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2011 DIGILAW 853 (AP)

Yelidindi Ramalakshmi v. Cheepuri Rambabu

2011-10-11

G.BHAVANI PRASAD

body2011
JUDGMENT G. BHAVANI PRASAD, J. 1. This appeal is directed against the award in M.V.O.P. No. 283 of 2002 on the file of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, East Godavari at Kakinada, dated 19-08-2005. Yelidindi Sathibabu, a mason aged 30 years, was earning Rs.200/- per day with which he was maintaining his wife, minor daughter, minor son and parents totally depending on him. On 07-02-2002, Sathibabu and others were travelling by auto No. AP 5Y 763 and when it reached M.D.O. office, Rangampeta at about 3 p.m., the auto turned turtle due to the rash and negligent driving by its driver. Sathibabu died on the spot due to the injuries and crime No. 7 of 2002 was registered by the police. The driver-cum-owner and the insurer are claimed to be liable to compensate the claimants with Rs.3,00,000/- with interest at 18 per cent per annum. 2. The 1st respondent to the claim resisted the request for compensation alleging the accident to be an act of God due to some buffaloes suddenly coming across the road and when he applied brakes, they failed and the vehicle turned turtle. At any rate, the deceased aged more than 40 years was getting only Rs.30/- per day and the other claimants are earning members. In any view, the insurer has to indemnify the owner by paying the compensation. 3. The insurer contested the claim contending that the compensation claimed is excessive and the claimants have to prove valid driving licence of the driver, valid fitness certificate and permit for the vehicle and other factors including the auto being not overloaded. The insurer, therefore, desired the claim to be negatived. 4. The Tribunal framed issues about the cause of death of Sathibabu and the entitlement of the claimants to compensation. 5. P.Ws. 1 and 2 and R.W. 1 were examined during the enquiry and Exs. A.1 to A.4, B.1 and B.2 were marked. 6. The Tribunal rendered the impugned award firstly accepting the evidence of the eye witness P.W. 2, corroborated by Ex. A.1 first information report and Ex. A.3 inquest report to conclude that the accident occurred due to the rash and negligent driving of the auto. A.1 to A.4, B.1 and B.2 were marked. 6. The Tribunal rendered the impugned award firstly accepting the evidence of the eye witness P.W. 2, corroborated by Ex. A.1 first information report and Ex. A.3 inquest report to conclude that the accident occurred due to the rash and negligent driving of the auto. In assessing the compensation, the Tribunal first accepted that the claimants were dependents on the deceased and took the age of the deceased to be between 30 and 35 years as seen from the inquest report and the post-mortem report. The Tribunal applied multiplier of 17 for the said age of the deceased, but took the notional income of the deceased only at Rs.15,000/- per annum as per the Second Schedule to the Motor Vehicles Act in the absence of any documentary corroboration for the oral claims of P.Ws. 1 and 2. The loss of dependency was worked put by deducting one-third income towards personal expenses of the decease at Rs.1,70,000/- and a further sum of Rs.2,000/- towards funeral expenses and Rs.5,000/- towards loss of consortium were also awarded. The Tribunal further found that as the 1st respondent violated the terms and conditions of the insurance policy by carrying four passengers in the auto and caused the accident, the insurer cannot be held liable for any claim for compensation. Therefore, the Tribunal directed payment of the compensation awarded only by the 1st respondent to the claim with interest at 6 per cent per annum and the Tribunal further directed apportionment and disbursement of the compensation. 7. The claimants filed the present appeal contending that the Tribunal could not have considered the deceased as a non-earning person when there was evidence to show that he was earning Rs.150/- per day as a mason. The claimants complain that loss of consortium, funeral expenses, mental agony, pain and suffering and other heads of damages were not appropriately considered and therefore, they desired the total compensation claimed to be awarded. 8. Heard Sri T.N.M. Ranga Rao, learned counsel for the appellants and Sri Nisaruddin Ahmed Jeddy, learned standing counsel for the 2nd respondent-insurer. The 1st respondent was served with notice of M.A.C. M.A. M.P. No. 626 of 2006, but none entered appearance on his behalf before this Court. 9. 