The Oriental Insurance Co. Ltd. v. Angi Sanyasi (died) & Ors.

Judgment

The appeal is directed against the award in O.P. No.229 of 2002 on the file of the Motor Accidents Claims Tribunal-cum- Additional District Judge, Vizianagaram, dated 28-07-2003. Angi Pydamma, aged 60 years, is the mother of claimants 2 and 3 and wife of the 1st claimant. She was going on the left side of the road on 19-10-2001 when jeep No.AP31 P9663, driven by the 1st respondent rashly and negligently in high speed, dashed against her. She suffered injuries and died later due to the same. Hence, a compensation of Rs.1,00,000/- was claimed against the driver, owner and insurer of the jeep. The driver and owner remained ex parte, while the insurer denied any rash and negligent driving on the part of the 1st respondent and alleged that the deceased herself suddenly crossed the road leading to the accident.

The insurer put the claimants to strict proof of all the other allegations and contended that the compensation claimed is excessive. The Tribunal framed issues about the responsibility for the accident and the entitlement of the claimant to compensation and during the pendency of the claim petition, the 1st claimant died leaving claimants 2 and 3 alone as his legal representatives. During the course of enquiry, the Tribunal examined P.W.1 and marked Exs.A.1 to A.3 and B.1. The Tribunal rendered the impugned award in the petition

under Section 163-A of the Motor Vehicles Act, 1988 firstly concluding that the accident that occurred on 19-10-2001 resulted in the death of Angi Pydamma due to the injuries suffered in the said accident. The Tribunal relied on Exs.A.1 to A.3 certified copy of first information report, certified copy of post-mortem certificate and certified copy of charge-sheet corroborating the oral evidence of P.W.1 for coming to such a conclusion. The Tribunal noted that there was no other evidence except Ex.A.2 post-mortem certificate to indicate the age of the deceased, which was stated to be about 60 years in Ex.A.2. The appropriate multiplier was considered by the Tribunal to be 6. The assessed income of the deceased was Rs.50/- per day according to the Tribunal and on the annual income of Rs.15,000/-, the Tribunal deducted one-third towards personal expenses of the deceased and calculated the loss of dependency at Rs.10,000/- per annum and awarded Rs.60,000/- towards the total loss of dependency. The Tribunal also awarded Rs.2,500/- towards loss of estate and Rs.2,000/- towards funeral expenses as per Second Schedule to the Motor Vehicles Act, 1988 and on the total compensation of Rs.64,500/-, the Tribunal awarded interest at 9 per cent per annum from the date of the petition till the date of realization and proportionate costs. It made the insurer also jointly and severally liable in view of the subsistence of Ex.B.1 policy of insurance at the relevant time. The insurer is before this Court with this appeal contending that the Tribunal should have noticed that the claimants were not depending on the income of the deceased and the husband and married daughters could not have claimed to be dependents on the income of the deceased old lady aged 60 years. The daughters were, in fact, aged 35 years and 32 years and were living with their husbands separately and the assessment of income of the deceased by the Tribunal was also incorrect, as the deceased would not have earned Rs.50/- per day at that age as a coolie and even if she was earning such an amount, the same would have been hardly sufficient for her own maintenance leaving nothing to be contributed to the claimants. The insurer, therefore, desired the impugned award to be reversed. Heard Sri S. Agastya Sarma, learned standing counsel for the appellant-insurer and Sri Jayanti S.C. Sekhar, learned counsel for the claimants. The driver and owner of the vehicle are unrepresented before this Court also. The conclusion of the Tribunal about the death of Angi Pydamma being in consequence of the injuries suffered in the accident involving the vehicle driven by the 1st respondent and owned by the 2nd respondent is not under challenge and it is also not in dispute that valid and subsisting insurance was in existence with the appellant in respect of the said vehicle at the relevant time. The question that remains to be adjudicated herein is only the justification for the quantum of compensation awarded by the Tribunal. It should be initially noted that the record received from the Tribunal does not disclose the insurer applying for and the Tribunal considering and granting any permission under Section 170 of the Motor Vehicles Act, 1988 and if so, the very maintainability of the appeal itself is untenable. Even otherwise, the age of the deceased was taken as 60 years with reference to Ex.A.2 post-mortem certificate in the absence of any other evidence and the assessment of the age by medical expert who conducted post-mortem can be safely considered to have offered a dependable basis for the Tribunal to arrive at the age of the deceased. In so far as the income is concerned, irrespective of the acceptability or otherwise of the reasoning of the Tribunal in assessing such income, this petition being under Section 163-A of the Motor Vehicles Act, 1988, Second schedule to the said Act straight away applies and the Second schedule presumes even non-earning persons to be earning Rs.15,000/- per annum and the same should enure to the benefit of the claimants herein also irrespective of the capability of the deceased to earn any income or her actually being engaged in any avocation at that advanced age to earn any income. Out of the income so assessed by the Tribunal at Rs.15,000/- per annum, one-third was deducted towards the living and personal expenses of the deceased, which is in tune with the second schedule and accepted conventions and the multiplier applicable to a person aged about 60 years and who has not completed 60 years, would have been 8 according to the Second schedule, while the Tribunal applied only a multiplier of 6 and hence, it was, in fact, a case the claimants could have complained of a lesser compensation being granted and not for the insurer to have complained against grant of any liberal compensation required. The grant of compensation towards loss of estate and funeral expenses was in accordance with Second schedule and the rate of interest granted by the Tribunal is not shown to be deviant from the then prevailing rates of interest by the time of the award. Therefore, there appear no reasonable grounds for interference with the award in question and the appeal has to fail. In the result, the appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 16-03-2011 Svv