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Government of Andhra Pradesh Vs. K. Padma Rani and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 386 of 1972
Reported inAIR1976AP122
ActsMotor Vehicles Act, 1939 - Sections 110-AA and 110-D; Workmen's Compensation Act, 1923
AppellantGovernment of Andhra Pradesh
RespondentK. Padma Rani and ors.
Appellant AdvocateSardar Ali Khan, Adv. and ;Govt. Pleader for General Administration Dept.
Respondent AdvocateN.V.B. Sankarrao, Adv.
(i) motor vehicles - quantum of compensation - sections 110-aa and 110-d of motor vehicles act, 1939 and workmen's compensation act, 1923 - government servant met with an accident while traveling on government vehicle and died - widow of deceased claimed compensation - tribunal awarded compensation - writ petition challenging quantum of damages awarded by tribunal - calculation of compensation depends upon two factors life expectancy of deceased and earning capacity - compensation computed as per test laid down by court - held, compensation awarded by tribunal was not excessive - petition dismissed. (ii) vicarious liability - sections 110-aa and 110-d of motor vehicles act, 1939 and workmen's compensation act, 1923 - whether state involved in construction of dam can be vicariously liable.....raghuvir, j. 1. this civil miscellaneous appeal and cross-objections are filed against the decree and judgment of the learned additional district judge and motor accidents tribunal, kurnool in m.v.o.p. no. 11 of 1969 dated 5th january 1972. the 3rd respondent, namely, the government of andhra pradesh, is the appellant herein.2. on 6-12-1968, m.veer naidu, the 3rd respondent in this appeal was driving a tipper vehicle no. apv 4276, loaded with jelly, and was proceeding towards srisailam dam site. at k.m. stones 3/6 and 3./5 on ghat road at the second turning he was proceeding at high speed and came across a jeep. apq no. 2208. the 4th respondent, shaik salam was at the wheel. in this jeep late k. sreerammurthy, a junior engineer of the p.w.d. janakiramaiah, an assistant engineer, chalasani.....

Raghuvir, J.

1. This Civil Miscellaneous Appeal and Cross-objections are filed against the decree and judgment of the learned Additional District Judge and Motor Accidents Tribunal, Kurnool in M.V.O.P. No. 11 of 1969 dated 5th January 1972. The 3rd respondent, namely, the Government of Andhra Pradesh, is the appellant herein.

2. On 6-12-1968, M.Veer Naidu, the 3rd respondent in this appeal was driving a tipper vehicle No. APV 4276, loaded with jelly, and was proceeding towards Srisailam Dam site. At K.M. Stones 3/6 and 3./5 on Ghat Road at the second turning he was proceeding at high speed and came across a jeep. APQ No. 2208. The 4th respondent, Shaik Salam was at the wheel. In this jeep late K. Sreerammurthy, a junior Engineer of the P.W.D. Janakiramaiah, an Assistant Engineer, Chalasani Rangarao, a supervisor and one P.V.Ramaniah and some others were proceeding towards Srisailam colony for their lunch after working at the Dam site. The jeep was negotiating upgradient at that spot.

3. After seeing the jeep, the 3rd respondent swerved his vehicle suddenly from the middle of the road to the left side, and in so doing, the rear side of the tipper hit the jeep on this rear right side. As a result of this collision Shri Ramamurthy sustained extensive injuries. One of his fractured bones penetrated into his lungs and caused his instantaneous death. The 3rd respondent even after the accident, did not stop the vehicle. However, i.e. deceased was taken to the Government Hospital at Srisailam Project Colony, where he was pronounced as dead.

4. M.V. Naidu, the 3rd respondent was prosecuted for rash and negligent driving and convicted under Section 304-A I.P.C. in Cril. Case No. 35/69 on 29-6-1969 and was sentenced to undergo R.I. for one year.

5. Mrs. K. Padmarani, is the widow of late K. Ramamurthy, and Miss Bramarasri is his minor daughter. They filed a claim against the respondents for damages amounting to rupees one lakh. The Tribunal in its order dated 5-1-1972 awarded a sum of Rs. 25,000 and costs to the claimants. As stated earlier, the State of Andhra Pradesh filed this appeal alleging that the amount awarded is excessive. The claimants filed the Cross-Objections on 17-2-1973 for a sum of Rs. 75,000 against the disallowance of the claim made before the Tribunal. It appears, the claimants having filed this claim on 24-11-1969 under Motor Vehicles Act also filed on 20-5-1970 a claim under the Workmen's Compensation Act (Act 8 of 1923).

