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2000 DIGILAW 495 (KAR)

A. C. SYAMALA v. DEVAKI GOPAL

2000-07-17

H.N.TILHARI, T.N.VALLINAYAGAM

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TILHARI, J. ( 1 ) THIS appeal is directed against the judgment and award dated 30. 9. 1989, delivered by the Additional district Judge/ii-Motor Accidents Claims tribunal, Chitradurga, in Motor Accident claim Case No. MVC 348 of 1986, awarding in total a sum of Rs. 3,43,000, as compensation. Claimants feeling aggrieved have come up before us by way of this appeal. ( 2 ) THE facts of the case in nutshell are that on 19. 4. 1986, one Alakanandaswamymath, alleged to be aged about 43 years at the time of death, who was the Principal of S. J. V. P. College, Harihar and Secretary of Priyadarshini Education Society at lakshmeswar, met with an accident and died there on the spot. Claimants' case is, due to the rash and negligent driving of the lorry bearing No. TNA 1749 and car bearing No. MEU 5556, the deceased met with the accident and died on the spot at 2 a. m. According to the claimants' case, on account of death of alakanandaswamymath, there was nobody to look after the family and they were left with only lands. According to claimants' case, the deceased was working as Principal and Secretary, as mentioned earlier in priyadarshini Education Society and was getting a sum of Rs. 4,000 and Rs. 2,000, from these respective institutions. The claimants made a claim in total for a sum of Rs. 9,75,000. The petitioners claimed rs. 8,40,000 towards loss of dependency and a sum of Rs. 50,000, towards general damages and mental agony, Rs. 50,000 towards special damages, Rs. 3,000 towards transportation of dead body and Rs. 2,000 towards the funeral expenses, as well as rs. 5,000 towards loss of consortium. Petitioners also claimed towards future maintenance of the deceased's mother, a sum of Rs. 25,000. ( 3 ) OBJECTIONS were filed on behalf of the opposite parties, namely, on behalf of the respondents denying the allegation that there was any negligence of their respective vehicles. It was alleged that it is false to assert that on 19. 4. 1986, at 2 a. m. , near lakshmisagar Gate, lorry No. TNA 1749 and car No. MEU 5556, were involved in the accident and at that time the deceased alakanandaswamymath, was travelling in the car and due to accident, he sustained injuries and died on account of injuries. 4. 1986, at 2 a. m. , near lakshmisagar Gate, lorry No. TNA 1749 and car No. MEU 5556, were involved in the accident and at that time the deceased alakanandaswamymath, was travelling in the car and due to accident, he sustained injuries and died on account of injuries. The driver of the lorry denied that accident was on account of any rash and negligent driving of the driver. In the same way, on behalf of the lorry owner it was alleged that accident was due to rash and negligent driving of the car No. MEU 5556 of Alakanandaswamymath. It was also asserted that the claim of compensation to the tune of Rs. 9,75,000 was on higher side and excessive. The respondent No. 5 also filed objections alleging that the claim was highly excessive and that it is wrong to say that accident was due to rash and negligent driving of car No. MEU 5556. The respondent No. 5 alleged that the accident was due to rash and negligent driving of the lorry and respondent No. 1, was not found responsible. Respondent no. 6, in his objections asserted that the accident was not due to rash and negligent driving of the car and it denied its liability. It is alleged that the car was being driven slowly on correct side and but so far as lorry is concerned it was being driven in a rash and negligent manner. ( 4 ) ON the basis of the pleadings of the parties, the Tribunal framed the following issues: (1) Whether the petitioners prove that one C. F. Alakanandaswamymath died in motor vehicle accident on 19. 4. 1986 at 2. 00 a. m. , near Laxmisagar Gate due to the rash and negligent driving of the vehicles, namely, lorry No. TNA 1749 and car No. MEU 5556 by respondent nos. 2 and 5 respectively, as alleged? (2) Whether the petitioners prove that they are entitled to compensation, if so to what extent and from whom? (3) What order? ( 5 ) THE Tribunal after examining the record and the material evidence, held that the accident in question on the date and at the time alleged, had taken place on account of rash and negligent driving of the car in question. The Tribunal considering the material evidence further found that average income of the deceased was Rs. 3,500 per month. The Tribunal considering the material evidence further found that average income of the deceased was Rs. 3,500 per month. He further observed that he would have required Rs. 1,000 for himself and rest of that sum of Rs. 2,500 would have been utilised by him towards the maintenance of the family, the children and the wife, etc. The court further observed that multiplied by 12 yearly loss of dependency came to Rs. 30,000. The court has further opined that age of the claimant, being as 45, the proper multiplier would be 11 and multiplying Rs. 30,000 by 11, the Tribunal held that the total loss of dependency and maintenance would come to Rs. 3,30,000 in addition thereto, the Tribunal awarded a sum of Rs. 5,000 towards loss of consortium and Rs. 5,000 towards the loss of expectancy of life. The Tribunal further awarded a sum of Rs. 3,000 towards the funeral and other customary expenses. Thus the Tribunal, in all awarded sum of rs. 3,43,000 towards total compensation and awarded interest at the rate of 6 per cent per annum. ( 6 ) FEELING dissatisfied with the award of amount of compensation, the claimants have come before this court by way of appeal. Mr. S. M. Chandrashekar, learned counsel for the appellants submitted that the loss of dependency per month assessed at the sum of Rs. 2,500 is too low, he submitted that it should have been assessed at, at least Rs. 3,500 because the income was rs. 5,000. He further submitted that appliance of multiplier of 11 is unjustified and not in accordance with law, learned counsel contended that proper multiplier to be applied to have been 15. Learned counsel further contended that the award of Rs. 5,000 towards loss of consortium is on the lower side. He