G. Vijaya And Another v. K. Hari Venkta Prasad And Another

SMT JUSTI CE T. RAJANI MACMA No.2 9 1 0 of 2 0 1 2 JUDGMENT:

This appeal is filed by the appellants, who are the claimants before the court below, assailing the judgment of the Motor Accidents Claims Tribunal-cum-Chief Judge, City Civil Courts, Hyderabad, in MVOP.No.539 of 2011, dated 03.05.2012, on the ground that the Court below ought to have considered the income of the deceased as Rs.23,328/ - in gross as their colleagues were also drawing the said income. 2.

Heard the counsel for the appellants as well as the counsel for the respondents.

3.

The case of the claimants is that the deceased was working as School Assistant Trainee in Zilla Parishad High School (ZPHS), Dudi Venkatapuram, and he was on probation and during probation he was paid stipend of Rs.4,400/ - per month and after completing two years of probation he would be absorbed as regular School Assistant with a basic pay of Rs.15,700/ - and the gross pay would be Rs.23,228/ -. In order to prove the fact that the deceased was working as a School Assistant and was on probation, the claimants examined PWs.3 and 4, who are the Mandal Educational Officer, Turkpally Mandal and Headmaster, ZPHS, Dudi Venkatapuram respectively, where the deceased was working.

4.

According to the evidence of PW3, who was then working as Headmaster of ZPHS, Madhapur and who was in full additional charge of the post of Mandal Educational officer, Turkapally, the deceased has drawn Rs.10,629/ - in September, 2009 as per the records. While working as Secondary Grade Teacher in Primary School, Dathapally of Turkpally Mandal, the deceased opted for the post of School Assistant and joined as School Assistant in ZPHS in Doodivenkatapuram of Rajampet Mandal, which is a higher grade post. He personally knows the scale of pay of a School Assistant. He stated that the gross pay of the School Assistant is Rs.21,000/ -, which he would be drawing after completing two years of probation. PW4 also corroborated the evidence of PW3 on all aspects, but according to him, the gross pay is Rs.23,228/ -.

5.

The court below, by considering the imponderables of the deceased being absorbed as a regular School Assistant as he died soon after he was appointed as a School Assistant and much before his completion of probation, was not inclined to take his income, as spoken by PWs.3 and 4. The court below also did not believe the evidence that came forth to the effect that the deceased was earning Rs.15,000/ - per month by giving private tuitions. It considered the statement of the mother as self serving. But, however, considering the evidence of PWs.3 and 4, it took the earnings of the deceased as Rs.4,400/ - per month, which is the stipend as a probationer.

6.

In the considered opinion of this court, the approach of the court below is completely far from a justifiable thought. There is ample evidence to show that the deceased had potential to be appointed as a School Assistant and there is credible evidence of PW.3 to understand that the deceased was drawing Rs.10,629/ - by working as a Secondary Grade Teacher in a Primary School. Hence, in the background of the said fact, taking Rs.4,400/ - per month as the income of the deceased is completely unsustainable. However, the evidence is also clear that the deceased was drawing only Rs.4,400/ - per month as probationer. But from the zeal of the deceased, which gets surfaced through the evidence of PWs.3 and 4, it can be understood and accepted that the deceased was making some earnings by rendering tuitions.

The person, who draws Rs.10,000/ - and odd and who foregoes the said income for the purpose of getting into an higher employment, will not be satisfied with the income, which is lower than the income which he would get earlier, and he would in all probability take up some work, which would compensate the said reduction in the income. Hence, the court below ought to have accepted at least Rs.15,000/ - per month as the income of the deceased. 7.

However, from the evidence available on record, there need not be any demur to conclude that the deceased would be earning more than Rs.20,000/ - per month. Considering the inconsistency in the evidence of PWs.3 and 4 with regard to the gross income, Rs.21,000/ - can be taken as the income that the deceased would be getting after he is regularised as a School

Assistant, as PW3, being in full additional charge of the post of Mandal Educational officer, Turkapally, can be considered as more competent person to speak about the gross income of the deceased.

8.

The deceased is stated to be aged 32 years. The multiplier relevant for the age group 30-35 years is '16' as per the ruling of the Supreme Court in SARLA VERMA v. DELHI TRANSPORT CORPORATI ON 1. Hence, even if the deceased was earning only Rs.4,400/ - per month, by the time he reaches the age of 34 years he would be earning Rs.21,000/ - per month. Hence, the same can be taken as the income of the deceased. Having arrived at the monthly income of the deceased, now the future hike in the salary of the deceased has also to be considered following the latest decision of the Supreme Court in NATI ONAL I NSURANCE CO. LTD. V. PRANAY SETHI [ Special Leave Petition (Civil) No.25590 of 2014 and batch dated 31.10.2017]. In case of Government employee, who is on permanent job, 50% is the future hike that has to be taken as per the above ruling.

After taking into consideration the said hike, the monthly gross income of the deceased would come to Rs.31,500/ -. The claimants being two in number, 1/ 3rd has to be deducted towards personal expenditure of the deceased by following SARLA VERMA's case (1 supra). Then Rs.21,000/ - would be monthly income of the deceased and Rs.2,52,000/ - would be loss of annual income to the claimants.

(1 supra) is '16'. Hence, the loss of future income to the claimants would come to Rs.40,32,000/ -.

9.

Apart from the above, following PRANAY SETHI 's case (supra), Rs.40,000/ - is awarded to the first claimant under the head loss of consortium, Rs.15,000/ - is awarded towards loss of estate and Rs.15,000/ - is awarded towards funeral expenses. Hence, in all, the claimants are entitled to total compensation of Rs.40,32,000/ - + Rs.40,000/ - + Rs.15,000/ - + Rs.15,000/ - = Rs.41,02,000/ -. Though the compensation granted exceeds the claim amount, now the law is well settled by virtue of the decision of the Supreme Court in RAJESH v. RAJBI R SI NGH 2, wherein it was held that the compensation has to be just and it can exceed the claimed amount. This Court also in ADAM I NDUR MUTEMMA v. RATHOD PEDDI TA 3 held that the compensation amount can exceed claimed amount, subject to payment of court-fee.

10.

Hence, the award of the Court below is modified, as indicated above, with proportionate costs. The claimants shall pay the differential court-fee. The compensation shall be apportioned among the claimants in the same proportion as per the award of the Court below. The award shall relate back to the date of decree and the compensation awarded shall carry the interest at the rate and from the date specified by the Court below.

2 (2013) 9 SCC 54 3 2015 (4) ALD 585 (LB)

Accordingly, the MACMA is partly allowed with proportionate costs. As a sequel, the miscellaneous applications, if any pending, shall stand closed.

_ _ _ _ _ _ _ _ _ _ T. RAJANI , J December 22, 2017 LMV