6. The following three points have been argued before the Tribunal and the same contentions are reiterated before us; (i) It was argued that the two dependents of Sree Ramamurthy filed Ex. B-2, the claim petition before the Commissioner for Workmen's Compensation for a sum of Rs.10,000. This claim in Ex. B-2 came to be dismissed for default on 26-9-1970. Therefore, it was argued that the present claim under Motor Vehicles Act is barred as the claimants had pursued their remedy under Workmen's Compensation Act, (ii) The two vehicles APV 4270 (tipper) and APQ No. 2208 (Jeep) were owned by the State of Andhra Pradesh. For rash and negligent driving, the State of Andhra Pradesh could not have been made liable inasmuch as for any tortious act, the State is immune from liabilities. This is elaborated stating these two vehicles were working at Dam site of Srisailam Project, a State Undertaking partaking the character of a sovereign act, (iii) the third contention raised was about the quantum of compensation. It was argued that the claimants were not entitled to more than Rs. 10,000 as contemplated under the Workmen's Compensation Act. It is further argued that the claimants are not entitled to a sum of Rs. 25,000 while the respondents in the Cross-objections argued that the Tribunal while granting Rs.25,000 unjustly disallowed a sum of Rs.75,000.

7. Regarding the accident, the Tribunal found that 3rd respondent was driving vehicle APV 4270 (tipper) in a rash and negligent manner and his negligence caused the collision and the death of the deceased. It is not seriously argued before us that in driving the tipper, there was no negligence on the part of the 3rd respondent. Therefore, we affirm the finding of the Tribunal on this aspect of the matter.

8. About the claim under the Workmen's Compensation Act, we may note, by Act 56 of 1969 Section 110-AA was introduced in the Motor Vehicles Act, which reads thus :--

'110-AA. Option regarding claims for compensation in certain cases :-- Notwithstanding anything contained in the Workmen's Compensation Act 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may claim such compensation under either of those acts but not under both.'

The two dependents of Sriramamurthy, first filed their claim under the Motor Vehicles Act on 24-11-69 and later filed their claim under Workmen's Compensation Act. Realising that they cannot claim compensation under both the Acts, they did not pursue the matter before the Workmen's Compensation Act and on 26-9-1970 their claim in Ex. B-2 was dismissed for default. In view of Section 110-AA of the Motor Vehicles Act the present claim, which was also earlier in point of time, we hold, is not barred. In view of the matter, we see no force in the first contention of the appellants.

9. What is seriously argued before us the learned Government Pleader in support of his second contention is Srisailam project is a State Undertaking, which partakes the character of a sovereign act. Therefore, placing reliance upon decisions in Krishnamurthy v. State of Andhra Pradesh, : AIR1961AP283 and Kasturi Lal v. State of U.P. : (1966)IILLJ583SC . It is argued that where acts are referable to the exercise of sovereign powers delegated to public servants and acts committed by public servants in the course of discharging such duties even if they are negligent a citizen cannot maintain a claim for damages against the State for such tortious acts, as in law, the State is immune from such claims. However, it is accepted, if the tortious acts has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie.

10. It is argued, Srisailam Hydro Electric Project where the deceased was employed as a Junior Engineer, the State was discharging a sovereign function. Regarding this Project, the Tribunal held 'the construction of Srisailam Dam site is not a statutory act, so as to warrant an inference that the construction in question is referable to sovereign powers'. The lower court further found 'the construction of the project is an undertaking (or activity entered into) by the Government in pursuit of its welfare ideal and as such is not an activity in which the exercise of sovereign power is involved.' So far as the character of this work is concerned, nothing is argued before us as to why the construction of Srisailam Hydra Electric Project should be construed as a sovereign act, except merely stating the Government is pursuing this project as a Governmental or sovereign function. In the absence of any material, it is not possible for us to disagree with the finding given by the Tribunal though we may not wholly approve the reasoning given by it.

11. In a recent case, the Supreme Court had to consider the aspect of sovereign function and a welfare activity in Shyam Sundar v. State of Rajasthan : [1974]3SCR549 where the State of Rajasthan was engaged in famine relief work, and the Supreme Court stated that famine relief work is not a sovereign function of the State as it has been traditionally understood and it is a work which can be and is being undertaken by private individuals. 'There is nothing peculiar about it so that it might be predicted that the State alone can legitimately undertake the work.'

