Jawaji Narasagoud v. Nirmala Goverdhani Devi
THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM C.M.A.No. 4607 of 2004 J U D G M E N T :
Claimant in O.P. No. 10 of 2000 on the file of the Motor Accidents Claims Tribunal - cum - I Additional District Judge at Nizamabad is the appellant herein.
The above-said O.P. was filed claiming compensation of Rs.2 lacs for the injuries and disability suffered by the appellant in a motor accident occurred on 01.10.1999 at Dharmaram Village Shivar of Nizamabad District. On the fateful day, while the appellant was going on his scooter bearing Registration No. AP 25 D 2716, one lorry tanker bearing Registration No. AP 23 T 3411, owned by the 1st respondent and insured with the 2nd respondent Insurance Company, driven in a rash and negligent manner, came from opposite direction with a high speed and dashed against him, due to which, himself and another person fell down and the lorry ran over them. In the process, the appellant sustained injuries to his left eye and his eye site was affected.
He also received fracture to his left hand, left shoulder, color bone, hands and legs and injuries on all over his body, for which, he underwent treatment at Government Hospital, Nizamabad. The Tribunal, taking into consideration the nature of injuries sustained by the appellant and also taking into consideration the fact that he was a toddy-tapper, in the absence of any evidence to prove his earnings, had taken Rs.1,500/- as the income per month. The Tribunal, on finding that due to the injuries, the appellant might be out of work at least for three months, awarded compensation at Rs.4,500/- towards loss of earnings, apart from granting certain amount with respect to medical expenses and other incidental charges. In all, a sum of Rs.
calculated as compensation. On the ground that the appellant did not file any document to prove that he was holding a valid driving licence at the relevant point of time and that he had also contributed to the accident to some extent, the Tribunal deducted a sum of Rs.5,000/-. Thus, a sum of Rs.20,000/- was allowed to the petitioner with proportionate costs and simple interest at 9% per annum from the date of petition till realization. Learned counsel for the appellant contends that the Tribunal, relying on the evidence of P.W.2 doctor, who had categorically stated that the appellant suffered 50% permanent partial disability, ought to have been generous in awarding compensation. The Tribunal erred in deducting Rs.5,000/- for the alleged 'contributory negligence' on the part of the appellant, which is contrary to the contents of the First Information Report, is the vehement contention of the learned counsel.
Heard learned Standing Counsel for the Insurance Company. Perused the material on record. The facts are not disputed. The Tribunal under the head 'loss of earnings', in the absence of any evidence to prove the earnings of the appellant as a toddytapper, had taken his income, at an average, as Rs.1,500/- per month. Normally, it would be difficult for a toddy-tapper to produce any documentary evidence as regards his earnings, as it is the common knowledge that the work of toddy-tapping is based on skill, which requires the individual to be fit and strong to be able to climb the palmyrah trees. In this context, it is to be seen that G.O.Ms.No. 71, dated 16.04.1991 notified the minimum wage of a toddy-tapper, at the relevant point of time, as Rs.945/- with Variable Dearness Allowance (VDA) Rs.1,233/-. In the absence of any evidence, it can safely be presumed that the appellant was
getting at least minimum wages and the same can be taken as a parameter for assessing the compensation in the present case. It is also the common knowledge that the toddy-tapping would be restricted for few hours, leaving much of the time for a labourer to earn additional amounts working as a field labourer or by undertaking any other activities. Taking all these aspects into consideration, it can reasonably be said that the appellant could be earning at least Rs.2,500/- per month. Since the amount under the head 'loss of earnings' was calculated by the Tribunal for a period of three months, the same can be estimated for three months at Rs.7,500/- (Rs.2,500/- x 3) instead of Rs.4,500/-. With respect to other charges, though the learned counsel for the appellant pleads that meagre amount has been awarded, this Court is of the opinion that the amount has adequately been awarded and hence, there is no requirement to interfere with the same.
As regards the contributory negligence, though it was recorded that the appellant was driving the vehicle without holding a valid licence, the fact, however, remains that the accident occurred on account of the negligence on the part of the driver of the lorry and not on account of the riding of the scooter by the appellant. In that view of the matter, deduction of Rs.5,000/-on the ground of there being 'contributory negligence' cannot be sustained. In those circumstances, the deducted amount of Rs.5,000/- also will have to be added to the compensation amount. Accordingly, the compensation amount shall stand enhanced by Rs.8,000/-, which will come to Rs.28,500/-. The amount of compensation shall carry simple interest, as awarded by the Tribunal, from the date of the petition till realisation.
In the result, the Appeal is partly allowed. No costs. Consequently, the miscellaneous Applications, if any shall stand disposed of.
____________________________ CHALLA KODANDA RAM, J 20th December 2017 ksld