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2006 DIGILAW 1603 (AP)

Mangali Venkatesh v. Shaik Mastan

2006-12-20

C.Y.SOMAYAJULU

body2006
ORDER :-Appellant who is the son of M Laxmamma (the deceased) who died while travelling in a car due to an accident said to have been caused by a lorry belonging to the first respondent and insured with the second respondent, filed a claim petition under Section 166 of Motor Vehicles Act, 1988 (the Act) seeking compensation of Rs.4,00,000/- from the respondents on the ground the deceased aged about 45 years was earning Rs.6,323/- per month. First respondent chose to remain ex parte. Second respondent filed its counter putting the appellant to proof of the averments in the petition. The claim petition filed by the appellant and some other claim petitions filed by some other legal representatives of the victims of the same accident were clubbed and common evidence was recorded. 2. In support of the case of the f claimants in all the claim petitions, two witnesses were examined as P.Ws.1 and 2 and Exs.A.1 to A.10 were marked. No oral evidence was adduced by the second respondent but EX.B.1 was marked by consent on his behalf. The Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the lorry belonging to the first respondent and awarded Rs.2,40,000/- as compensation to the appellant. Dissatisfied with the compensation awarded to him, the claimant preferred this appeal. 3. Though from the facts and circumstances of the case, since the accident seems to have occurred on a 60 wide road due to a head on collision between the car in which the deceased was travelling and the lorry belonging to the first respondent, the possibility of the accident occurring due to the negligent driving of the car, does not seem to have taken into consideration by the Tribunal, I do not wish to interfere with the finding recorded by the Tribunal as to how the accident took place because the second respondent did not think it fit to file an appeal after obtaining permission under Section 170 of the Act. 4. So, the only point for consideration is to what compensation is the appellant entitled to? 5. The contention of the learned Counsel for appellant is that since the deceased was aged 45 years only the Tribunal was in error in adopting 5 as the multiplier. 4. So, the only point for consideration is to what compensation is the appellant entitled to? 5. The contention of the learned Counsel for appellant is that since the deceased was aged 45 years only the Tribunal was in error in adopting 5 as the multiplier. It is his contention that since the date of birth of the deceased as per EX.A.I. was 7-5-1951 it is clear that she was aged 47 years at the time of her death and so the Tribunal ought to have fixed the multiplier of 15 as per Schedule II to the Act, or at least 10 as per Bhagawan Das v. Mohd. Arif, 1987 (2) ALT 137 . It is also his contention that the Tribunal was in error in not awarding any damages towards non-pecuniary damages. The contention of the learned Counsel for the second respondent is that the Tribunal was in error in fixing the contribution of the deceased to the appellant on the basis of her earnings without keeping in view the fact that the appellant who is a man aged 23 years is capable of maintaining himself and cannot be said to be a dependant on the deceased, and also the fact that a major portion of the earnings of the deceased would go for maintenance of herself and her husband, who also died in the accident, and so it cannot be said that the compensation fixed by the Tribunal is not just and reasonable. 6. As per the charge-sheet, the mother, father, wife and child of the appellant died in the accident. So, it is clear that the appellant, a married man, cannot be said to be dependent on the earnings of the deceased. The Tribunal on the basis that EX.A.2 salary certificate of the deceased, issued by Dr. Reddy Laboratories which shows her gross salary as Rs.6,323/-, took her contribution to the appellant as Rs.4,000/- p.m. The contention of the learned Counsel for the second respondent is that since no body is examined to prove the Ex.A.2, the Tribunal was in error in taking into consideration the salary mentioned in EX.A.2 and also erred in taking the gross salary being drawn by the deceased for fixing her contribution to the appellant. 7. 