12. That apart, we find Section 110 (1) of the Motor Vehicles Act, states, a State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involved the death of, or bodily injury, to persons arising out of the use of motor vehicles or damages to any property of a third party so arising or both. Section 110-B in so far as it is material , reads thus :

'110-B: Award of the Claims Tribunal ............ the claims Tribunal shall, after giving parties an opportunity of being heard, hold an inquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid ..............'

Rules have been made pursuant to power under Section 110. Rule 530, Clause (20 provides for 'Appropriate action against the driver and the owner f the vehicle is concerned' that mans, the owner and the driver also mentioned, as being persons who are liable not only for damages but also for criminal prosecution.

13. As per Article 300(1) of the Constitution of India, the Government of India may sue or be sued by the name of the Union of India and likewise, the State Government may sue or be sued by the name of the State, and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted. Therefore, after the amendment of Section 110 of the Motor Vehicles Act by the amending Act, 100 of 1956, which came into force on 16-2-1957, the Parliament has, in categorical terms by introduction of these sections, stated that if, while driving a motor vehicle (which includes a vehicle owned by the State Government or by the Government of India) the owner of the vehicle is liable to pay compensation to the persons who are entitled to claim damages. In other words, Section 110 and the Rules made thereunder, expressly make every owner of the vehicle, including the Government liable for the tortious acts of its servants while driving the vehicle. Therefore, after the amending Act 100 of 1956, by which Section 110A of the Motor Vehicles Act has been inserted, the distinction of sovereign and non-sovereign acts of the State no longer exists as all owners of vehicles are brought within the scope of this section. Whether the State is bound by the provisions of the Act is no longer res integra. In earlier cases, including the case in Province of Bombay v. Municipal Corporation of the City of Bombay (AIR 1947 PC 34) it was held unless it is specifically exempted, the rule of construction was that the State is not liable. This decision in Province of Bombay v. The Municipal Corporation of the City of Bombay (AIR 1947 PC 34) came to be approved in Director of Rationing and Distribution v. Corporation of Calcutta (AIR 1960 SC W.B. v. Corporation of Calcutta (AIR 1057 SC 997) reversed this rule of construction. In that judgment, the legal position in England was referred to as follows:

'The substantive rule of law is that the prerogative of the Crown an only be taken away by law. The rule of constructions evolved by the courts to ascertain the legislative intention is, that it is presumed that a statute has not taken away the prescriptive right unless it has expressly or by necessary implication done so.'

Referring to the earlier judgments of the Supreme Court, Subbarao, C.J. in paragraph (12) of the Report observes as follows:---

'........... A careful study of these decisions that all of them related to particular prerogatives of the Crown and that the court held either that the prerogative of the Crown was taken away by the statute or not, having regard to the construction placed by it on the relevant statute. It is true that in some of the decisions the said rule of construction was noticed, but as the decisions turned upon the construction of the relevant provisions, it could not be said that the said rule had been accepted as an inflexible rule of construction by the Bombay High Court. In one of the judgments even the applicability of the rule of construction was doubted.'

After considering some of the American cases, the learned Chief Justice observed thus :---

'Wherever an exemption was intended to be given to the Government it was expressly mentioned and wherever there might have been any doubt of the liabilities of the Government, it was expressly made liable. The rule of construction was not statutorily recognised either by incorporating it in different Acts or any General Clauses Act; at the most, it was relied upon as a rule of general guidance in some parts of the country.'

and finally stated as follows:--

'............ the normal construction, namely, that the general Act applies to citizens as well as to State unless it expressly or by necessary implication exempts the State from its operation, steers clear of all the said anomalies. It prima facie applies to all States and subjects alike, a construction consisted with the philosophy of equality enshrined in our Constitution. This natural approach avoids the archaic rule and moves with the modern trends. This will not cause any hardship to the State. The State can make an Act, if it chooses, providing for its exemption from its operation. Though the State is not expressly exempted from the operation of an Act, under certain circumstances such an exemption may necessarily be implied. Such an Act, provided it does not infringe fundamental rights, will give the necessary relief to the State. We, therefore, hold that the said canon of construction was not 'the law in force' within the meaning of Act 372 of the Constitution and that in any event having regard to the foregoing reasons the said canon of construction should not be applied for construing statutes in India. In this view it is not necessary to express our opinion on the question whether the aforesaid rule of construction would not apply to the trade activities of the State, even if it applied to its sovereign activities.'

