THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No.2504 OF 2009 Dated 6.4.2011 Between: E.Chandrakala. …Appellant. And: K.Pratap Reddy and another. …Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No.2504 OF 2009 JUDGMENT: This appeal has been filed by the appellant, who is the claimant before the lower Tribunal challenging the order dated 4-1-2008 passed in O.P.No.1837 of 2006 on the file of the XI Additional Chief Judge, (Fast Track Court), City Civil Court, Hyderabad, to the extent of in not granting the entire compensation amount claimed by her. She has also filed an application in M.A.C.M.A.M.P.No.1160 of 2011 seeking enhancement of compensation from Rs.3,00,000/- to Rs.4,32,000/-. Appellant herein is the claimant and the 1st respondent herein is the owner of the jeep and 2nd respondent is the Insurance Company with which the vehicle was insured on the date of accident. The parties will hereinafter be referred to as arrayed before the Tribunal for the sake of convenience. The claimant who is the wife of the deceased filed the above O.P. seeking compensation of Rs.3,00,000/- on account of the death of her husband by name Narasimlu (hereinafter be referred to “as the deceased”) in a fatal motor vehicle accident. The brief facts of the case are as follows: On 12-12-2005 at about 9 hours, while the deceased was crossing the road which is national high way at Vetrotex company, Thimmapur village, the offending zeep bearing registration No.AP 22U 3112 being driven by its driver in a rash and negligent manner came and dashed against the deceased, as a result of which, the deceased sustained grievous injuries. He was shifted to Osmania General Hospital, Hyderabad for treatment and while undergoing treatment, he succumbed to the injuries. Police, Kothur registered a case in Cr.No.258 of 2005 against the driver of the zeep. The case of the claimant is that her deceased husband was hale and healthy at the time of the accident and he used to work as labourer earning Rs.4,500/- per month and hence, she is entitled to claim a compensation of Rs.4,32,000/-. The 1st respondent-owner of the zeep seems to have not contested the matter and 2nd respondent-Insurance Company with which the vehicle was insured filed a counter denying inter alia the averments made by the claimant with regard to the age, income and avocation of the deceased. It is also averred that the claimant had to prove that the driver of the vehicle was having driving license at the time of the accident and that the same was covered by the Insurance Policy and that the claim of the claimant is exorbitant. The Tribunal formulated the following issues: 1. Whether the pleaded accident occurred resulting in the death of deceased Narsimlu due to the rash and negligent driving of the driver of the jeep bearing registration No.AP 22U 3112? 2. Whether the petitioner is entitled to any compensation if so to what amount and against whom? 3. To what relief? In support of her claim, the claimant besides examining herself as P.W.1, examined one P.Raju as P.W.2 and got marked Exs.A.1 to A.6. On behalf of the Insurance Company, none was examined but Ex.B.1 copy of Insurance Policy was marked. The Tribunal on assessing oral and documentary evidence came to a conclusion that the accident occurred due to the rash and negligent driving of the zeep. On issue No.2, the Tribunal came to a conclusion that there is no documentary evidence to prove the earnings of the deceased and therefore, his income could be assessed at the rate of Rs.20,000/- per annum. After deducting 1/3rd towards his personal expenses, the loss of earnings were taken as Rs.6,500/- per month and accordingly, loss of dependency was determined at Rs.2,02,500/- by adding an amount of Rs.5,000/- towards loss of consortium, Rs.5,000/- towards transport charges and funeral expenses etc., and Rs.5,000/- towards loss of estate, the Tribunal awarded a total sum of Rs.2,17,500/-. Smt. A.Chaya Devi, learned counsel for the claimant submits that the Tribunal was not justified in fixing the income of the deceased at Rs.20,000/- per annum. Her main contention is that the minimum wage of the labourer is not less than Rs.120/- to Rs.150/- per day and there will not be any documentary evidence to prove the income of the labourers and the Tribunal ought to have taken at least Rs.100/- per day towards the income of the deceased. It is also her submission that the claimant has filed an application in M.A.C.M.A.M.P.No.1160 of 2011 seeking to enhance her claim to Rs.4,32,000/- from Rs.3,00,000/- . Learned Standing Counsel for the Insurance Company submits that claimant cannot claim compensation under