7. Though nobody from the office of employer of the deceased is examined to prove Exs.A.1 and A.2, since the evidence of P.W.1 that the deceased was an employee in Dr. Reddy Laboratories, is not denied and disputed, it can be taken that the deceased was employed as a sweeper in Dr. Reddy Laboratories. EX.A.2 shows that the gross earnings of the deceased were Rs.6,323/- per month and her take home salary was Rs.3,939/- per month. Since the actual contribution of deceased to the members of her family and for herself can only be from out of her take home salary, but not from her gross salary, for arriving at the amount that was being contributed by the deceased to the appellant or other family members her actual take home salary, but not the gross salary, would be relevant. Deductions made from the gross salary as seen from EX.A2 are towards Employees Provident Fund, E.S.I. contribution, Provident Fund, L.I.C., bus, canteen, repayment towards loan etc. Amounts deducted for payment of L.I.C. premium, Employees Provident Fund etc., ultimately may benefit the members of the family of the deceased, but those deductions and other deductions cannot in any way go for the immediate benefit of the family members of the deceased. So the take home salary of the deceased only would be relevant to find out her contribution to the members of her family. So, I find force in the contention of the learned Counsel for the second respondent that the Tribunal was in error in taking the gross salary of the deceased into consideration for arriving at the contribution of the deceased to the appellant. 8. The contention of the learned Counsel for the appellant is that since the take home salary of the deceased is nearly Rs.4,000/- per month, even assuming that 1/3rd was being spent by her for her personal expenses, remaining 2/3rd of Rs.4,000/- per month, would be the contribution of the deceased to the appellant and so, by applying the appropriate multiplier, the appellant is entitled to the compensation claimed by him. 9. I am not able to agree with the above contention of the learned Counsel for the appellant. As stated earlier, unfortunately, the deceased and her husband died together in the accident. 9. I am not able to agree with the above contention of the learned Counsel for the appellant. As stated earlier, unfortunately, the deceased and her husband died together in the accident. Had she been alive, the deceased would have spent her income for herself and her husband and would not be contributing the 2/3rd amount of her salary for the maintenance of the appellant, who is her married son. Therefore, even assuming that the deceased was contributing some amount to the appellant for his maintenance, in my considered opinion, the contribution of the deceased to the appellant could not have been more than Rs.1,000/-per month. 10. Here, the contention of the learned Counsel for the appellant is that since the Tribunal fixed the contribution of the deceased at Rs.4,000/- per month, that finding as having become final, cannot be disturbed in this appeal preferred by the appellant. I am also not able to agree with the said contention also. In the appeal preferred by the appellant, the quantum of compensation awarded by the Tribunal to the appellant cannot be reduced, but unsustainable findings of the Tribunal can always be corrected in such appeal also. As stated earlier, the Tribunal fixing the contribution of the deceased to the appellant at Rs.4,000/- per se is unsustainable, because she who was taking home Rs.3,900/- only per month could not have contributed more than what she was taking home to the appellant that too in the presence of her husband. Major portion of her earnings would be utilized for her maintenance and for the benefit of her husband, but not entirely to the appellant. 11. Since the average contribution of the deceased to the appellant is taken as Rs.1,000/- per month, her annual contribution to the deceased would be Rs.12,000/- per annum. If the multiplier in Schedule-II is taken, since the deceased was said to be aged 47 years at the time of her death, the multiplier would be "13". Apart from that amount, the appellant also would be entitled to funeral expenses of Rs.2,000/-, and Rs.2,500/- towards loss of estate. Thus, the compensation payable to the appellant in fact comes to less than Rs.2,00,000/-, but the Tribunal awarded Rs.2,40,000/- to the appellant. So, it cannot be said that the compensation awarded by the Tribunal is not just or too law. Thus, the compensation payable to the appellant in fact comes to less than Rs.2,00,000/-, but the Tribunal awarded Rs.2,40,000/- to the appellant. So, it cannot be said that the compensation awarded by the Tribunal is not just or too law. In fact, it is much more than what the appellant is legally entitled to. The point is answered accordingly. 12. In view of my finding on the point for consideration, I find no merits in the appeal and hence, the appeal is dismissed, but in the circumstances, without costs.