Jagdevi, Shivaputrappa and Mahadevi vs Kutbuddin and The Divisional Manager Oriental Insurance Co. Ltd.

K.N. Keshavanarayana, J.—Being dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant in MVC No. 669/08 on the file of III Additional Civil Judge (Sr. Dn.) and MACT, Gulbarga, have presented this appeal challenging the legality and correctness of the award dated 26.08.2009. Grievance of the appellants-claimants is that the Tribunal has committed an error in reckoning the monthly income of the deceased at Rs. 3,000/- p.m. though there was cogent and acceptable evidence as to the vocation pursued by the deceased and the income earned by him. It is also their contention that the compensation awarded under the conventional heads is too law and warrants enhancement.

I have heard the learned counsel for the appellants as well as the learned counsel for the respondent-insurer of the offending vehicle.

The occurrence of the accident, and resultant death of the deceased Sharanappa Poojary is not in dispute. The finding recorded by the Tribunal as to the actionable negligence is also not challenged.

According to the claimant, the deceased Sharanappa Poojary husband of the first claimant and son of claimants 2 and 3 was working as Muneem in a Trading company called M/s. Om Shiva Trading Company and was getting a salary of Rs. 6,000/- p.m. To substantiate the contention as to the vocation pursued by the deceased and his salary, the claimant apart from leading oral evidence by examining claimant No. 1-wife of the deceased, also relied on documentary evidence-Ex. P8, a certificate said to have been issued by M/s. Om Shiva Trading Company.

No doubt, PW1 in her oral evidence reiterated the statement made in the claim petition that her husband was earning a sum of Rs. 6,000/- p.m. working as a Muneem in Shiva Om Adath Shop and to show the income of the deceased she produced Ex. P8. In the cross-examination she denied the suggestion that the income as mentioned in Ex. P8 is not correct and that her husband was not earning Rs. 6,000/- p.m.

The oral evidence of PW1 that her husband was drawing a salary of Rs. 6,000/- p.m. while working as a Muneem in Shiva Om Adath Shop is contrary to the documentary evidence produced as Ex. P8. Of course the Tribunal has not placed reliance on Ex. P8 on the ground that the author of the said document has not been examined nor the contents thereof have been substantiated by any other evidence. Nevertheless, the claimants produced Ex. P8 for a specific purpose that the Tribunal should accept it and based on the contents thereof should proceed to quantify the compensation payable. When the claimants have produced a specific document to substantiate the income of the deceased, later it is not open for them to turn around and say that the contents mentioned in the said document are not correct nor they can be permitted to contend that the deceased was earning more amount. Of course, none on behalf of Shiva Om Adath Shop have been examined to prove the correctness of Ex. P8. However, it is to be borne in mind that the claimants being the rustic villagers may not have been in a position to secure the employer of the deceased to give evidence before the Court. From the tenor of cross-examination of PW1, it is noticed that the insurer of the offending vehicle has not disputed the fact that the deceased was working in Shiva Om Adath Shop as asserted by PW1 in her examination-in-chief. The assertion on the part of PW1 that her husband was working in Shiva Om Adath Shop as a Muneem is not challenged in the cross-examination. Therefore, even in the absence of the employer''s evidence, there is no reason to discard the evidence of PW1 that the deceased was working in Shiva Om Adath Shop. Having regard to the fact that the accident in this case has occurred in the year 2008 and regard being had to the cost of living, the salary mentioned in Ex. P8 cannot be termed as excessive as sought to be contended by the insurer. Therefore, in my considered opinion, the Tribunal is not justified in disbelieving Ex. P8. There are no reasons to discard Ex. P8 for the purpose of finding out the monthly income of the deceased.

Learned counsel for the claimants contended that the amount of salary as mentioned in Ex. P8 is not correct, but on the other hand the deceased was being paid Rs. 6,000/- p.m. It is the submission of the learned counsel that having regard to several decisions of this Court and Apex Court it is just and reasonable to take the monthly income of the deceased at Rs. 4,500/- p.m. even if he is treated as an ordinary coolie worker. When the claimants have relied on a documentary evidence for specific performance, as noticed supra, they are estopped from contending that the deceased was earning more. Therefore, I find no substance in the contention of the learned counsel for the appellant that the income of the deceased should be taken at Rs. 4,500/- p.m. On the other hand, the income of the deceased could be safely taken at Rs. 4,000/- p.m. as mentioned in Ex. P8. To this extent, the Tribunal is not justified in reckoning the monthly income of the deceased at Rs. 3,000/- p.m. The Tribunal has rightly deducted 1/3rd of monthly income towards living and personal expenses of the deceased and remaining 2/3rd as monthly loss of dependency. Having regard to the fact that the deceased was aged 24 years, the Tribunal has rightly adopted the multiplier of ''18''. Therefore, the total compensation payable to the appellant-claimants works out to Rs. 5,76,000/- (4,000 x 12 x 18 x 2/3) as against Rs. 4,32,000/- awarded by the Tribunal. The award under the conventional heads, having regard to the facts and circumstances of the case appears to be just and proper and does not warrant any enhancement.

(i) In the result, the appeal is allowed enhancing the compensation payable under the head loss of dependency to Rs. 5,76,000/- as against Rs. 4,32,000/- awarded by the Tribunal.

(ii) The enhanced compensation of Rs. 1,44,000/- shall carry interest at 6% p.a. from the date of petition till the date of payment. The respondent-insurer of the offending vehicle is directed to deposit the enhanced compensation with interest within six weeks from today.

(iii) Out of the enhanced compensation, first claimant being the wife of the deceased is entitled to an extent of 75% with proportionate interest while third claimant being the mother is entitled for remaining 25% with proportionate interest.