Therefore, basing upon this rule of construction even if the motor vehicle is to be owned by the State Government and should there be any tortious act like rash and negligent driving by a public servant, the claim of the citizen cannot be resisted on the ground that the tortious act was committed by the State Government employees or the public servants, while State was pursuing a sovereign function.

14. The next question that is argued by the learned Government Pleader is that the award of Rs.25,000 by way of damages to the claimants is excessive. Before we advert to the quantum of compensation, we shall advert to the preliminary objection raised by the learned Government Pleader with regard to the maintainability of the cross-objections in support of what he relied upon a judgment of this court in C.M. As Nos. 493 and 494 of 1972, : AIR1974AP310 , wherein the learned single Judge held that cross-objections are not maintainable in an appeal fled under Section 110-D of the Motor Vehicles Act.

15. The relevant portion of Section 110-D of the Motor Vehicles Act is as follows:

'110-D. Appeals: (10 subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims tribunal may, within ninety days from the date of the award prefer an appeal to the High Court.'

While there is an appeal provided to the High Court nothing further is stated about the procedure in this section.

16. In National Telephone Co. Ltd., v. Postmaster General, (1913) AC 546 dealing with a similar objection as regards the maintainability of an appeal, the House of Lords held :--

'When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decisions likewise attaches.'

These observations of the House of Lords were relied on by the Privy Council in Adaikappa Chettiar v. Chandrasekhara Thevar, (AIR 1948 PC 12) wherein it was said :--

'Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a social statute which does not, in terms confer a right of appeal.'

17. Under Madras Forests Act, when a similar question arose the Full Bench of the Madras High Court in Kamaraju v. Secy., of State for India ( ( 1888( ILR 11 Mad 309) (FB) held, where an appeal was preferred to the District Court against the decision of the Forest Settlement Officer under Section 10 (2) the appeal is preferred to the District Court as one of the ordinary courts of the country with regard to whose procedure, order and decree the ordinary rules of Civil Procedure Code would apply. The Privy Council in Secretary of State for India v. Chellikani Ramarao (AIR 1916 PC 21) adverting to similar objection, stated thus :--

'It was contended on behalf of the appellant that all further proceedings in courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships' opinion this objection is not well funded. Their view is that when proceedings of this character reach the District Court, that court is appealed to as one of the ordinary courts of the country, with regard to whose procedure, orders and decrees the ordinary rules of Civil Procedure Code apply.'

18. In N.S. Thread Co v. James Chadwick & Bros Ltd. : [1953]4SCR1028 the Supreme Court construing Section 76 of the Trade Marks Act, 1940 where a right of appeal is directed to the High Court and nothing more is stated, observed :

'That being so, the High Court being seized of such of the appellate jurisdiction conferred by Section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under clause 10 of the Letters of Patent there being nothing to the contrary in the Trade Marks Act.'

A similar objection about the maintainability of cross-objections arose in the Madhya Pradesh High Court at Jabalpur in Manjula Devi Bhuta v. Manjusri Raha (1965 ACJ 1) where it was held at page 13 of the report, as follows :

'We are of the opinion that as soon as this court becomes seized of an appeal, even where an appellate jurisdiction is conferred under a special statute, the rules of practice and procedure of the court applicable in a civil appeal will, in the absence of any specific rule to the contrary govern such appeal.

19. The decisions in Secy., of State for India v. Chelikani Ramarao (AIR 1916 PC 21) and N.S. Thread Co., v. James Chadwick and Bros. : [1953]4SCR1028 were relied upon by the Madhya Pradesh High Court.

In Delhi Transport Undertaking v. Raj Kumari (1972 ACJ 403)the Delhi High Court adverting to similar objection followed the decision of Madhya Pradesh High Court in Manjula Devi Bhuta v. Manjusri Raha (1968 ACJ 1) and held :--

'As soon as the High Court becomes seized of an appeal, even where an appellate jurisdiction is conferred under a special statute, the rules of practice and procedure of the said court become applicable to the appeal unless there is any specific rule to the contrary in the special statute.'

In W.S. Bhagsingh and Sons v. Om Prakash Kaith (1971 ACJ 324) the Delhi High Court, following their earlier decision, observed thus :

'The learned counsel for the respondents had not been able to cite any decision contra to the one cited by the learned counsel for the petitioners and which would support his own contention. The practice in this court also appears to permit the filing of cross-objection when appeals are filed against judgment of the Tribunal. I, therefore, hold that the cross-objections filed by the petitioners are maintainable.'

