Accident claim - M.V.Act - Rs.15000/- per annum as per schedule when applied - when the future prospects not given , deducting to 50% percent of income towards personal expenditure for a bachelor is reasonable - their Lordships held that when it is proved that the deceased was able body person and living on doing labour work - fixing Rs.100/- per day is not unreasonable and further held that Deduction of 50% income towards personal charges as held by apex court - causes more miserable as the court not taken in to consideration of future prospects while fixing income of Labour as Labour too would fetch increased wages daily and further the old parents are depending on the income of the deceased and as such deducting only 1/3rd income towards personal expenditure is reasonable - appeal filed by company was dismissed = M.A.C.M.A No.2601 of 2009 06-08-2014 The United India Insurance Co. Ltd.Rep. by its Deputy Manager, Hyderabad ... Appellant Smt. K. Kistamma and others.. Respondents = 2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11800

Accident claim - M.V.Act - Rs.15000/- per annum as per schedule when applied - when the future prospects not given , deducting to 50% percent of income towards personal expenditure for a bachelor is reasonable - their Lordships held that when it is proved that the deceased was able body person and living on doing labour work - fixing Rs.100/- per day is not unreasonable and further held that Deduction of 50% income towards personal charges as held by apex court - causes more miserable as the court not taken in to consideration of future prospects while fixing income of Labour as Labour too would fetch increased wages daily and further the old parents are depending on the income of the deceased  and as such deducting only 1/3rd income towards personal expenditure is reasonable - appeal filed by company was dismissed =

one K. Srinivas, 30 years old bachelor died when a
tanker lorry hit him when its driver in the process of reversing the vehicle
drove it in a rash and negligent manner and hit the deceased.
The claimants
who are the parents of the deceased filed M.V.O.P.No.272 of 2006 and
claimed Rs.4,00,000/- as compensation against respondents 1 and 2 who are
the owner and insurer of the offending vehicle.
1st respondent/ owner
remained ex parte and 2nd respondent/ Insurance Company contested the
matter.
After trial, on consideration of evidence on record, the Tribunal
awarded total compensation of Rs.2,77,000/- with costs and interest at 6% p.a
against respondents. =
Once there is evidence of the fact that the deceased was working, the
learned Tribunal can safely presume that the deceased was having an
income. Item 6 of the Second Schedule attached to the Motor Vehicles
Act, 1988 (henceforth to be referred to as 'the Act' for short) speaks of
"Notional income for compensation to those who had no income prior to
accident" (emphasis added).
Hence, a notional income can be presumed
only in case the deceased had 'no income' prior to his death by accident.
However, in case the deceased was employed, he would naturally, be
earning some amount. In other words, he would have 'some income'.
Hence, 'notional income' cannot be presumed in such a case. To apply a
notional income in those cases where there is lack of evidence with
regard to the income of the deceased, is to misread and misapply item 6
of the Second Schedule of the Act.
 Therefore, the contention raised by
Mr. Bhandari, about the application of notional income, is
unacceptable.
However, learned Tribunal should have also considered
the fact that even for a labourer, the income does increase in the future.
Thus, learned Tribunal should have added at least 50 per cent of the
income to the assessed income in order to arrive at the correct
compensation. =
It is true that in the cited decision in Syed Basheer Ahameds case
(1 supra) and also in Smt. Sarla Verma and Others vs. Delhi Transport
Corporation and another  the Apex Court held that in case of a bachelor
50% of his earnings is to be deducted.  However, it should be noted that the
tribunal while fixing the monthly earnings of the deceased at Rs.3,000/- has
not taken into consideration the component of his future prospects.  Thereby,
the compensation was reduced.
        In Santhosh Devi vs. National Insurance Co.Ltd.  the Apex Court
observed that even in case of self-employed and fixed wage persons future
prospects have to be taken into consideration and in that regard the Supreme
Court differed with the observation made in the earlier decision in Sarla
Vermas case (5 supra). So, it shows that tribunals and courts have to
consider the future prospects for computation of compensation.
Unfortunately that was not done in the instant case and thereby compensation
was lowered.  If 50% of the earnings of the deceased were to be deducted, as
argued by the appellant as against 1/3rd deducted by the tribunal, that would
result in further injustice to the claimants.  Therefore, for this reason this
Court declines to deduct 50% towards personal expenditure of the deceased.
For another reason also, this Court disapproves deduction of 50%.  In Sarla
Vermas case (5 supra) the Apex Court while advising deduction of 50%
towards personal expenditure of a deceased bachelor, however, observed that
in case of exceptional circumstances like the deceased had to feed more
mouths like widowed mother and large number of younger slimlings, the
personal expenditure can be restricted to 1/3rd.  In the instant case, the plea
of
claimants who are the parents of the deceased is that they are depending on
the earnings of the deceased and his death thrown them into miserable
condition. In the evidence of PW1the mother, she deposed that during his
life time the deceased used to look after herself and her husband by arranging
bread and butter.  Their dependency is not challenged in the cross-
examination. As the deceased had to support his parents, it would be natural
for him to use 1/3rd of his income for his personal expenditure.

