IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY NINTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY CIVIL MISCELLANEIOUS APPEAL No.820 OF 2005 BETWEEN: The National Insurance Company Limited Rep. by its Branch Manager, D.No.15/466, Gosha Hospital Road, Adoni, Kurnool …. Appellant AND Smt. J. Yellamma W/o. Sri Mareppa and Others …. Respondents THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY CIVIL MISCELLANEIOUS APPEAL No.820 OF 2005 JUDGMENT: This Civil Miscellaneous Appeal is directed against the order dated 22-06-2005 in W.C. No.208 of 2004, wherein the claim of respondent Nos.1 and 2 herein was allowed in part awarding compensation of Rs.2,60,439/-. 2. Heard the learned counsel for the appellant. None appeared for the respondents – applicants. Perused the record. 3. Respondent Nos.1 and 2 herein filed the claim application seeking compensation on account of the death of their son J. Yellappa @ Lachaiah, who died in a motor vehicle accident that occurred on 27-08-2004. According to respondent Nos.1 and 2, the deceased was working as cleaner in the lorry bearing No.AP9U 2453 belonging to respondent No.3 herein and insured with the appellant herein. On 26-08-2004, the deceased loaded fruits into the lorry at Uddamarri village and was proceeding towards fruit market, Kothapet and the lorry met with an accident at about 3-45 AM resulting in the death of the deceased on the spot. A case in Crime No.656 of 2004 was registered by the Police at Saroornagar. Respondent Nos.1 and 2 further submit that the deceased was aged about 19 years and was earning wages of Rs.3,500/- per month. 4. Respondent No.3 herein, owner of the vehicle, remained ex parte and the Insurance Company, appellant herein, filed counter affidavit denying their liability to pay compensation. 5. Respondent Nos.1 and 2 were examined as AWs.1 and 2 and Exs.A-1 to A-10 were marked on their behalf. No oral evidence was adduced by the appellant - Insurer and Ex.D-1 copy of the insurance policy was marked. 6. On consideration of the evidence available on record, the learned Commissioner held that the deceased was a workman and he died in the accident that occurred in the course of the employment as cleaner of the lorry. The said finding is not seriously disputed. The learned Commissioner further held that the applicants are entitled for a total compensation of Rs.2,61,461/- by taking the age of the deceased as 19 years and his income as Rs.2,312-75 paise being the minimum wage described for a cleaner in G.O.Ms.No.30, LET & F (Lab-II), dated 27-07-2000. 7. The learned counsel for the appellant mainly contend that even according to the applicants, the deceased was aged 28 years or 30 year and the learned Commissioner has erroneously taken his age as 19 years. He further submits that according to AWs.1 and 2, the deceased was earning Rs.1,000/- per month. The learned Commissioner has taken the higher income at Rs.2,312-75 paise per month. 8. The learned Commissioner has relied upon the inquest report Ex.A-2 and the post mortem report Ex.A-3 in taking the age of the deceased as 19 years. He, however, ignored the testimony of AW.1 the mother of the deceased who categorically stated in cross examination that the deceased was aged around 28 years. She admitted the suggestion that the deceased was aged 30 years and added that the deceased may be aged around 28 years. The age of the deceased was noted as 19 years in Exs.A-2 and A-3 and it is not known on whose information it was so recorded. When AW.1 the mother of the deceased herself has stated that the deceased was aged 28 years and she being the most competent witness to testify to the correct age of the deceased, the Tribunal ought to have taken her evidence into consideration instead of going by the age as noted in Exs.A-2 and A-3 and there being no basis of such recording of age as 19 years when the age of the deceased is thus taken as 28 years as stated by AW.1, the suitable multiplying factor would be 211.79 instead of 225.22 applied by the Commissioner. 9. Regarding the income of the deceased, though AW.1 stated that the deceased was earning Rs.1,000/- per month, as per G.O.Ms.No.30, dated 27-07-2000 the basic wage of a cleaner is Rs.1,437/- per month and the V.D.A. payable is Rs.875-75 paise and thus, the total wage comes to Rs.2,312-75 paise. The deceased, working as a cleaner, certainly has the potentiality to earn the minimum wage as prescribed under G.O.Ms.No.30, irrespective of the amount said to have been paid to the deceased by his employer towards wages. The minimum wages as prescribed in G.O.Ms.No.30, dated 27-07-200 was rightly taken into consideration by the learned Commissioner in estimating the amount of compensation payable. 10. Thus, applying the multiplying factor of 211.79 to the minimum wage of Rs.2,312-75 paise and taking 50% thereof into consideration, the amount of compensation payable works out to: Rs.2,312-75 X 50 / 100 X 211.79 = 2,44,909/- By adding the amount of Rs.522 towards stamp fee and Rs.500 towards Advocate fee, the total compensation comes to Rs.2,45,931/- . The impugned award is modified accordingly. 12. In the result, the appeal is allowed to the extent stated above. There shall be no order as to costs. ​____________________ G.V. SEETHAPATHY, J December 29, 2009 KTL