In the Union Co-operative Insurance Society Ltd., Madras v. Lazarammal Ravel, : AIR1974Mad379 a Division Bench of the Madras High Court has taken similar view and held :--

'4. Regarding the cross-objection, two preliminary objections were raised. The first is that the appeal being one arising under a special statute, and the Civil Procedure Code, not being applicable to the Tribunal constituted under the said statute, viz. The Motor Vehicles Act, no cross-objection can be filed. It is pointed out that under Section 110-D though there is provision for any of the aggrieved persons to file appeal, there is nothing in the section permitting a respondent to file cross-objections.

5. In support of this contention, three decisions were relied on. The first is Vedantacharsami v. Sri Muthiah Chetty ( (1955) 68 Mad LW 66)............. 'Under Section 110-D of the Motor Vehicles Act, an appeal lies to this court. It must be remembered that when once an appeal is entertained by this court, all the provisions relating to the appellate jurisdiction of this court are attracted. It is true that all the provisions of the Civil Procedure Code are not applicable to the Tribunal, because it is a creature of the statute, but the appeal against the order of the Tribunal is to the High Court not to any other Tribunal constituted under the Statute. In Secy., of State v. Ramarao,. ILR 39 Mad 617 = 43 Ind App 192 = 31 Mad LJ 324 = (AIR 1916 PC 21) the question was whether the ordinary rules of the Civil Procedure Code, would apply to an appeal to the District Court against the decision of the Forest Settlement Officer under Section 10 (2) of the Madras Forests Act. The Privy Council pointed out that the appeal being to the District Court which is one of the ordinary courts of the country, the ordinary rules of the Civil Procedure Code, apply'................

'As we pointed out earlier, Section 110-D of the Motor Vehicles Act contemplates an appeal to the High Court. Once an appeal is entertained by this court, all the rules in the Civil Procedure Code would be applicable to such an appeal inasmuch as no other procedure is prescribed under the said Act. That means Order 41, Rule 22, Civil Procedure Code would be applicable and the respondent in an appeal would be entitled to present a memorandum of cross-objections as provided under the said rules. Venkataraman J., in disposing of Venkatesan v. Ranganayaki (A.A.O. No. 162 of 1972) (Mad) has taken a similar view and we agree with the same.'

Therefore, we are of the opinion that there is no substance in the preliminary objection raised by the learned Government Pleader and we hold following N.S. Thread Co., v. James Chadwick and Bros, : [1953]4SCR1028 and the other decisions referred to earlier that the cross-objections are maintainable.

20. The next question that is to be determined is the quantum of compensation that is payable to the claimants. The two points to be borne in mind as regards the compensation are (i) the life expectancy of the deceased and (ii) the income of the deceased at the time of the accident.

21. These two aspects have been very lucidly stated in Nance v. British Columbia Electric Co. Ltd. (1951 AC 601 at p. 614) and approved by the Supreme Court in Gobald Motor Service v. Veluswami : [1962]1SCR929 .

22. In a second judgment of this court in the Hindustan Ideal Insurance Co., v. Pokonti Ankaiah, (1972-1 Andh Pra LJ 47) the Division Bench consisting of Gopal Rao Ekbote, J., (as he then was) and one of us (Ramachandra Rao, J. ) at page 70 of the Report held thus :--

'The law on the question as to how in a case such as the present damages should be determined is clear. The plaintiff is entitled to such a sum as will make good to him the financial loss which, he has suffered and will suffer as a result f the death of his son. In calculating the pecuniary loss to the dependents many imponderables, however, enter into the calculations. Broadly stated the principle is that the pecuniary loss should be ascertained by balancing, on the one hand the loss to the claimants of the future pecuniary advantage which from whatever source comes to them by reason of the death, i.e., the balance of loss and gain to a dependent by the death must be ascertained. It is, however, clear that future loss is necessarily conjectural. It is necessarily compounded by prophesy and calculation. If all has gone well, the deceased son would have earned larger sums for a longer period so that he could have maintained the father and other dependents at least at their standard of living at the time of his death and made other provisions for their future. But, all may not have gone well. Any of them might have died prematurely, he might not have been able to earn larger sums and other misfortunes might have occurred. So allowance must be made for this. In such circumstances what the court can do best is to arrive at a figure on a reasonable balance of the probabilities avoiding undue optimism as well as undue pessimism.'