2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11800

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

M.A.C.M.A No.2601 of 2009

06-08-2014

The United India Insurance Co. Ltd.Rep. by its Deputy Manager, Hyderabad ...
Appellant

Smt. K. Kistamma and others.. Respondents  

Counsel for Appellant: Sri G. Ramachandra Reddy

Counsel for Respondents 1 and 2: Sri G. Madhu

<Gist:

>Head Note:

?Cases referred:
1)      (2009) 2 SCC 225 = 2009 ACJ 690 (SC)
2)      2007 (3)ALD 731
3)      2007 (3) ALD 634
4)      2007 ACJ 1477 (Rajasthan)
5)      2009 ACJ 1298 (SC) = AIR 2009 SC 3104  
6)      2012 ACJ 1428 (SC)
7)      1987 ACJ 561 (SC)


THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO            
M.A.C.M.A. No.2601 of 2009

JUDGMENT:  
        Challenging the quantum of compensation, 2nd respondent in the OP/ 
Insurance Company preferred MACMA.    
2)      On factual side, one K. Srinivas, 30 years old bachelor died when a
tanker lorry hit him when its driver in the process of reversing the vehicle
drove it in a rash and negligent manner and hit the deceased.  The claimants
who are the parents of the deceased filed M.V.O.P.No.272 of 2006 and
claimed Rs.4,00,000/- as compensation against respondents 1 and 2 who are  
the owner and insurer of the offending vehicle.  1st respondent/ owner
remained ex parte and 2nd respondent/ Insurance Company contested the  
matter.  After trial, on consideration of evidence on record, the Tribunal
awarded total compensation of Rs.2,77,000/- with costs and interest at 6% p.a
against respondents.
        Hence the appeal by Insurance Company challenging the compensation  
as exorbitant.
3)      The parties in this appeal are referred to as they stood before the
Tribunal.
4)      Heard arguments of Sri G.Ramachandra Reddy, learned counsel for
appellant/ Insurance Company and Sri G.Madhu, learned counsel for
respondents/ claimants.
5 a)    Challenging the compensation, learned counsel for appellant firstly
argued that the Tribunal erred in fixing the notional income of the deceased
as Rs.100/- p.m. Instead, it ought to have fixed his annual income at
Rs.15,000/- following Second Schedule of Motor Vehicles Act.  He further
contended that the Tribunal ought to have deducted 50% towards personal
expenditure of the deceased in view of the decision in Syed Basheer Ahamed
and others vs. Mohd. Jameel and another   It deducted only 1/3rd, he argued.
His further submission is that second claimant who is the father of the
deceased was not a dependant and hence he is not entitled to compensation.
On this aspect, he relied upon the following decisions:
i)      Shamsunder Tiwari @ Shamlal Tiwari and others vs. Narsimha
Reddy and another
ii)     Gosala Ramadevi and others vs. P.Sivanarayana and another
b)      Finally he contended that the vehicle involved in the accident was AP
28 U 560 but the vehicle insured was AP 28 V 560 and the same was falsely 
implanted to gain compensation.
        He thus prayed to allow the appeal and reduce the quantum of
compensation.
6)      Per contra, while supporting the award, learned counsel for
respondents/ claimants firstly argued that the deceased was a young person
having the potentiality to earn more than Rs.100/- per day by doing labour
work.  In spite of it, the Tribunal took a moderate amount of Rs.100/- per day
and fixed his notional income as Rs.3000/- p.m and therefore, the Tribunal
cannot be found fault.  He further submitted that both the parents who are old
aged people are his dependants and hence they deserve compensation.  He
thus prayed for dismissal of the appeal.
7)      In the light of above rival arguments, the point for determination in this
appeal is:
Whether the compensation awarded by the Tribunal is just and reasonable
or needs interference?
8) POINT: The first contention of the appellant is that the tribunal ought to
have fixed notional income of the deceased at Rs.15,000/- per annum basing
on the Second Schedule of the M.V.Act and erred in fixing his income as
Rs.100/- per day.
