Partly allowed

Oriental Insu.Co.Ltd Nizamabad v. D.Laxmi and 4 Ors.

Telangana HC16 Aug 2012CMA/3229/2003

Case brief

AI extract

What is this about?

This court allowed the insurance company's appeals in part, quashing the lower Tribunal's compensation awards as excessively high due to guesswork regarding income. The court remanded the matter to fix compensation at Rs.2,24,500 for one case and Rs.1,16,500 for another, based on minimum unskilled labour rates.

What did the court decide?

Compensation in C.M.A. No.3229 of 2003 fixed at Rs.2,24,500/- and in C.M.A. No.665 of 2004 fixed at Rs.1,16,500/-; interest at lower Tribunal's rate.

Oriental Insu.Co.Ltd Nizamabad Vs D.Laxmi and 4 Ors. — Motor Accident Claims | Telangana HC (2012)

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HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

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C.M.A.Nos.3229 of 2003 and 665 of 2004

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COMMON JUDGMENT:

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These appeals are by the insurance company. Dependants of the deceased who died in motor vehicle accident filed claims before the lower Tribunal and the lower Tribunal awarded compensation of Rs.5,76, 500/- and Rs.4,97,500/- to the claimants respectively in both the cases. According to the claimants, the deceased died in accident involving vehicle bearing No.ABK 7788. According to the claimants in C.M.A.No.3229 of 2003, the deceased was working as motor mechanic and was also holding agricultural land of Ac.2.11 ½ guntas. The lower Tribunal came to the conclusion that the deceased therein was earning Rs.4,000/- per month and on that basis, determined the compensation therein.

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2. In C.M.A.No.665 of 2004, the claimants claimed that the deceased was doing milk business and was also holding agricultural land of Ac.0.39 ½ guntas. The lower Tribunal came to the conclusion that the deceased therein

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was getting income of Rs.3,750/- per month and determined the compensation payable. Apart from pecuniary compensation, the lower Tribunal awarded Rs.15,000/under the head of loss of estate and Rs.2,500/- towards funeral expenses in both the matters. In the claim relating to C.M.A.No.3229 of 2003, the lower Tribunal awarded further amount of Rs.15,000/- towards loss of consortium.

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3. Two points are urged by the appellant’s counsel in these appeals namely that it is a case of hit and run and not an accident involving vehicle bearing No.ABK 7788 and that the incomes arrived at for the deceased by the lower Tribunal are highly exaggerated and untenable.

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4. There is o dispute that originally Crime No.143 of 1998 of Dichpally Police Station relating to the accident was booked against unknown vehicle driver. At the time of F.I.R., neither identity of vehicle was known nor identity of the driver. Even during inquest, the conclusion was that the deceased died in a motor vehicle accident involving unidentified vehicle. It is contended by the respondents’ counsel that subsequently during investigation, the Investigating Officer came to the conclusion that it was the

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vehicle bearing No.ABK 7788 that was involved in this accident and that when the Investigating Officer was making enquiries, the driver along with his owner came to the police station and surrendered before the police and that ultimately the police filed charge sheet against the said driver of the vehicle bearing No.ABK 7788. Apart from marking copies of F.I.R. and charge sheet, the claimants examined cleaner of the vehicle as PW.2 in both the claims. It is evidence of PW.2 that their vehicle was involved in the accident and that due to fear, they took away the vehicle and that after owner of the vehicle came to the Station, they came and surrendered before the police. There is no contra evidence on behalf of the insurance company on this aspect. Therefore, this Court finds that the lower Tribunal came to the right conclusion that vehicle bearing No.ABK 7788 and its driver were responsible for the accident resulting in death of both the deceased.

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5. Insofar as the avocation and income of the deceased are concerned, both the sets of claimants filed copies of pattadar pass books standing in the names of the respective deceased. The deceased in C.M.A.No.3229 of 2003 was holding dry land of Ac.2.11 ½ guntas in

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Dhammannapet of Dharpally Mandal, whereas the deceased in C.M.A.No.665 of 2004 was holding Ac.0.39 ½ guntas of land in the same village. Though, both the deceased were stated to be working as motor mechanic and milk vendor respectively, there is no evidence for the same, except evidence of PW.1 which is disputed. There is no Panchayat license for their alleged businesses. There cannot be any guess work with regard to the avocations of the deceased though guess work may be permissible to some extent with regard to income in case the avocation is proved. The lands of both the deceased who are scheduled tribals are located in Dhammannapet Thanda. The total amount of tax payable on Ac.2.11 ½ guntas was Rs.7.45 ps; and for Ac.0.39 ½ guntas was Rs.3.70ps. Details of cultivation in those lands and yield from those lands every year preceding death of the deceased are not before the Tribunal. In the absence of such evidence before the Tribunal, the Tribunal was too generous in fixing income of the deceased at Rs.4,000/- and Rs.3,750/- per month during the year 1998 when the accident took place. In those circumstances, guess work of income of the deceased has to be undertaken by the Tribunal on the basis of the

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deceased working as unskilled labourers at the minimum rate of Rs.1,500/- per month. Out of the said income, 1/3^rd of the income has to be deducted towards personal expenses of the respective deceased in case he is a married person and 50% of the income has to be deducted towards personal expenditure in case the deceased was a bachelor.

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6. Computation of compensation in C.M.A.No.3229 of 2003; the deceased who is a married person was of the apparent age of 32 years as per postmortem certificate. So, the relevant multiplier applicable to his age is ‘16’. Pecuniary compensation comes to Rs.12,000/- x 16 = Rs.1,92,000/-. Apart from that, the non-pecuniary compensation of Rs.32,500/- has to be added to it. Total compensation amount comes to Rs.2,24,500/-.

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7. Computation of compensation in C.M.A.No.665 of 2004;

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The deceased was unmarried in this case and his apparent age as per postmortem examination certificate was 35 years. There must be minimum of 15 years age gap between the child and the mother. If apparent age as given in the postmortem certificate is taken into consideration,

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mother’s age of the deceased comes to 53 years. For the age of 53 years, the appropriate multiplier is ‘11’. Pecuniary compensation comes to Rs.9000/- x 11 = Rs.99,000/-. Apart from that, claimants are entitled for non-pecuniary compensation of Rs.17,500/-. Total compensation amount comes to Rs.1,16,500/-.

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8. C.M.A.No.3229 of 2003:-

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In the result, the appeal is partly allowed refixing the compensation amount payable to the respondents 1 to 4 who are the claimants at Rs.2,24,500/-; and the appeal is partly dismissed. The respondents 1 to 3 are entitled for costs on the above compensation amount.

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9. C.M.A.No.665 of 2004:

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In the result, the appeal is partly allowed refixing the compensation amount at Rs.1,16,500/- payable to the respondents 1 and 2 who are the claimants; and the appeal is partly dismissed. The claimants are entitled to proportionate costs on the refixed amount.

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10. The claimants are entitled for interest at the same rate as awarded by the lower Tribunal. The lower Tribunal will apportion the compensation amount among the claimants and will pass necessary orders for withdrawal of

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the amounts having regard to the case law on the subject.

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_____________________________ SAMUDRALA GOVINDARAJULU,J

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Dt.16^th August, 2012

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PNV

Oriental Insu.Co.Ltd Nizamabad v. D.Laxmi and 4 Ors.

Case brief

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Oriental Insu.Co.Ltd Nizamabad v. D.Laxmi and 4 Ors.

Case brief

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What did the court decide?

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