Accident claim - mere filing a private income certificate with out examining the author of certificate is not sufficient to consider as a proof of income - Young boy - only son - another minor daughter is there - Loss of estate is fixed at Rs.25,000/- instead of Rs.15000/- granted by lower tribunal - funeral expenses are increased at Rs.25,000/- instead of Rs.5,000/- granted by lower court taking the judgment of Apex court = Appeal was partly allowed = Batta Yellaiah and others..... Appellants B. Ramesh and another. .... Respondents = published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10584

Accident claim - mere filing a private income certificate with out examining the author of certificate is not sufficient to consider as a proof of income - Young boy - only son - another minor daughter is there - Loss of estate is fixed at Rs.25,000/- instead of Rs.15000/- granted by lower tribunal - funeral expenses are increased at Rs.25,000/- instead of Rs.5,000/- granted by lower court taking the judgment of Apex court = Appeal was partly allowed =

 Regarding the earnings of the deceased, the claim of the appellants
is that he was working in Sai Rice Mill, Mallur as Hamali and was earning
Rs.3,000/- per month.  Besides, by vending milk he was earning Rs.1,000/- per
month and was contributing his earnings to his family. Then proof is concerned,
the claimants filed Ex.A.6-certificate said to be issued by Y. Mohan Rao of M/s.
Sree Sai Rice Mill, Mallur wherein it was mentioned that the deceased worked as
Hamali in the said rice mill from 10.01.2004 to 01.02.2005 and he was paid
monthly salary of Rs.3,000/-.  As rightly observed by the Tribunal, the
appellants have not examined the said Mohan Rao who issued Ex.A.6.  Hence there  
was no proper proof for the income of the deceased.  Similarly there was no
proof regarding the earnings of the deceased by vending milk.  Considering these
aspects, the Tribunal fixed his notional income as Rs.15,000/- per annum and
accordingly computed the compensation for loss of dependency.  Therefore, the
method adopted by the Tribunal cannot be found fault.

 If the claim is one under Section 163-A of the Act, the
Tribunal can resort to Second Schedule of the Act for granting compensation for
general damages.  
If the claim is one under Section 166 of the Act, then the
Tribunal having regard to the facts and circumstances of the case can grant
reasonable compensation for the aforesaid general damages.   
In the instant
case, the Tribunal has granted Rs.15,000/- for loss of estate.  Here, it has to
be seen that as per claimants, the deceased was their only son.  Besides, they
have a minor unmarried daughter.  Therefore, in their old age, the deceased, if
alive, has to maintain them and also perform the marriage of his sister.
However fate decided otherwise.  Therefore, loss to the estate of claimants is
more since they have no other son to look after them in their old age.
Therefore, considering these facts and circumstances, an amount of Rs.25,000/-
is granted towards loss of estate.

Then the Tribunal granted Rs.5,000/- towards funeral and transportation
expenses.  This amount also can be said to be inadequate in the light of the
judgment of Hon'ble Apex Court in the case of Rajesh and others vs. Rajbir Singh
and others1, wherein it was held that Rs.25,000/- is the reasonable amount
towards funeral expenses.  Hence, the said amount is awarded for funeral and
transportation expenses.
In the result, this M.A.C.M.A is partly allowed and the Respondent
No.2/Insurance Company is directed to pay to the appellants/claimants, the
compensation for loss of estate at Rs.25,000/- (instead of Rs.15,000/- awarded
by the Tribunal) and funeral and transportation expenses at Rs.25,000/-(instead
of Rs.5,000/- awarded by the Tribunal) with proportionate costs and interest at
6% per annum from the date of O.P till the date of realization, within one month
from the date of this judgment failing which execution shall be taken out
against them.  No costs.

THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO          

M.A.C.M.A No.370 of 2009

28-11-2013

Batta Yellaiah and others..... Appellants

B. Ramesh
and another.                                                    .... Respondents


 Counsel for Appellants          : Sri Jayanti S.C. Sekhar


 Counsel for Respondent No.2    : Sri N. V. Jagannath

< Gist:

> Head Note:

? Cases referred:
1. 2013 ACJ 1403 (Supreme Court)

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO        
M.A.C.M.A. No.370 of 2009
JUDGMENT:  
         Challenging the quantum of compensation awarded in O.P.No.661 of 2005 by
the Motor Accidents Claims Tribunal-cum-II Additional District Judge, at
Warangal (for short "the Tribunal") as inadequate, the claimants preferred the
present M.A.C.M.A.
2)      The factual matrix of the case is thus:
a)      The 1st and 2nd claimants are the parents and 3rd claimant is the minor
sister of the deceased - Batta Nageshwar Rao of Malluru Village in Warangal
District.  Claimants' case is that the deceased was 18 years old and was working
as Hamali in Sree Sai Rice Mill, Mallur on a monthly salary of Rs.3,000/-.
Besides, by vending milk he was earning Rs.1,000/- per month and was
contributing his earnings to his family.  While so on 02.03.2005 the deceased
went to Warangal on his personal work and on that night, he boarded a Commander
Jeep bearing No. AP 36 V 7403 at Warangal to return home.  On the way at about
9:00pm, when the said Jeep reached Thimmapet Cross roads, the driver of the Jeep
drove the same at high speed and in a rash and negligent manner and lost control
over vehicle and consequently the Jeep turned turtle, due to which the deceased
and other passengers fell down and received grievous injuries.  Immediately, the
deceased and other injured were shifted to M.G.M. Hospital, Warangal.  While
undergoing treatment, the deceased died on 03.03.2005.  It was averred that the
driver of Commander Jeep was responsible for the accident.  It is further
averred that due to sudden and untimely death of the deceased, the claimants
lost their supporter. On these pleas, the claimants filed O.P.No.661 of 2005
against respondents 1 and 2 who are the owner and insurer of the offending Jeep
and claimed compensation of Rs.3,00,000/- under different heads.
b)      The 1st respondent remained ex parte.
c)      The 2nd respondent/Insurance Company filed counter and opposed the claim
denying the entire case of the claimants.
d)      The judgment of the Tribunal shows that during trial, PWs.1 and 2 were
examined and Exs.A.1 to Ex.A.6 were marked on behalf of claimants.  Respondent
No.2 did not adduce any evidence.
e)      The judgment would further show that having regard to the eye witness
account of PW.2 and the supporting documents Ex.A.1-F.I.R and Ex.A.2- charge
sheet, the Tribunal held that the driver of the Jeep was responsible for the
accident.  Then compensation is concerned, the Tribunal fixed the notional
income of the deceased as Rs.15,000/- per annum and taking his mother's age as
35 years, since the deceased was Bachelor, the Tribunal selected a multiplier
'16'.  After deducting 1/3rd from his notional annual income towards personal
expenditure, the Tribunal arrived at the net loss of earnings of the deceased as
Rs.1,60,000/-(Rs.10,000/- X 16) and granted the said amount as loss of
dependency.  The Tribunal further granted Rs.15,000/- towards loss of estate and
Rs.5,000/- towards funeral expenses and transportation charges. Thus, the
Tribunal granted a total compensation of Rs.1,80,000/- to  the claimants.
        Challenging the aforesaid compensation as grossly inadequate, the
claimants preferred the present appeal.
3)      Heard arguments of both sides.
4)      Learned counsel for appellants argued that the deceased was a young and
able-bodied person aged 18 years and was working as Hamali in Sai Rice Mill and
was earning Rs.3,000/- per month.  Besides by vending milk he was also earning
Rs.1,000/-.  Despite the claimants produced Ex.A.6- letter issued by the owner
of Sree Sai Mini Modern Rice Mill, Mallur on his letter head, the Tribunal did
not take it into consideration and instead, fixed his notional income at a low
rate of Rs.15,000/- per annum and accordingly awarded the compensation for loss
of dependency at Rs.1,60,000/- which is a low amount.  He thus argued that
Rs.4,000/- or a reasonable amount may be taken as the monthly earnings of the
deceased.  He further argued that the compensation granted towards loss of
estate and funeral expenses is also grossly low and the interest awarded at 6%
per annum is also low.  Thus, he prayed for enhancement of the compensation.
5)      Per contra, opposing the appeal learned counsel for 2nd respondent
submitted that there is no cogent evidence in this case regarding the earnings
of the deceased, in as much as, though Ex.A.6-letter said to have been issued by
