Ramannagari Narasamma and Others vs M.A. Bari and Others

B. Chandra Kumar, J.—This appeal by the claimants seeking enhancement of compensation challenging the award dated 21.07.2004 passed in O.P. No. 551 of 1999 by the Motor Accident Claims Tribunal-cum-I Additional District Judge, Nizamabad (for short ''the Tribunal'').

The parties hereinafter referred to as arrayed before the Tribunal for the sake of convenience.

The brief facts of the case are as follows:

On 28.12.1998 at about 03.30 AM, the deceased along with one G. Venkat Reddy were proceeding on a scooter. When they were in the limits of Gannaram at about 07.30 AM on NH-7, the offending lorry bearing No. AP-25-T-4645 being driven by its driver in rash and negligent manner at high speed came from their opposite side and dashed against the scooter. The deceased and another person died on the spot. The claimants'' specific case is that the deceased was aged about 35 years and was doing business and also agriculture and earning Rs. 7,000/- per month. The 1st claimant is the wife, the 2nd claimant is the daughter, the 3rd claimant is the minor son and the 4th claimant is the mother of the deceased. The claimants claimed a total compensation of Rs. 5,00,000/-.

The 1st respondent-owner of the vehicle did not contest the matter. The 2nd respondent-Insurance Company contested the matter on various grounds.

The Tribunal framed the following issues:

1) Whether the accident was due to rash and negligent driving of the driver of the lorry bearing No. AP-25-T-4645?

2) Whether the petitioners are entitled for compensation. If so, to what extent and from whom?

3) To what relief?

On behalf of the claimants, the 1st claimant was examined as P.W. 1 and one V. Narayana eye witness was examined as P.W. 2 and Exs. A1 to A4 were marked. None were examined on behalf of the respondents, but Ex. B1 policy was marked.

The Tribunal on appreciation of oral and documentary evidence on record came to the conclusion that the accident occurred due to the negligence of the lorry driver. This finding is not in dispute in this appeal.

On the issue of quantum of compensation, the Tribunal has taken the age of the deceased as 40 years basing on the contents of the post mortem examination report and the income of the deceased at Rs. 2,000/- per month. Thus, assessed the loss of dependency at Rs. 2,56,000/- and by adding an amount of Rs. 10,000/- towards loss of estate, Rs. 15,000/- towards loss of consortium to the 1st claimant and Rs. 5,000/- towards transportation of dead body and funeral expenses. Thus, awarded a total amount of Rs. 2,86,000/-.

The 1st respondent owner of the vehicle died. But, however, learned counsel for the appellants submitted that since neither the owner of the vehicle nor the insurance company have challenged the award passed by the Tribunal and this being an appeal by the claimants seeking only enhancement of compensation and therefore there is no need to serve notice on the owner of the vehicle.

The main submission of the learned counsel for the Insurance Company is that the Tribunal has rightly assessed the income of the deceased, since the claimants have not filed any documentary evidence in support of their claim.

The learned counsel for the claimants has relied on a judgment reported in Meka Chakra Rao Vs. Yelubandi Babu Rao @ Reddemma and others, , a Division Bench of this Court observed that there cannot be any bar to decide the quantum of compensation against the Insurance Company even in the absence of owner of the vehicle to the extent of statutory liability of the Insurance. He has also relied on a judgment reported in Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, . In the said case, the Apex Court was dealing with a case of injured who claimed to be earning Rs. 10,000/- per month by doing vegetable vending. The High Court taken the income at Rs. 3,500/- per month considering that the claimant did not produce any document to establish his loss of income. In the above circumstances, the Apex Court observed as follows "it is difficult for us to convince ourselves as to how a labourer involved in an unorganized sector is expected to produce documents to prove his monthly income. The Tribunal has to assess the evidence adduced in the case instead of assuming and presuming the income of the deceased". In the case between Sri Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Limited, , where it was claimed that the injured was earning Rs. 4,500/- per month working as coolie and where the amount was reduced to Rs. 3,000/- by the Tribunal, the Apex Court observed that there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly income to be Rs. 3,000/- per month. Thus, where a person claims to be working as coolie or in any unorganized sector it is not possible for such person to adduce any documentary evidence in support of their case.

In this case on hand, the claimants have pleaded that the deceased was doing business and also agriculture and earning Rs. 7,000/- per month. On behalf of the claimants, the wife of the deceased was examined as P.W. 1 who categorically deposed that her husband was doing agriculture and business and earning Rs. 7,000/- per month. However, she admitted that she has not filed any document to show that her husband own agriculture lands. She has not filed any document to show that her husband was doing business. Even if it is assumed that the deceased was working as an agricultural coolie, his income would not be less than Rs. 4,000/- per month. The wages earned by labourers, masons, agricultural coolies, minimum wages prescribed by the concerned government, rising prices should be taken as guidelines. The Tribunal should consider whether there is any rebuttal evidence. If the Tribunal wants to disbelieve the evidence of the claimants, the Tribunal must assign valid reasons. The Tribunal should not normally disbelieve the evidence of wife, husband or co-employee of the deceased. The Tribunal can take judicial notice of certain aspects. The finding should be just and reasonable. It is settled law that there should be some addition to the actual income. Having regard to the future prospects and raise in income, I consider just and reasonable to take the income of the deceased at Rs. 6,000/- per month in the light of the guidelines of the Apex Court in Rajesh and Others Vs. Rajbir Singh and Others, . Since the number of dependants are 4, 1/4th has to be deducted towards personal expenses of the deceased as per the judgment in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . Thus, the net loss of earnings would come to Rs. 4,500/- per month. The annual loss of earnings comes to Rs. 54,000/-. The Tribunal has taken the age of the deceased as 40 years basing on the PM report. In inquest report, the age of the deceased was also shown as 40 years. Therefore, I am of the view that the age of the deceased can be taken as 40 years. Therefore, the appropriate multiplier is ''15''. The total loss of dependency comes to Rs. 54,000/- x 15 = Rs. 8,10,000/-. The 1st claimant-wife of the deceased is entitled to a sum of Rs. 1,00,000/- towards loss of consortium. Since there is only minor child, I consider just and reasonable to award an amount of Rs. 50,000/- towards loss of care and guidance for minor children. The claimants are also entitled to a sum of Rs. 25,000/- towards funeral expenses. Thus, the total compensation comes to Rs. 9,85,000/-.

In view of the latest judgment of the Apex Court in Rajesh''s case (Supra), the settled legal position is that irrespective of the claim claimed by the claimants, the Courts have to award just and reasonable compensation.

Accordingly the appeal is allowed awarding a total compensation of Rs. 9,85,000/- with interest @ 9% per annum. Out of the total compensation, the 1st claimant shall take Rs. 3,85,000/-, claimant Nos. 2 and 3 shall take each Rs. 2,50,000/- and the 4th claimant shall take Rs. 1,00,000/-. The claimants have to pay deficit Court fee before drafting decree. No costs.

Miscellaneous Petitions, if any, pending in this appeal shall stand closed.