a)      The contention of counsel for claimants is that the notional income of
Rs.15,000/- as provided in Second Schedule of the M.V.Act shall be made 
applicable to the non-earning persons such as old, bed ridden, sick and
infirm who had no income, but not to those persons who are able bodied
persons and by their exertions can earn some income. In those cases, the
Court has to fix notional income depending upon the age, earning capacity
and avocation of such persons. In such an event the Court need not be carried
away by the second schedule. On this aspect he relied upon the decision
reported in Vishan Das and others vs. Suwa Lal and others . I find force in
the submission of counsel for claimants.  The notional income of Rs.15,000/-
as provided in item No.6 of Second Schedule appended to M.V.Act applies to
those persons who had admittedly no income prior to the accident.  The
heading to Item No.6 which reads as Notional income for compensation to
those who had no income prior to accident, itself is self-explanatory in this
regard. Should we give a plain meaning to the words who had no income
prior to accident we understand that they refer to those persons who
admittedly had no income prior to accident. We can visualize those persons
as old and infirm, bed ridden by sickness and those who had no earning
capacity. In respect of those persons, notional income has to be taken as
Rs.15,000/- for computation of compensation. However, honestly speaking
the said notional income will not apply to other persons who are able bodied
persons and having earning potentiality and those who are employed in one
or other avocation and earning some income. In respect of such persons even
if there is no concrete evidence regarding their earnings, the Court shall make
a reasonable estimate of their earnings having regard to their age, nature of
occupation etc.  My view gets fortified from the observation of learned Judge
in the cited decision reported in Vishan Dass case (4 supra) which is as
follows:
Once there is evidence of the fact that the deceased was working, the
learned Tribunal can safely presume that the deceased was having an
income. Item 6 of the Second Schedule attached to the Motor Vehicles
Act, 1988 (henceforth to be referred to as 'the Act' for short) speaks of
"Notional income for compensation to those who had no income prior to
accident" (emphasis added). Hence, a notional income can be presumed  
only in case the deceased had 'no income' prior to his death by accident.
However, in case the deceased was employed, he would naturally, be 
earning some amount. In other words, he would have 'some income'. 
Hence, 'notional income' cannot be presumed in such a case. To apply a
notional income in those cases where there is lack of evidence with
regard to the income of the deceased, is to misread and misapply item 6
of the Second Schedule of the Act. Therefore, the contention raised by
Mr. Bhandari, about the application of notional income, is
unacceptable. However, learned Tribunal should have also considered
the fact that even for a labourer, the income does increase in the future.
Thus, learned Tribunal should have added at least 50 per cent of the
income to the assessed income in order to arrive at the correct
compensation. 
b)      In the instant case, it is pleaded deceased was aged 28 years and
earning Rs.3,000/- per month by working as labourer (adda coolie) and
fending his parents who are dependants. In the evidence of PW1 also she
deposed in similar lines. In Ex.A4postmortem report deceased was shown   
as 25 years old person. So, the facts and evidence show that deceased was an
young and able bodied person having earning potentiality.  Though there is
no recorded evidence regarding his earnings, still there is evidence to the
effect that he was earning some income. Therefore, the tribunal was right in
considering him as unskilled labourer and earning Rs.100/- per day.
c)      Then the second contention of the appellant is that the tribunal ought to
have deducted 50% of the earnings towards personal and living expenses of
