Telangana High Court
CMA/820/2005 of The National Insurance Company Limited, Vs Smt. J.Yellamma on 29 December 2009
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.
IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:HYDERABAD(Special Original Jurisdiction)
TUESDAY, THE TWENTY NINTH DAY OF DECEMBERTWO THOUSAND AND NINE
PRESENT:
THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY
CIVIL MISCELLANEIOUS APPEAL No.820 OF 2005
BETWEEN:
The National Insurance Company LimitedRep. by its Branch Manager, D.No.15/466,Gosha Hospital Road, Adoni, Kurnool
AND
…. Appellant
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
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JUDGMENT:
This Civil Miscellaneous Appeal is directed against the orderdated 22-06-2005 in W.C. No.208 of 2004, wherein the claim ofrespondent Nos.1 and 2 herein was allowed in part awardingcompensation of Rs.2,60,439/-.
2. Heard the learned counsel for the appellant. None appearedfor the respondents – applicants. Perused the record.
3. Respondent Nos.1 and 2 herein filed the claim applicationseeking 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 wasworking as cleaner in the lorry bearing No.AP9U 2453 belonging torespondent No.3 herein and insured with the appellant herein. On 26-08-2004, the deceased loaded fruits into the lorry at Uddamarrivillage and was proceeding towards fruit market, Kothapet and thelorry met with an accident at about 3-45 AM resulting in the death ofthe deceased on the spot. A case in Crime No.656 of 2004 wasregistered by the Police at Saroornagar. Respondent Nos.1 and 2further submit that the deceased was aged about 19 years and wasearning 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 counteraffidavit denying their liability to pay compensation.
5. Respondent Nos.1 and 2 were examined as AWs.1 and 2and Exs.A-1 to A-10 were marked on their behalf. No oral evidencewas adduced by the appellant - Insurer and Ex.D-1 copy of theinsurance policy was marked.
6. On consideration of the evidence available on record, thelearned Commissioner held that the deceased was a workman and hedied in the accident that occurred in the course of the employment ascleaner of the lorry. The said finding is not seriously disputed. Thelearned Commissioner further held that the applicants are entitled for atotal 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), dated27-07-2000.
7. The learned counsel for the appellant mainly contend thateven according to the applicants, the deceased was aged 28 years or30 year and the learned Commissioner has erroneously taken his ageas 19 years. He further submits that according to AWs.1 and 2, the deceased was earning Rs.1,000/- per month. The learnedCommissioner has taken the higher income at Rs.2,312-75 paise permonth.
8. The learned Commissioner has relied upon the inquestreport Ex.A-2 and the post mortem report Ex.A-3 in taking the age ofthe deceased as 19 years. He, however, ignored the testimony ofAW.1 the mother of the deceased who categorically stated in crossexamination that the deceased was aged around 28 years. Sheadmitted the suggestion that the deceased was aged 30 years andadded that the deceased may be aged around 28 years. The age ofthe deceased was noted as
19 years in Exs.A-2 and A-3 and it is not known on whose informationit was so recorded. When AW.1 the mother of the deceased herselfhas stated that the deceased was aged 28 years and she being themost competent witness to testify to the correct age of the deceased,the Tribunal ought to have taken her evidence into considerationinstead of going by the age as noted in Exs.A-2 and A-3 and therebeing no basis of such recording of age as 19 years when the age ofthe deceased is thus taken as 28 years as stated by AW.1, the suitablemultiplying factor would be 211.79 instead of 225.22 applied by theCommissioner.
9. Regarding the income of the deceased, though AW.1 statedthat the deceased was earning Rs.1,000/- per month, as perG.O.Ms.No.30, dated 27-07-2000 the basic wage of a cleaner isRs.1,437/- per month and the V.D.A. payable is Rs.875-75 paise andthus, the total wage comes to Rs.2,312-75 paise. The deceased,working as a cleaner, certainly has the potentiality to earn theminimum wage as prescribed under G.O.Ms.No.30, irrespective of theamount said to have been paid to the deceased by his employertowards 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 theminimum wage of Rs.2,312-75 paise and taking 50% thereof intoconsideration, 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.500towards 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 statedabove. There shall be no order as to costs.
____________________
G.V.
SEETHAPATHY, J
December 29, 2009KTL