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2018 DIGILAW 62 (AP)

Patnam Parvatamma v. Balraju

2018-01-29

G.SHYAM PRASAD

body2018
JUDGMENT: This appeal is arising out of the order and decree dated 26.05.2010 passed in O.P.No.344 of 2002 by the Motor Accidents Claims Tribunal (I Additional District Judge), at Mahabubnagar. 2. This is a case of death of Patnam Krishnaiah, a labour mistri (mason), in a motor vehicle accident that occurred on 13.08.2001 while he was travelling in an Ambassador Car bearing No.AP-28T-9591, along with his friend, to go to Kurnool on personal work. The deceased was resting his head on the left side door and was in sleep when the car was in motion, and as the car door was not properly locked, it got opened suddenly, thereby, the deceased fell down from the moving car and sustained grievous injuries and died on the spot. His wife and major daughters/petitioners 1 to 5 have filed a claim petition, O.P.No.344 of 2002, under Section 163 of the Motor Vehicles Act, 1988, before the Motor Accidents Claims Tribunal (I Additional District Judge), at Mahabubnagar, claiming compensation of Rs.4,00,000/- on account of his death in the accident. The Tribunal, on considering the evidence, has awarded compensation of Rs.2,90,000/- with interest at 7.5% per annum, under various Heads, against respondents 1 and 2, the owner and insurer of the crime vehicle. Having been dissatisfied with the Award passed by the Tribunal, the claimants have preferred this appeal for enhancement of compensation. 3. Heard the arguments of learned Counsel Sri Mohd. Yousuf appearing for the appellants-claimants, and the learned Standing Counsel Sri Sriman, appearing for the respondent-insurance company. 4. The point that arises for consideration is whether the appellants are entitled for enhancement of compensation. 5. Learned counsel for the appellants contended that the deceased was working as a labour maistry (mason) and was earning Rs.5,000/- per month, but the Tribunal has taken the notional income of the deceased as Rs.2,400/- per month. It is also contended that the Tribunal has incorrectly taken the age of the deceased as 45 years and applied multiplier 13; whereas as per the Post-Mortem Examination report (Ex.A3), the deceased was 35 to 40 years old, and, therefore, multiplier 15 is applicable as per Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 . 6. It is also contended that the Tribunal has incorrectly taken the age of the deceased as 45 years and applied multiplier 13; whereas as per the Post-Mortem Examination report (Ex.A3), the deceased was 35 to 40 years old, and, therefore, multiplier 15 is applicable as per Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 . 6. The Tribunal, placing reliance on the evidence of PWs.1 and 2, and documents Ex.A1-C.C. of FIR, Ex.A2-C.C. of Inquest Report, Ex.A3-C.C. of PME report, and Ex.A4-Charge sheet, came to the conclusion that the deceased died due to the injuries received in the accident; and since the claim petition was filed under Section 163A of the Motor Vehicles Act, 1988, the rash and negligent act on the part of the driver of the crime vehicle need not be proved, and, therefore, awarded compensation of Rs.2,90,000/- with interest at 7.5% per annum and proportionate costs, from the date of petition till realisation. 7. It is pertinent to note that the burden is on the appellants to prove their contention that the deceased was earning Rs.5,000/- by working as labour maistry. The petitioner No.1, wife of the deceased, got examined herself as PW1 and deposed with regard to the profession of the deceased; and also got examined one Thota Krishnaiah, as PW2, to prove the accident. Though as per Ex.A3-Post-Mortem Examination report, the deceased was around 35-40 years of age, however, the Tribunal has taken the age of the deceased as 45 years for the reason that one of the daughters of the deceased was 23 years old by the date of death of deceased. The reasoning given by the Tribunal in not believing that the deceased was 35 years old by the date of accident, is proper and justified, because it is highly improbable for a person of 35 years of age to have a daughter of 23 years of age, unless he begets a child at the age of 12 years. Therefore, there is no need to interfere with the findings of the Tribunal with regard to assessing the age of the deceased as 45 years by the date of accident. 