8. Heard Sri T.N.M. Ranga Rao, learned counsel for the appellants and Sri Nisaruddin Ahmed Jeddy, learned standing counsel for the 2nd respondent-insurer. The 1st respondent was served with notice of M.A.C. M.A. M.P. No. 626 of 2006, but none entered appearance on his behalf before this Court. 9. The appellants did not challenge the conclusion of the Tribunal about the non-liability of the insurer to pay any compensation due to violation of the terms and conditions of the policy by the insured and this finding having become final in the absence of any challenge, the consideration herein is confined to the just and adequate compensation, which the 1st respondent has to pay to the claimants. 10. When the claimants claimed since inception that the deceased was a mason, the Tribunal could not have presumed him to be an unemployed or a non-earning person. At the age of 30 years and being otherwise hale and healthy prior to the accident, the deceased would have, undoubtedly, engaged himself in some decent avocation to maintain himself, his wife, two minor children and his aged parents and would not have remained idle. The claim of the claimants that he was earning Rs.200/- per day or Rs.150/- per day may be a natural exaggeration to claim higher compensation. But the Tribunal should have taken into account at least the minimum wages payable under the relevant statute to a mason or a skilled labourer or an unskilled labourer as the basis for estimating the income of the deceased. When the deceased was not a non-earning person, taking the Second Schedule to the Motor Vehicles Act into account in assessing the notional income at Rs.15,000/- per annum cannot be considered just or legal under the circumstances. The evidence of P.W. 1 about her husband earning Rs.150/- per day, which was corroborated by P.W. 2, remained uncontroverted by any evidence for the respondents and P.W. 2, in fact, is also a mason whose occupation or acquaintance with the deceased could not have been doubted in the absence of any contrary material. The evidence of P.W. 1 about her husband earning Rs.150/- per day, which was corroborated by P.W. 2, remained uncontroverted by any evidence for the respondents and P.W. 2, in fact, is also a mason whose occupation or acquaintance with the deceased could not have been doubted in the absence of any contrary material. The minimum wages payable to masons under different disciplines at about the relevant time appears to be varied under the Minimum Wages Act between Rs.3,500/- and Rs.4,500/- including the variable dearness allowance and therefore, the monthly income of the deceased can be assessed at about Rs.4,000/-, in which estimate an element of guess is, of course, inevitable. As there are five dependents on the deceased, the deduction towards personal expenses should only be one-fourth as per Sarla Verma v. Delhi Transport Corporation (1) 2009 (4) SCJ 91 : 2010 (1) An. W.R. 141 (SC) : 2009 ACJ 1298 and if so, on the balance of Rs.3,000/- per month or Rs.36,000/- per annum, the appropriate multiplier applicable to a person at the age of 35 years is 16 and the loss of dependency comes to Rs.5,76,000/- and the claimant should also be entitled to Rs.5,000/- each towards loss of estate and funeral expenses and Rs.10,000/- towards loss of consortium as per Sarla Verma v. Delhi Transport Corporation (1 supra). However, the claimants claimed before the Tribunal and in this appeal a compensation of only Rs.3,00,000/- with appropriate interest and therefore, the enhancement can be confined to a total sum of Rs.3,00,000/-. In view of the length of time for which interest has to be paid on the said sum of Rs.3,00,000/- since 2002 the date of the petition up to the date of payment, the interest can be granted at the same rate as granted by the Tribunal at 6 per cent per annum. In view of the length of time for which interest has to be paid on the said sum of Rs.3,00,000/- since 2002 the date of the petition up to the date of payment, the interest can be granted at the same rate as granted by the Tribunal at 6 per cent per annum. In the result, the award, dated 19-08-2005 in M.V.O.P. No. 283 of 2002 on the file of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, East Godavari at Kakinada is modified by awarding a total compensation of Rs.3,00,000/- (Rupees three lakhs only) with costs and with interest thereon at 6 per cent per annum from the date of the petition till the date of realization against the 1st respondent to the claim only and the said compensation shall be apportioned in the same proportion in which the original compensation was directed to be apportioned by the impugned award. No further directions need be given regarding disbursement of the compensation at this distance of time. The civil miscellaneous appeal is allowed accordingly without costs.