well known that when a person gets married and begets children, he would spend most of his income for the maintenance of his wife and children only, and would not take the same amount of care as he used to take of his parents when he was unmarried. So even assuming that the salary of the driver mentioned in Ex. A1 does not include the batta, the contribution of the deceased to the appellant, on an average, can be taken as Rs. 500/- p. m. or Rs. 6,000/- p. a. ( 7 ) I am unable to agree with the contention of the learned counsel for the second resondent that the Tribunal was in error in fixing 11 as multiplier. If schedule II of the Motor Vehicles Act, 1988 is applied, it the age of the victim that is relevant and so the multiplier would be 16. If multiplier in BHAGAVAN das Vs. MOHD. ARIF, is applied for a person aged about 50, 8 would be the multiplier. Since the ages of the appellant and the deceased are approximate ages, the Tribunal taking the multiplier at 11 cannot be said to be erroneous. Therefore, the pecuniary damages payable to the appellant come to Rs. 6,000/-x 11 = Rs. 66,000/ -. ( 8 ) IN Y. VARALAKSHMI Vs. M. NAGESWARRAO, it is held that in every case of a fatal accident, a minimum compensation of Rs.
Therefore, the pecuniary damages payable to the appellant come to Rs. 6,000/-x 11 = Rs. 66,000/ -. ( 8 ) IN Y. VARALAKSHMI Vs. M. NAGESWARRAO, it is held that in every case of a fatal accident, a minimum compensation of Rs. 15,000/- should be awarded to the claimant towards non pecuniary damages. In the facts and circumstances of the case, keeping in view of the fact that the accident occurred in 1996, the non pecuniary damages can be fixed at Rs. 24,000/ -. ( 9 ) THEREFORE, the appellant is entitled to Rs. 66,000/- + Rs. 24,000/- = rs. 90,000/- as compensation for the death of the deceased. ( 10 ) IN my considered opinion, SANTHI BAI CASE (1 supra) is of no help to the appellant. In the facts and circumstances of that case, their Lordships felt that the claimant in that case is entitled to Rs. 1,50,000/. That decision cannot be taken as having laid down a law that in every fatal accident involving a labourer a minimum compensation of Rs. 1,50,000/- should be awarded. Therefore, on the basis that the claimant in that case was awarded Rs. 1,50,00/- appellant is not entitled to Rs. 1,50,000/-as compensation. ( 11 ) IN the result, the appeal is allowed in part and an award is passed for rs. 90,000/- in favour of appellant, against respondents 1 and 2 jointly and severally with interest at 12% p. a. on Rs. 52,800/- from the date of petition, till the date of deposit into Court and with interest at 9% p. a. on the enhanced compensation of Rs. 37,200/- from the date of award of the Tribunal i. e. 04-11-1999, till date of deposit into Court with proportionate costs in the tribunal. Parties shall bear their own costs in this appeal. When the revision petitioner, who is the plaintiff in O. S. No. 82 of 1999 on the file of the Senior Civil Judge at Nagar, Kurnool, wanted to examine her General power of Attorney as a witness on her behalf, an objection was taken by the respondents, who are the defendants in the suit, that general power of attorney cannot give evidence on behalf of the plaintiff/revision petitioner.
By the order under revision, on the basis of the said objection, the trial Court held that general power of attorney holder can appear as a witness only in his personal capacity but cannot appear as witness on behalf of the plaintiff, in the capacity of the plaintiff. The order under revision cannot be said to be erroneous because the power of attorney can speak about the facts which are within his personal knowledge. Since, the power of attorney is not a substitute for a party, he cannot speak about the facts which are exclusively within the knowledge of the party concerned who is his "principal". In respect of the facts within his or her personal knowledge it is the concerned party i. e. "the principal" that can be speak. In respect of such matters the evidence of the general power of attorney of the party, would be hearsay and so is not admissible in evidence. A general power of attorney of such party, merely because of such power would not become a substitute to the party and so he is in competent to depose about the facts which are within the exclusive personal knowledge of the party. Therefore, the trial court holding that a power of attorney is not a substitutive for his principal, and cannot speak about the facts which are within the personal knowledge of the party, needs no interference. With the above observation, the revision petition is disposed of. No costs.