ORIENTAL INSURANCE CO LTD Vs. KANDREGULA NAGAMANI

JUDGEMENT

(1.) The appeal is filed against the judgment dated 23.8.2004 in MOP No.850 of 2000 on the file of the Motor Accident Claims Tribunal-cum-I Additional District Judge, Visakhaptnam.

(2.) A claim for compensation of Rs.5,00,000/- was made consequent on the death of the deceased Narasingarao in a motor accident. The claim of the petitioners is that the deceased was working as a Kalasi in Steel Plant drawing a salary of Rs.6,939/- and on 14.6.1998 at about 10.00 a.m. when the deceased was returning on the scooter to Simhachalam, one car bearing No.MH 13A 1036 driven by the 1st respondent in a rash and negligent manner and dashed against the scooter, as a result of which the deceased received multiple injuries and died. The petitioners are the dependants on him.

(3.) It is now fairly well settled that the claimants, who want to claim compensation under the M.V. Act have to choose either the claim is one under Section 166 of the M.V. Act or one under Section 163-A of the M.V. Act. There cannot be any choice to have an alternative plea of consideration of claim of compensation. If the compensation cannot be granted under Section 166 of the M.V. Act, it should be under Section 163-A of the M.V. Act. In this case, the facts are very clear and the findings of the lower Tribunal are also very clear to the effect that the incident was due to the ault of the deceased. If that being so, invoking the provisions under Section 163-A of the M.V. Act and fastening the liability on the appellant with whom the car was insured, is not valid. Section 163-A of the M.V. Act can be invoked where if a specific claim is made and if the income of the deceased is less than Rs.40,000/- and the structural formula can be applied. But, it is a case where the fact that the deceased was aged about 37 years and that he was working as a Kalasi in the Steel Plaint, is admitted. The petitioners themselves claimed that the deceased was drawing a salary of Rs.6,939/- showing that the annual income of the deceased was Rs.84,000/-. If that being so, the reason given by the lower Tribunal to discard Ex.A6 salary certificate has being not proved, is not correct when it is not seriously disputed by the insurance company. The salary certificate Ex.A6 clearly goes to show that a sum of Rs.7, 413.60 ps. was the gross salary of the deceased for the month of February, 1998. If the take home salary is only Rs.2,794.53 ps. that cannot be taken into consideration. Therefore, when a document is not disputed by the other side and the claimants themselves relied on a particular salary, the lower Tribunal should not have ignored the employment and the salary drawn by him and should not have determined the income of the deceased on a hypothetical basis as Rs.2,750/- without any basis. If while coming to such hypothetical conclusion, the lower Tribunal should have noted as to whether the income is fixed as an employee of the Steel Plant or a non-employee of the Steel Plant. The fact that the deceased was an employee of the Steel Plant is not disbelieved by the lower Tribunal.