23. Sri N.V.B.Sankarrao, the learned counsel appearing for the respondents in this appeal, in support of the cross-objections, states that so far as the life expectancy of the deceased is concerned, the lower court estimated that he would have ordinarily lived up to an age of 60 years and to this finding he does not raise any objection.

24. In view of this, the only other question that is to be considered is as regards the income of the deceased at the time of his death. The deceased as a Junior Engineer had basic pay of Rs. 265 and was drawing Rs. 137 towards D.A. Since he was working at a project area, he was given an allowance of Rs.54 by way of Unhealthy Locality Allowance and an additional sum of Rs. 30 as compensatory allowance. Thus in all he was getting Rs. 486. The counsel for the claimants would state that out of Rs.486 it is ordinarily expected that a sum of Rs. 162 that is about one-third, would be spent on the deceased himself. Therefore, the balance of Rs. 324 (Rs. 486 minus Rupees 162) should be considered as his monthly income of the deceased's family. Rammurthy dies at the age of 31 years. He would have served in the Government department for a period of 24 years, and earned ordinarily---Rs. 93,312 (i.e. Rupees 324 ( 12 (months) ( 24 years and, for the period between 55 years and 60 years, he would have had a pension of one-third of what he would have received, that is one third of Rs. 324 which is Rs. 108 ( 12 (months) ( 5 years = Rs. 6,480. The learned counsel would add Rs.93,312 plus Rs. 6,480 and state the claimants are entitled to Rs. 99,792 by way of damages. That is how the cross-objections for Rs.75,000 is sought to be justified over and above the sum awarded in the sum of Rs. 25,000 by the Tribunal. We have, in the earlier portion of this judgment, stated, the State Government has filed this appeal, stating that what is awarded is excessive and the claimants ought to have been given only a sum of Rs. 10,000.

25. In regard to the Unhealthy Locality Allowance of Rs. 54 and Compensatory allowance of Rs. 30 which was payable to the deceased as he was working at Srisailam Dam site, it is not possible to state, ordinarily he would have remained posted at the Dam site for long. Therefore we are of opinion that the Unhealthy Locality Allowance and the Compensatory Allowance are to be excluded from the income of the deceased. Therefore, in ascertaining the income of the deceased, these two counts, totaling Rs. 84 will have to be excluded from Rs. 486. Thus, we consider the salary of the deceased was his basic pay of Rs. 265 plus his D.A. of Rs. 137 that is Rs. 402 and ordinarily we expect him to spend half of the amount on himself and the balance on his dependents, that would be about Rs. 200 on the dependents i.e. claimant-respondents.

26. Regarding pension, it must be stated that under Death-cum-Retirement Scheme, the wife of the deceased is being paid by the appellant Rs. 50 and the child of the deceased Rs. 13 per month. It is stated by the learned counsel for the respondents, ordinarily, one third of the salalry would be the pension amount payable to the Government servants. If worked out that would amount Rs. 135 and half of that amount is Rs. 65 which amount the State Government is paying to the claimants. Therefore, for the five years after retirement, that is 55 years, nothing is payable so far as the dependents are concerned, as the appellants are paying under the Death-cum-retirement Scheme.

27. Thus, out of Rs. 402 the income of the deceased half the amount the deceased would have spent on the claimants, and if Rs. 63 are to be deducted from that half, it comes to roughly about Rs. 138 per month. Therefore, the compensation payable is Rs. 138 ( 12 (months) ( 24 years = Rs.39,746. Out of the said amount, since the accelerated payment by way of lump sum is being made, the interest which the amount would earn, has to be deducted. As a prudent man, if the claimant deposits the said amount in a Bank in a fixed deposit account for a long period, he would easily get interest thereon at 6% pr annum. So calculated it comes to Rs. 2,385. If this amount of interest is deducted the amount of compensation payable comes to Rs. 37,361. Rounding it reasonable to award a sum of Rs.38,000 as and by way of damages to the claimants.

28. In the above view, the C.M.A. is dismissed and in the circumstances we award no costs. Cross-objections to the extent of Rs. 13,000 over and above Rs. 25,000 is also allowed, but, in the circumstances, there will be no order as to costs.

29. Appeal dismissed.

30. Cross-objections allowed in part.

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