Laxmidevi vs Divisional Manager

Aravind Kumar, J.

1.Claimants'' appeal for enhancement of compensation not being satisfied with the judgment and award dated 31.10.2012 passed by the MACT and District & Sessions Court, Koppal, in M.V.C. No. 361/2011.

By consent of learned advocates, appeal is taken up for final disposal.

Heard learned advocates appearing for the parties. Perused the judgment and award in question as also the certified copies of the exhibits marked before the Tribunal which was made available by Sri Chandrashekhar P. Patil, learned advocate appearing for the claimants-appellants.

It is the contention of Sri Chandrashekhar P. Patil, learned counsel appearing for the claimants that he would not press his ground insofar as contributory negligence apportioned by the Tribunal but would seek for enhancement of compensation on the ground that the Tribunal committed an error in considering the income of the deceased at Rs. 6,500/- instead of Rs. 12,000/- per month since on the date of the accident, deceased was earning Rs. 200/- per day as batta apart from Rs. 6,000/- of salary i.e., his total earning was Rs. 12,000/- p.m. He would also submit that the compensation awarded by the Tribunal under the conventional heads is on the lower side. Hence, he seeks for enhancement of compensation.

Per contra, Sri Nagaraj C. Kolloori, learned counsel appearing for the Insurer would support the judgment and award and prays for dismissal of the appeal.

Having heard learned advocates appearing for the parties and on perusal of the judgment and award in question, it would indicate that the accident in question, issuance of policy to the offending vehicle and the death of Sri Venkatesh @ Venkateshalu in the said accident are facts which are not in dispute. Hence, they are not delved upon in this appeal, as it would be repetition of facts.

Tribunal while awarding compensation towards loss of dependency has construed the income of the deceased at Rs. 6,500/-. It is not in dispute that deceased Venkatesh was driver of the tipper lorry which was traveling from one place to another place and it is in vogue and practice that drivers of such vehicles are being paid batta every day to cover their expenses for food and beverages. The said income of Rs. 6,500/- p.m. has been arrived at by the Tribunal after adding 30% i.e., Rs. 1,500/- towards future prospects. In view of the law laid down by the Apex Court in Reshma Kumari and Others Vs. Madan Mohan and Another, , question of adding 30% towards future prospects in respect of those persons who are working in unorganized sectors does not arise. It has been held by Apex Court that standardization of addition to income of deceased for future prospects would be permissible where the deceased had a permanent job and if it is not proved by tendering evidence with regard to actual income of the deceased. It has also been held that in case where the deceased was self-employed or was on a fixed salary without provision for annual increment, the actual income at the time of death without any addition to the income for future prospects is appropriate. In the words of the Apex Court it has been held as under:

The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50 percent of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30 per cent if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases.

In the instant case, there is no evidence tendered to show that deceased had a permanent job and as such in that view of the matter, addition of 30% to the income of the driver cannot be considered. However, this Court cannot loose sight of the fact that deceased was driver of tipper lorry and he would necessarily be paid batta every day by its owner and no proof can be sought in this regard and as such, I am of the considered view that income of Rs. 6,500/- construed by the Tribunal to determine the loss of dependency to the claimants cannot be found fault with. Accordingly, the income taken into consideration by the Tribunal at Rs. 6,500/- is to be held as just and reasonable though for different reasons assigned herein above.

Now turning my attention to the compensation awarded by the Tribunal under the conventional heads, award in question would indicate that Tribunal has awarded a sum of Rs. 30,000/-. Undisputedly, the deceased had five minor children who were aged 4 years to 14 years. The love and affection that is now lost to the minor children and especially to claimants 4, 5 and 6 being immeasurable, additional compensation of Rs. 50,000/- if awarded it would meet the ends of justice. Accordingly, it is hereby awarded and the compensation awarded by the Tribunal under all other heads stands affirmed.

Hence, the following:

ORDER

i) Appeal is hereby allowed in part,

ii) Judgment and award passed in M.V.C. No. 361/20.11 is hereby modified and an additional compensation of Rs. 50,000/- is hereby awarded which shall carry interest at the rate of 6% p.a. from the date of claim petition till date of payment or deposit whichever is earlier,

iii) In all other aspects, award passed by the Tribunal stands affirmed.

iv) No order as to costs.

v) Insurer is directed to deposit the additional compensation amount to the extent apportioned by the Tribunal on the Insurer with interest before the jurisdictional Tribunal within four weeks from the date of receipt of certified copy of this order.