Point of Law: Compensation is usually based upon the loss of the claimants’ dependency or earning capacity of the deceased. The courts have time and again observed that the compensation to be awarded is measured by the nature, avocation or degree of injury or loss of income by the deceased.

ORDER :

1. The present Appeal is filed by the Claimants under Section 173 of the Motor Vehicles Act, challenging the Order, dated 18.05.2007, passed in O.P. No. 39 of 2005 by the learned Principal Motor Accident Claims Tribunal (District Judge, Nellore), wherein, the application filed by the Petitioners under Section 166 of the Motor Vehicles Act, seeking compensation of Rs. 5,00,000/- due to death of Syed Ahamad Basha [the ‘deceased’] was dismissed.

2. The averments, in the claim petition, are as under:-

(i) The Claimant No. 1 and 2 are said to be patents of the deceased, while, Claimant No. 3 to 5 are sister and brothers of deceased. The 1st Respondent is the owner and the 2nd Respondent is the insurer of the offending vehicle.

(ii) According to Claimants, the deceased was working as a Goldsmith under a Gold Merchant in Nellore and earning Rs. 200/- per day. It is said that, on 01.09.2004 at about 12.30 PM, when the deceased was lying in-front of the R.R. Channel near D.S.R. Government Headquarters Hospital, Nellore, a Van bearing No. AP-31/W-8218 [vehicle] driven by its driver in a rash and negligent manner at high speed, hit the deceased and ran over his legs. The deceased was aged about 25 years and he died while undergoing treatment in the hospital.

(iii) The 1st Respondent remained ex-parte, while 2nd Respondent filed counter denying the age, avocation and income of the deceased and also the relationship of the Appellants with the deceased.

3. On the basis of the above pleadings, the Tribunal framed the following Issues:-

(i) Whether the accident occurred out of the use of the motor vehicle bearing Registration No. AP-31/W-8218 of respondent No. 1?

(ii) Whether the petitioners are entitled to compensation? If so, to what amount and from which of the respondents?

(iii) To what relief?

4. In support of its case, the Appellants examined PW-1 to PW-3 and got marked Ex.A1 to Ex.A7, while, no oral evidence was adduced on behalf of the Respondent No. 2 except marking Ex.B1 - a copy of the insurance policy.

5. After considering the evidence available on record, the Tribunal held that the material on record, more particularly, the inquest report discloses that the deceased was mentally unsound and was begging for his livelihood. It was held that, the deceased was a beggar and mentally derailed and practically he was deserted by his parents and brothers, as none of the family members came at the time of inquest to identify the body and even the family members of the deceased did not claim the dead body, as the post-mortem report shows that, post-mortem examination was conducted on the body of an unidentified person. The court held that, there is a serious dispute with regard to the relationship between the deceased and the Appellants. In the absence of any evidence to show that the deceased was working under a Gold Merchant, the Trial Court disbelieved the evidence of PW-1 as it falsifies the documentary evidence and accordingly dismissed the O.P. Challenging the same, the present Appeal came to be filed.

6. The learned Counsel for the Appellants mainly submits that the Trial Court totally erred in dismissing the application. He submits that, the findings of the Trial Court that the deceased was a beggar is erroneous, since, the deceased had a passport, which was issued to him on 30.01.1990. The charge-sheet, which has been filed by the Police after due investigation clearly indicate that the deceased is son of PW-1. The allegation that none claimed the body is false as the charge-sheet indicate that the father [PW-1] claimed the body.

7. On the other hand, the learned Counsel appearing for the insurance company would contend that, if really the deceased was having passport and if really the Appellant No. 1 and 2 are his parents, no explanation is forthcoming as to why the deceased was living by begging and why none came after the death of the deceased to claim the body or at-least be present when the post-mortem examination was conducted. Ac