deceased. It is true that in the cited decision in Syed Basheer Ahameds case
(1 supra) and also in Smt. Sarla Verma and Others vs. Delhi Transport
Corporation and another  the Apex Court held that in case of a bachelor
50% of his earnings is to be deducted.  However, it should be noted that the
tribunal while fixing the monthly earnings of the deceased at Rs.3,000/- has
not taken into consideration the component of his future prospects.  Thereby,
the compensation was reduced.  
        In Santhosh Devi vs. National Insurance Co.Ltd.  the Apex Court
observed that even in case of self-employed and fixed wage persons future
prospects have to be taken into consideration and in that regard the Supreme
Court differed with the observation made in the earlier decision in Sarla
Vermas case (5 supra). So, it shows that tribunals and courts have to
consider the future prospects for computation of compensation.
Unfortunately that was not done in the instant case and thereby compensation
was lowered.  If 50% of the earnings of the deceased were to be deducted, as
argued by the appellant as against 1/3rd deducted by the tribunal, that would
result in further injustice to the claimants.  Therefore, for this reason this
Court declines to deduct 50% towards personal expenditure of the deceased.
For another reason also, this Court disapproves deduction of 50%.  In Sarla
Vermas case (5 supra) the Apex Court while advising deduction of 50%
towards personal expenditure of a deceased bachelor, however, observed that
in case of exceptional circumstances like the deceased had to feed more
mouths like widowed mother and large number of younger slimlings, the
personal expenditure can be restricted to 1/3rd.  In the instant case, the plea
of
claimants who are the parents of the deceased is that they are depending on
the earnings of the deceased and his death thrown them into miserable
condition. In the evidence of PW1the mother, she deposed that during his
life time the deceased used to look after herself and her husband by arranging
bread and butter.  Their dependency is not challenged in the cross-
examination. As the deceased had to support his parents, it would be natural
for him to use 1/3rd of his income for his personal expenditure.
10)     The next contention is that second claimant who is the father of the
deceased is not a dependent and hence he is not entitled to compensation.  I
am unable to agree with this contention.  It is already held supra that as
against the plea of the petitioners that they are dependants of the deceased,
there was no contra evidence.  Therefore, both the claimants can be taken as
his dependants.  Even otherwise dependency alone is not a factor to consider
the entitlement of compensation.  The claimants are admittedly the legal
representatives of the deceased.  Under Section 166(1) (c) of M.V. Act, legal
representatives can file the claim petition irrespective of the fact whether
they
are dependants or not.  In Gujarat State Road Transport Corporation,
Ahmedabad vs. Ramanbhai Prabhatbhai , Apex Court allowed the claim of
the elder brothers of a deceased boy of about 14 years on the ground that they
were the legal representatives of the deceased, though they were not his
dependants.   Hence the contention of the appellant cannot be upheld.
11)     Finally, it was argued about difference in the vehicle number.  This
argument cannot be approved because the tanker lorry involved in the
accident was AP 28 V 560 but the claimants by mistake mentioned its
number as AP 28 U 560.  Later they got amended the registration number as
AP 28 V 560 as per orders in I.A.No.591 of 2007.  Hence there is no
ambiguity in it.
12)     In the result, I find no merits in the appeal and accordingly, the same is
dismissed by confirming award passed by the Tribunal in OP No.272 of 2006.
There shall be no order as to costs in the appeal.
     As a sequel, miscellaneous applications pending, if any, shall stand
closed.
_________________________  
U. DURGA PRASAD RAO, J    
Date: 06.08.2014

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