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Judgment
K. Bhakthavatsala, J.—The appellants are the mother, brother arid sister of the deceased Srishailachari, They are before this Court challenging the Judgment and Award dated 01.04.2005 made in MVC No. 238/2002 on the file of Additional Civil Judge (Sr. Dn.) and Additional MACT. Bangalore Rural District. Bangalore.
The brief facts of the case leading to the filing of this appeal may be stated as under:
The deceased Srishailaehari while travelling as a cleaner in Nandini Milk Tanker lorry bearing No. KA-04/B-9459 at about: 0.15 p.m., and when the lorry was in front of Sharma Service Station at. Imangalagrama. N.H. 4. due to rash and negligent driving by its driver it went and dashed against the road side tree. As a result of which the cleaner sustained fatal injuries and died. The parents, brother and sister of the deceased Srishailachari filed a Claim Petition claiming compensation of Rs. 4,45.421/- with interest at the rate of 12% per annum before the Commissioner, Workmen''s Compensation and it was registered as dispute No. CWC-8/FC/CR/26/2003. The parents of the deceased also filed a Claim Petition u/s 166 of the Motor Vehicle Act, 1988 seeking grant of compensation of Rs. 14,00.000/- from the owner and insurer of the lorry in which the deceased was travelling as a cleaner, The Insurance Company filed objections denying the averments of the Claim Petition and taken the contention that since the claimants have already filed a dispute under Workmen''s Compensation (vide Para No. 6 of the Statement of Objections filed by the Insurance Company), the claimants are not entitled for compensation and prayed for dismissal of the same. As a matter of fact by filing memo for withdrawal the dispute before the Commissioner, Workmen''s Compensation was withdrawn. The Commissioner by its order dated 25.01.2005 rejected the claim as not pressed. But the order passed by the Commissioner under Workmen''s Compensation Act was not produced before the Claims Tribunal. Initially the Claim Petition was filed u/s 166 of the Motor Vehicles Act by the parents of the deceased. Subsequently, the provision of law was amended as Section 163A of Motor Vehicles Act. The father of the deceased-cleaner passed away. The other legal representatives viz., the son and the daughter of the deceased father were brought on record. The brother of the deceased cleaner has got him examined as PW1 and got marked Ex.P1 to Ex.P4. The respondents have not adduced evidence. The Tribunal rejected the Claim Petition on the ground that the claimants have made an application before the Commissioner under Workmen''s Compensation Act. Therefore, the appellants are before this Court challenging the impugned judgment and award.
Learned Counsel appearing for the appellants submits that an application under Order 41 Rule 27 of CPC has been filed seeking permission to produce the certified copy of the order sheet in CWC 8/FC/CR/26/2003 on the file of the Commissioner, Workmen''s Compensation, Bangalore. As per the certified copy of the order, the claim made before the Commissioner, under Workmen''s Compensation Act was withdrawn. Therefore, the Tribunal erred in rejecting the Claim Petition. He further submits that the claimants are entitled to maintain a Claim Petition either before the Commissioner, under Workmen''s Compensation Act or before the Claims Tribunal under the provisions of Motor Vehicles Act, 1988. Therefore, he submits that the deceased was a cleaner and earning a salary of 5000 per month. Further the Insurance Company has admitted that the lorry in question is covered under policy bearing No. 672102/31/01/09070 and valid from 20.10.2001 to 19.10.2002 and the liability of the Insurance Company is subject to the terms and conditions appended to the policy and the provisions of the Motor Vehicles Act.
There is no denial that the deceased was not a cleaner in the lorry at the time of the accident. Hence, the mother of the deceased is entitled to compensation under Workmen''s compensation Act. The liability of the Insurance Company in the case of cleaner/driver is fixed as per the provisions of the Workmen''s Compensation Act. Though, it is pleaded that the deceased was earning a salary of Rs. 5000/- per month, the same is not proved with cogent and satisfactory evidence. Hence, the salary of the deceased can be fixed at Rs. 3.000/- per month. Even in the written arguments filed the learned Counsel for the claimants in Para No. 4, it is also stated that the deceased was earning Rs. 3.000/- per month apart from Rs. 50/- per day as batta. The deceased was 23 years old. According to Schedule IV of the Workmen''s Compensation Act the relevant factor applicable is 219.95 and 50% of the monthly wages of the deceased has to be taken into account. Thus, the mother of the deceased is entitled for compensation of (Rs. 1.500/- x 219.95) Rs. 3,29,925/-. The brother and sister of the deceased are not entitled to any compensation.
In the result, the appeal is partly allowed holding that the appellant No. 1/mother of the deceased is entitled for compensation of Rs. 3,29,925/- along with statutory interest @ 12% per annum from 13.12.2001 till the date of payment as against the respondents 1 and 2 who is liable jointly and severally. The respondent No. 1/Insurance Company is directed to deposit the compensation amount along with interest ''with the Tribunal within two months from today. Out of the compensation amount awarded in favour of the appellant No. 1/mother of the deceased, she shall keep a sum of Rs. 1,00.000/- in fixed deposit, in any nationalized bank, for a period of three years and she is at liberty to withdraw the periodical interest that accrues on the deposit.