M/s. Sree Sai Mini Modern Rice Mill was produced to show as if the deceased
worked as Hamali in that rice mill, no responsible person representing the rice
mill, such as Proprietor or Manger was examined to prove the said document.
Similarly, the claimants have not produced any proof in support of their claim
that the deceased was vending milk.  Considering all these,  he argued,  the
Tribunal rightly fixed the notional income of the deceased as Rs.15,000/- per
annum following the Second Schedule of the Motor Vehicles Act, 1988 (for short
"the Act") and accordingly fixed the compensation for loss of dependency.  He
further argued that the Tribunal has also granted adequate compensation under
the heads loss of estate and funeral expenses.  He submitted that since the
compensation granted under different heads is just and reasonable, there is no
need to interfere with the same in the appeal.  He thus, prayed for dismissal of
the appeal.
6)      In the light of above divergent arguments, now the point for consideration
is:
 "Whether the judgment of the Tribunal is legally and factually sustainable"?
7)      POINT: Regarding the earnings of the deceased, the claim of the appellants
is that he was working in Sai Rice Mill, Mallur as Hamali and was earning
Rs.3,000/- per month.  Besides, by vending milk he was earning Rs.1,000/- per
month and was contributing his earnings to his family. Then proof is concerned,
the claimants filed Ex.A.6-certificate said to be issued by Y. Mohan Rao of M/s.
Sree Sai Rice Mill, Mallur wherein it was mentioned that the deceased worked as
Hamali in the said rice mill from 10.01.2004 to 01.02.2005 and he was paid
monthly salary of Rs.3,000/-.  As rightly observed by the Tribunal, the
appellants have not examined the said Mohan Rao who issued Ex.A.6.  Hence there  
was no proper proof for the income of the deceased.  Similarly there was no
proof regarding the earnings of the deceased by vending milk.  Considering these
aspects, the Tribunal fixed his notional income as Rs.15,000/- per annum and
accordingly computed the compensation for loss of dependency.  Therefore, the
method adopted by the Tribunal cannot be found fault.
8)      So far the compensation for loss of estate is concerned, the Tribunal has
granted Rs.15,000/-.  In my considered view, the compensation under this head is
inadequate.  The compensation under the head loss of estate comes under the main
head general damages.  Loss of consortium, pain and suffering, loss of estate
etc., which come under General Damages are non-pecuniary damages and they need  
not be specifically pleaded and proved and they are implied by the law.  In such
cases, the Tribunal having regard to the facts and circumstances can grant
adequate compensation.  If the claim is one under Section 163-A of the Act, the
Tribunal can resort to Second Schedule of the Act for granting compensation for
general damages.  
If the claim is one under Section 166 of the Act, then the
Tribunal having regard to the facts and circumstances of the case can grant
reasonable compensation for the aforesaid general damages.   
In the instant
case, the Tribunal has granted Rs.15,000/- for loss of estate.  Here, it has to
be seen that as per claimants, the deceased was their only son.  Besides, they
have a minor unmarried daughter. 
Therefore, in their old age, the deceased, if
alive, has to maintain them and also perform the marriage of his sister.
However fate decided otherwise.  
Therefore, loss to the estate of claimants is
more since they have no other son to look after them in their old age.
Therefore, considering these facts and circumstances, an amount of Rs.25,000/-
is granted towards loss of estate.
9)      Then the Tribunal granted Rs.5,000/- towards funeral and transportation
expenses.  This amount also can be said to be inadequate in the light of the
judgment of Hon'ble Apex Court in the case of Rajesh and others vs. Rajbir Singh
and others1, wherein it was held that Rs.25,000/- is the reasonable amount
towards funeral expenses.  Hence, the said amount is awarded for funeral and
transportation expenses.
10)     In the result, this M.A.C.M.A is partly allowed and the Respondent
No.2/Insurance Company is directed to pay to the appellants/claimants, the
compensation for loss of estate at Rs.25,000/- (instead of Rs.15,000/- awarded
by the Tribunal) and funeral and transportation expenses at Rs.25,000/-(instead
of Rs.5,000/- awarded by the Tribunal) with proportionate costs and interest at
6% per annum from the date of O.P till the date of realization, within one month
from the date of this judgment failing which execution shall be taken out
against them.  No costs.
11)     Miscellaneous applications if any pending in this appeal, shall stand
closed.
__________________________  
U. DURGA PRASAD RAO, J    
Date: 28.11.2013

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