Section 163-A as well as under Section 166 of the Motor Vehicles Act and they should claim compensation under any one of those Sections but not under both the Sections. It is also her submission that ground No.6 of the appeal grounds reveals that the claimants have been claiming compensation under Section 163-A of the Motor Vehicles Act and if that is the case, II Schedule of the Motor Vehicles Act would apply. The only point that arises for consideration is what is the just and reasonable compensation in the facts and circumstances of the case? The learned Standing Counsel for the Insurance Company is right in saying that the claimant cannot claim compensation under both the Sections i.e., 166 and 163-A of the Motor Vehicles Act. She is also right in saying that II Schedule would apply if the claim is applied under Section 163-A of the Motor Vehicles Act. But as contended by the learned counsel for the claimant and also as seen from the recitals of the order of the Tribunal, the Tribunal has proceeded treating the application as if it was filed under Section 166 of the Motor Vehicles Act. Because, admittedly, the Tribunal has framed the issue as to whether the accident occurred due to the rash and negligent driving of the driver of the jeep, thus it clearly goes to show that the Tribunal has treated the application as if it was filed under Section 166 of the Motor Vehicles Act though in the claim petition, it is mentioned that the application is filed under Sections 166 and 163 A of the Motor vehicles Act i.e., under both the Sections. Human life is precious. In fact, no amount of compensation would relieve the grief of the beloved wife, children, parents and other family members of the deceased, as the case may be. The only point that arises for consideration is as to whether the claimant is entitled for enhancement of compensation? POINT: The claimant is examined as P.W.1 and she has deposed that the deceased was earning Rs.150/- per day by doing coolie work. It appears to be an admitted fact that the deceased was aged about 30 years as on the date of accident. Nothing has been elicited in the cross-examination of P.W.1 to disbelieve her contention with regard to the age and health condition of the deceased and that the deceased was working as a labourer. As far as the daily wage labourers are concerned, normally, no documents will be maintained and the Tribunal cannot expect the documentary evidence in case of the daily wage working labourers. Some records may be maintained to prove the wages paid to the workers, only where they are engaged by any organization or any department of the Government or Pubic Sector Undertakings. In such circumstances, the best method would be to consider the minimum wages fixed by the concerned Government. In this case, the accident occurred on 12-12-2005. In the above circumstances, it appears that the contention of Smt. Chayadevi that the daily wage workers were being paid Rs.100/- per day appears to be correct. Having regard to the age of the deceased, evidence of P.W.1 and the occupation of the deceased, the income of the deceased is taken at the rate of Rs.100/- per day and monthly income at Rs.3,000/-. If 1/3rd is deducted from out of the monthly income towards his personal expenses, the loss of dependency would come to Rs.2,000/- per month and the annual loss of earnings comes to Rs.24,000/-. The appropriate multiplier as per the decision of SARLA VERMA (SMT) AND OTHERS Vs. DELHI TRANSPORT CORPORATION AND ANOTHER ([1]) is 17. Therefore, the total loss of dependency comes to Rs.4,08,000/-. (ie., Rs.24,000/- x 17 multiplier = Rs.4,08,000/-) Considering the age of the deceased and the age of the claimant, Rs.10,000/- is awarded towards the loss of consortium to claimant and she is also awarded Rs.10,000/- towards loss of love and affection. Amounts awarded by the Tribunal on other heads need not be disturbed. However, since the claimant has claimed total compensation of Rs.4,32,000/- only (Rupees four lakhs thirty two thousand only). The same appears to be just and reasonable and the same is awarded. As far as the rate of interest is concerned, the Tribunal has awarded the interest at 7.5% p.a., from the date of the petition, till the date of realization and the same appears to be reasonable. The Tribunal is directed to amend the decree accordingly. The claimant is directed to pay the fixed Court fee before drafting the decree by the Tribunal. Accordingly, this M. A.C.M.A. is allowed. No costs. ___________________ B. CHANDRA KUMAR, J. Date: 6-4-2011 Dvs THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No.2504 OF 2009 Dated 6-4-2011 [1] (2009) 6 SCC 121