G SUGUNAMMA Vs. V KOTESWARA RAO

JUDGEMENT

(1.) These two appeals arise out of the award of the Motor Vehicle Accidents Claims Tribunal, Guntur, in M.V.O.P. No. 319 of 1989 dated 9-8-90. CMA No. 113 of 1991 is filed by the claimants, whereas CMA No. 80 of 1991 is filed by respondent No.2 Insurer, in the proceedings before the Tribunal. The claimants being wife and children of the deceased Yesurathnam, filed claim petition under Section 110-A of the Motor Vehicles Act, 1939 (for short 'the Act'), for recovery of compensation of Rs. 87,500/- from respondent No. 1 owner of tractor-cum-trailer and respondent No. 2 Insurer of the vehicle alleging that the accident occurred due to rash and negligent driving of the vehicle by the driver, which resulted in the fatal injuries to the deceased. The accident occurred on 5-5-1988, whereas the deceased died on 10-5-88. The respondent No. 1 owner of the vehicle remained ex-parte, whereas the respondent No. 2 contested the claim. The Tribunal having held an enquiry into the controversies, came to the conclusion that the accident occurred due to the negligence of the driver of the vehicle involved in the accident, that it was insured with respondent No. 2 at the relevant time, that the claimants are entitled to recover Rs. 30,000/- by way of compensation, and that the respondents are liable to pay the sum to the claimants. The claimant Nos. 1 and 2 died during the pendency of their appeal, and now only claimant No. 3 daughter of the deceased alone is prosecuting the appeal.

(2.) It is the grievance of the claimants- that the amount of compensation awarded by the Tribunal is inadequate. According to them, the deceased being an agricultural labourer, was getting Rs. 30/- per diem and was able to contribute it to the family, including himself. But the Tribunal fixed the income at Rs. 450/- per mensem and deducting Rs. 100/-towards personal expenses took Rs. 350/- towards contribution to the family. The Tribunal by taking 4.27 as the multiplier was not justified having due regard to the age of the deceased at 55 years. It is contended on behalf of the appellants by the learned advocate Mr. N. Subba Rao, that in this case even taking the income of the deceased at Rs. 20/- to Rs.25/- per diem, the multiplicand ought to have been more, and the multiplier should be atleast 10, and that the Tribunal has failed to add reasonable sum towards loss of expectation of life of the deceased and also the incidental expenses for funeral etc., and therefore, the amount of compensation so awarded requires to be enhanced to make it just compensation. The learned Counsel for respondent No. 1, Mr. N.S. Bhaskara Rao contented that when the evidence on record was within the limits of conjectures and surmises, the Tribunal was justified in taking such amount and multiplier into consideration, and the amount so awarded was just and reasonable and requires no interference by this Court in the appeal.

(3.) Mr.K.Subba Rao, the learned advocate for the Insurer contended that although there is clear stipulation in the Insurance Policy, Ex.B-1, that the vehicle was insured to cover the risk only when the vehicle was used for agricultural purposes, and in spite of clear evidence that the deceased was not an employee of the owner of the vehicle and contradicted from the clear allegations made in the claim petition in column No. 5 and also in the body of the petition, the Tribunal without considering the question of liability as it could have been done, fastened the liability on the Insurer. The learned Counsel for the claimants and respondent No. 1 contended that there is no specific plea in the written statement filed by the Insurer about the particular ground on which liability is absolved, and secondly that the evidence bears out the relationship of the deceased and -the owner of the vehicle as master and servant, and the accident having been occurred in the course of the employment, the Insurer cannot avoid the liability by virtue of the terms and conditions of the Insurance Policy, Ex.B-1, and the Tribunal could mulct the Insurer in paying compensation. Having due regard to the nature of the controversies and contentions as stated above in the two appeals, this Court proposes to take up the appeal of the claimants in the first instance to test whether the quantum of compensation awarded by the Tribunal is just, adequate or inadequate. The Tribunal has taken the age of the deceased at 55 years at the time of the accident and death of the deceased, and that finding is not challenged. Ex.A-1, copy of the post-mortem report also confirmed such an age of the deceased. The Tribunal has also found that the deceased was an agricultural labourer and fixed his daily income at Rs. 15/-. There has been the testimony of P.W.I, wife of the deceased and P.W.2, another labourer who was travelling in the vehicle and who was an eye-witness to the accident, that the deceased was getting Rs. 30 / - per diem by way of wages. Without assigning sufficient reasons, the Tribunal reduced it to Rs. 15/-per diem. It is true that such testimony is not supported by documentary evidence nor it is possible to accept it in a case like this. But at the same time, the consistency in the testimony should also be conducive to the realities in the matter. Exaggerations and overstatements by persons interested in the claim, and the rural people who are not used to the technicalities and the consequences of their statements cannot be over-emphasized. Therefore, leaving margin for such exaggeration or interested statements and taking judicial notice of the minimum wages of the labourers and agricultural labourers etc., which cannot be less than Rs. 20/- per diem, the Tribunal could have taken at least Rs. 20/- per diem and Rs. 600/- per mensem towards the income of the deceased in the absence of definite material, but based on oral testimony. Deducting one-third out of that amount, the deceased was capable of contributing at least Rs. 4,000/- per diem (sic. Rs.400/- per mensem) to the family. Thus Rs. 4,800/- being the multiplicand in this case and with the age of the deceased as 55 years, the multiplier ought to have been 9 as per the law settled in General Manager, Kerala S.R. T.C. vs. Susamma Thomas. The loss of dependency in this case ought to have been Rs. 43,200/-. Having due regard to the relationship of the deceased and the claimants, Rs. 10,000/- are awarded towards loss of expectation of life. Now that only the daughter of the deceased is surviving, no amount towards loss of consortium is being added. By adding Rs. 3,000/- towards incidental expenses like funeral, transportation of dead body, and other unaccountable expenses, and Rs. 5,000/- towards pain and suffering of the deceased as he died on 10-5-1988 i.e. after five days of the accident, the total amount of compensation in this case ought to have been Rs. 61,200/-. The award thus requires to be modified by enhancing the compensation. That disposes of the appeal of the claimants C.M.A. No. 113 of 1991.