8. The other contention of the learned counsel for the appellants is that though the deceased was earning Rs.5,000/- per month by working as labour maistry (mason), the Tribunal has taken the income of the deceased as Rs.2,400/- per month. 8. The other contention of the learned counsel for the appellants is that though the deceased was earning Rs.5,000/- per month by working as labour maistry (mason), the Tribunal has taken the income of the deceased as Rs.2,400/- per month. It is pertinent to note that though it is the contention of the claimants in the claim petition that the deceased was earning Rs.5,000/- per month by working as labour maistry, no documentary proof was produced to that effect and, therefore, the Tribunal has made an assessment with regard to the income of the deceased as Rs.2,400/- per month, by taking the daily wage of the deceased at the rate of Rs.100/- per day, as a labourer, and, considering that he worked for only 24 days in a month, assuming that the remaining days were festivals, holidays and that he might have also suffered ill health. 9. The assessment made by the Tribunal with regard to the monthly income of the deceased is not correct inasmuch as it may not be possible to guess as to the number of days in a month a person has actually worked and, therefore, the assessment of the Tribunal that the deceased must have worked for 24 days, for, the remaining days are festivals, holidays or that the deceased might have suffered ill health, is not based on proper inference or reasoning. In the case of a person working as an unskilled labourer in an unorganised sector, keeping in view the ratio laid down by the Honble Supreme Court in Ramesh Singh v. Satbir Singh, MANU/SC/7089/2008, New India Assurance Company Ltd. v. Smt. Shanti Pathak, MANU/SC/7776/2007, Oriental Insurance Co. Ltd. v. Syed Ibrahim, MANU/SC/7915/2007, New India Assurance Co. Ltd., v. Kalpana (Smt), (2007) 3 SCC 538 , a decision of High Court of Karnataka at Bangalore in Sri Appayachari v. K. Vadivel, MANU/KA/3721/2013 and the New India Assurance Company Ltd., rep. by its Manager and a decision of High Court of Calcutta in United India Insurance Co. Ltd. v. Shri Buro Mahara, MANU/WB/0139/2015, the Courts are generally taking the notional income as Rs.3,000/- per month for the purpose of calculation of compensation. In the instant case, it is not in dispute that the deceased was working as labour maistry. Though it is the evidence of PW1 that the deceased was earning Rs.5,000/- per month, there is no documentary proof to that effect. In the instant case, it is not in dispute that the deceased was working as labour maistry. Though it is the evidence of PW1 that the deceased was earning Rs.5,000/- per month, there is no documentary proof to that effect. Keeping in view the ratio laid down by the Apex Court in the aforesaid decisions in Ramesh Singh, and taking into consideration that the deceased was a labour maistry (mason), his monthly income can be safely assumed to be higher than that of an unskilled labourer working in an unorganised sector and, therefore, it would meet the ends of justice if the notional income of the deceased is taken into consideration as Rs.4,000/- per month for the purpose of calculation of compensation. 10. The deceased had five dependents by the date of accident and, therefore, a deduction of 1/5th has to be made towards his personal expenses. Therefore, after deducting 1/5th from the salary, the monthly contribution of the deceased would come to Rs.3,200/-. Further, as the deceased was 45 years old by the date of accident, the multiplier applicable as per Sarla Verma would be 14. Therefore, the compensation towards the loss of dependency would come to Rs.3,200/- x 12 x 14 = Rs.5,37,600/-. The Tribunal awarded Rs.2,000/- towards funeral expenses, Rs.2,500/- towards loss of estate and Rs.5,000/- towards loss of consortium, and the said amounts do not require any interference. 11. IN THE RESULT, the appeal is allowed, by awarding compensation of Rs.5,47,100/- with interest at 7.5% per annum from the date of petition till realisation. The respondents are directed to deposit the amount of compensation within one month from the date of receipt of a copy of this order. The appellants are directed to pay the Court fee for the compensation awarded over and above the compensation claimed in the original petition. No costs. Miscellaneous petitions, if any pending, shall stand closed.