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2009 DIGILAW 656 (KAR)

Saraswathi v. Ganapathi

2009-08-21

N.K.PATIL, RAVI MALIMATH

body2009
JUDGMENT N.K. PatH, J : The respondents-3 & 4 are the father-in-law and mother-in-law of the appellant and parents of the deceased. Since the appellant in this appeal does not challenge the apportionment of compensation, notice to respondents 3 and 4 is dispensed with. 2. Though this matter is posted for orders today, by consent of both the Learned Counsel for the parties, the appeal is taken up for final disposal. 3. This appeal arises out of the judgment and award dated 22.03.2005 passed in MVC No. 1026/2004 on the file of the Principal District Judge and Motor Accidents Claims Tribunal, Gulbarga (for short 'the Claims Tribunal'). The Claims Tribunal by its Judgment and award, awarded a sum of Rs. 1,66,600/- with interest 6% p.a. The appellant herein claiming that the said amount awarded by the Claims Tribunal is inadequate and requires enhancement, presented the instant appeal. 4. We have heard the Learned Counsel appearing on both sides and perused the material on record. 5. On perusal of the records, it is seen that the claimant-appellant has established the factum of accident that had occurred on 30.10.2003; involvement of the Jeep bearing registration No. KA-39/M-9291; its insurance with the 2nd respondent-insurer and the fact that the cause of death of deceased Krishnappa was wholly due to the rash and negligent driving of the said Jeep by its driver. It has been further established at the enquiry that husband of the claimant succumbed to the injuries sustained in the said accident. The appeal by the claimant is limited to the quantum of compensation awarded by the Tribunal under different heads on the ground that the compensation awarded is insufficient. 6. The principal contentions urged by the claimant-appellant is that, the deceased was earning a sum of Rs. 6,000/- per month by doing vegetable vending work and hence, the Tribunal has committed grave error in taking the income of the deceased at Rs. 1,200/- per month; that, the claimant appellant and respondents-3 and 4 have lost the bread winner of the family, and therefore, the compensation awarded under the heads "loss of dependency", "consortium", "loss of estate" and "funeral expenses" is on the lower side. 7. Per contra, Sri. 1,200/- per month; that, the claimant appellant and respondents-3 and 4 have lost the bread winner of the family, and therefore, the compensation awarded under the heads "loss of dependency", "consortium", "loss of estate" and "funeral expenses" is on the lower side. 7. Per contra, Sri. Sanjay M. Joshi, Learned Counsel appearing for the 2nd respondent-insurer inter alia contended that the Tribunal, on appreciation of the oral and documentary evidence on record in proper perspective has awarded just and reasonable compensation and therefore, the same does not calls for interference from this Court 8. Admittedly, the 2nd respondent-insurance company has not preferred any appeal, challenging the findings recorded by the Tribunal that the accident in question had occurred solely on account of rash and negligent driving of the Jeep bearing registration No.KA-39/M-9291 by its driver and also the liability fastened on it to pay the compensation awarded by the Claims Tribunal. Therefore, the points that arise for our consideration is: i) Whether the Tribunal is justified in awarding compensation ofRs. 1,53,600/- towards 'loss of dependency' by assessing the income of the claimant at Rs. 1,200/- per month? ii) Whether the compensation awarded by the Tribunal under other conventional heads are on the lower side? - 9. Re. Point No (i): On perusal of the oral testimony of the wife of the deceased (PW. 1) it is seen that, the deceased was earning a sum of Rs.6,000/- per month by doing fruits and vegetable vendor work. Merely because there is no documentary evidence to that effect, the ocular evidence of the wife of the deceased cannot be brushed aside. Therefore, we are of the considered view that the Tribunal is not justified in taking the monthly income of the deceased at Rs. 1,200/-. The accident in question had occurred in the year 2003 and therefore, it would be just and reasonable to take average the income of the deceased at Rs.3,000/- per month and Rs.36,000/ - per annum. If 1/3rd is deducted towards personal expenses of the deceased, his net annual income would come to Rs.24,000/-. Further, it is just and proper to consider the age of the mother of the deceased to assess the loss of dependence. As she was aged 60 years as on the date of accident, the appropriate multiplier applicable to is 8'. If 1/3rd is deducted towards personal expenses of the deceased, his net annual income would come to Rs.24,000/-. Further, it is just and proper to consider the age of the mother of the deceased to assess the loss of dependence. As she was aged 60 years as on the date of accident, the appropriate multiplier applicable to is 8'. If the same is applied, the claimant-appellant and respondents 3 and 4 are entitled to be awarded a sum of Rs. 1,92,000/- (Rs.24,000/- (annual income) x 8 (multiplier) = Rs. 1,92,000/-) towards loss of dependency. Accordingly, we answer point No (i) in favour of the appellant. 10. Re. Point No (ii): Admittedly, the deceased Krishnappa, who is the husband of the appellant and son of respondents-3 and 4 was an young, aged 28 years died on account of fatal injuries suffered in a motor accident. The appellant and respondents-3 & 4 have lost the sole bread winner in the family. Having regard to facts and circumstances of the case, we are of the view that the compensation awarded by the Tribunal under other conventional head is on the lower side and requires enhancement. Therefore, we hold that the claimant-appellant is entitled to be awarded Rs. 10,000/- towards 'loss of consortium', 1\s. 10,0001- towards 'loss of estate' and Rs.5,000/- towards 'funeral expenses'. Thus, the claimant-appellant and respondents-3 and 4 are entitled to total compensation of Rs.2,17 ,000/ -. Accordingly, we answer point No (ii) in favour of the appellant-claimant. Hence, we pass the following: ORDER i) The appeal is allowed in part. ii) In modification of the Judgment and award dated 22.03.2005 passed by the Principal District Judge and Motor Accidents Claims Tribunal, Gulbarga in MVC.No. 1026/2004, the compensation payable to the claimantappellant and respondents-3 and 4 is enhanced from Rs. 1,66,600/- to Rs.2,17,000/- with interest at the rate of 6% per annum from the date of petition till realisation. iii) The 2nd respondent-insurer shan pay the enhanced compensation ofRs.50,4001- with accrued interest thereon, within six weeks from the date of receipt of copy of this Judgment iv) Out of the total compensation, the claimanl-appellant herein who is the wife of the deceased is entitled to receive 40% of the amount. v) The respondents-3 and 4, the mother and father of the deceased are entitled to receive the remaining 60% viz., 30% each. Office is directed to draw the modified award.