further submitted that award of Rs. 5,000 towards the loss of expectancy of life is also on the lower side. The learned counsel for the appellants raised the contention that even the award of 10 per cent interest is on the lower side. These contentions of the learned counsel have hotly been contested on behalf of the respondents. The learned counsel contended that so far as consortium is concerned, petitioners claimed loss of consortium only to the extent of Rs. 5,000 and, therefore, there is no good ground for him to challenge it. These contentions of the learned counsel have hotly been contested on behalf of the respondents. The learned counsel contended that so far as consortium is concerned, petitioners claimed loss of consortium only to the extent of Rs. 5,000 and, therefore, there is no good ground for him to challenge it. So far as this argument of the learned counsel for the respondents is concerned, there appears to be some force. Therefore, award of consortium of rs. 5,000 does not call for any interference at this stage. ( 7 ) LOSS of dependency so far as is concerned, in our opinion, Tribunal's assessment at the rate of Rs. 2,500 per month cannot be said to be unjustified, we affirm the finding of the trial court and we are of view as well that loss of dependency, at the rate of Rs. 2,500 p. m. to be Rs. 30,000 per year (i. e. , Rs. 2,500 x 12 months), to be justified one. The age of the deceased at the time of death, no doubt in the claim petition is alleged to be 43 years, but the Tribunal, on consideration of the matter and material, has found him to be 45 years of age, at the time of death. The learned counsel for the respondents, pointed out that it is based on post-mortem report, that is Exh. P-48, In that Exh. P-48, his age is mentioned as 45 years. The learned counsel for the appellants on this basis tried to contend that 45 years of age is mentioned in postmortem certificate and it is not mentioned as above 45 years, as such the multiplier of 15 should be adopted. ( 8 ) THE age of 45 years is a guesswork. Tt may also be above 45, or it may also be lower. Looking to the circumstances, we think it just and proper that when it has been assessed as 45 years, it may be above 45 and in such a case, where the age is above 45 or crossing 45 and below 50, the proper multiplier to be applied should be 13 and not 15. Thus we take 13, to be the proper multiplier to be applied, because the appellants have not filed any birth certificate or age certificate of the deceased. In case of persons above 45, the multiplier of 13 is applicable. Thus we take 13, to be the proper multiplier to be applied, because the appellants have not filed any birth certificate or age certificate of the deceased. In case of persons above 45, the multiplier of 13 is applicable. So when we apply the multiplier of 13, then sum of Rs. 30,000 as multiplicand multiplied by 13, the loss of dependency comes to Rs. 3,90,000 and in our opinion, the claimants are entitled to a sum of Rs. 3,90,000 towards loss of dependency and we do so award. As regards loss of consortium, a sum of Rs. 5. 000 has been awarded and as we have found that it is correct and we do not think just and proper to interfere with this. That for loss of expectation of life has been assessed and awarded by Tribunal at Rs. 5,000, in our view the award of Rs. 5,000 as compensation under this head is on the lower side and needs to be modified and enhanced. That, as regards loss of expectation of life the amount of Rs. 5,000 as mentioned above, being on lower side, we do enhance it by a sum of Rs. 15,000. Rs. 3,000 has justifiably been awarded by the Tribunal towards funeral and other expenses. Thus total compensation comes to Rs. 4,18,000 which is rounded up to rs. 4,20,000 and in our opinion claimants-appellants are entitled to be awarded a sum of Rs. 4,20,000 as the total amount of compensation. We, accordingly award in total, a sum of Rupees four lakh twenty thousand (Rs. 4,20,000 ). As regards the interest, the claimants have claimed interest at the rate of 12 per cent. The Tribunal has awarded interest at the rate of 6 per cent per annum, which in our opinion is too low and it has to be enhanced, but the question is how and from what date it has to be granted? ( 9 ) THE amount of compensation of rs. 3,43,000 has been deposited within the period allowed by the Tribunal. Learned counsel states that the entire amount of rs. 3,43,000 with 6 per cent interest granted by Tribunal has been deposited. ( 10 ) LOOKING to the conduct of the respondents, it appears just and proper, that so far as enhanced amount is concerned, they are directed to pay and deposit the balance of the enhanced amount of compensation, i. e. , Rs. 3,43,000 with 6 per cent interest granted by Tribunal has been deposited. ( 10 ) LOOKING to the conduct of the respondents, it appears just and proper, that so far as enhanced amount is concerned, they are directed to pay and deposit the balance of the enhanced amount of compensation, i. e. , Rs. 77,000 with interest at the rate of 9 per cent per annum from the date of the application till the date of payment. ( 11 ) THE appeal is allowed with costs. The respondent No. 6 is required to deposit the enhanced amount, i. e. , additional sum of Rupees seventy-seven thousand with interest at the rate of 9 per cent per annum from the date of application up to the date of payment. That the above balance of enhanced amount of compensation, i. e. , sum of rs. 77,000 with interest at the rate of 9 per cent after its deposit along with the sum of Rs. 3,43,000 and the interest thereon at 6 per cent per annum from the date of claim till the date of deposit, as granted above by the Tribunal, shall be invested in the interest earning long term deposits in the nationalised bank, for a further period of 5 years. The appellants through their mother, appellant No. 1, are entitled to withdraw and realise the interest earned thereon every month or every quarter from that nationalised bank. This additional amount of Rs. 77,000 along with the interest at the rate of 9 per cent per annum, as mentioned above, shall be invested in the same bank in which rs. 3,43,000 as above-mentioned has been invested under the orders of the Tribunal. Appeal allowed. --- *** --- .