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Karnataka High Court · body

2009 DIGILAW 767 (KAR)

G. Vijayakumari v. T. Mohan Subramanyam

2009-10-07

K.N.KESHAVANARAYANA, N.K.PATIL

body2009
Judgment :- Patil, J Admit. Heard on merits. 2. This appeal is directed against the judgment and award dated 12.1.2006 passed in MVC No. 1733/2005 by the Learned XIII Additional Small Causes Judge and MACT, Court of Small Causes, SCCH-15, Bangalore, (hereinafter referred to as ‘Tribunal’ for short). 3. By its judgment and award, the Tribunal has awarded a sum of Rs.6,49,200/-with interest at 6% p.a., from the date of petition till the date of deposit. Being aggrieved by that, appellants have filed this appeal, seeking enhancement on the ground that, the amount awarded by the Tribunal is inadequate. 4. In brief the facts of the case are: The appellant No.1 is the wife and appellant Nos. 2 to 4 are the children of the deceased Sri. Jayaraj. The appellants have filed a claim petition before the Tribunal, claiming compensation of Rs.30,00,000/-on account of the death of the deceased Sri. Jayaraj, in the accident which occurred on 29.12.2004 at about 9.30 P.M., when he was proceeding towards his residence at Koramangala on Hosur Road on his Honda Activa scooter and when he came near Sri. Ayyapaswamy temple junction, at that time, a tipper lorry bearing No. KA-09-C-2525 driven by its driver came at high speed in a rash and negligent manner and dashed against his scooter, due to which deceased fell down and sustained head injury and his scooter was damaged and later he succumbed to injuries on 31.12.2004. The deceased Sri. Jayaraj was working as Draftsman Grade-II at Survey of India and drawing the gross salary of Rs. 12,199/-per month as on the date of the accident. The said claim petition had come up for consideration before the Tribunal on 12.1.2006. The Tribunal, after hearing both sides and after analyzing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs.6,49,200/-as compensation under different heads with interest at 6% p.a., from the date of petition till the date of deposit. Being aggrieved by the said judgment and award, the appellants have presented this appeal, seeking enhancement of compensation. 5. The principal submission canvassed by the Learned Counsel appearing for appellants is that, the Tribunal has committed an error in taking the net income of the deceased for calculating loss of dependency. Further he submitted that the permissible deductions is only towards Professional and Income tax. 5. The principal submission canvassed by the Learned Counsel appearing for appellants is that, the Tribunal has committed an error in taking the net income of the deceased for calculating loss of dependency. Further he submitted that the permissible deductions is only towards Professional and Income tax. He also submitted that the Tribunal has committed an error in not taking the future income of the deceased as held by the Apex Court in the case SARLA VERMA AND OTHERS vs. DELHI TRANSPORT CORPORATION AND ANOTHER1. Further, he submitted that the Tribunal has committed an error in not awarding any amount towards medical expenses for three days and also in not awarding any amount towards the damages caused to the scooter. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified. 6. Per contra, Learned Counsel appearing for second respondent-Insurance Company, inter-alia, contended that, the Tribunal on proper consideration of the oral and documentary evidence available on file, has awarded just and reasonable amount and therefore, it does not call for interference. However, he fairly submitted that, the amount awarded by the Tribunal towards loss of dependency appears to be inadequate and requires consideration in view of the law laid down by the Apex Court. 7. After careful consideration of the submissions made by Learned Counsel appearing for both the parties and after careful perusal of the impugned judgment and award passed by the Tribunal, the only point that arises for out consideration is: .Whether the amount awarded by the Tribunal towards loss of dependency is in accordance with law? 8. After careful perusal of the material available on record, it is not in dispute that, deceased Sri. Jayaraj died on account of the head injury sustained by him in the accident which occurred on 29.12.2004 at about 9.30P.M., near Sri. Ayyappaswamy Temple junction due to the rash and negligent driving of the Tipper lorry bearing No. KA-09-C-2525 by its driver. It is also not in dispute that, the deceased was working as Draftsman Grade-II at Survey of India, Central Government Geo-spatial Data Centre, Sarjapura Road, Koramangala II Stage, Bangalore and drawing gross salary of Rs.12,199/-per month. The permissible deduction is only towards Professional and Income Tax. Out of Rs.12,199/-, if a sum of Rs.1,000/-towards Income Tax is deducted, the net income of the deceased comes to Rs.11,199/-per month. The permissible deduction is only towards Professional and Income Tax. Out of Rs.12,199/-, if a sum of Rs.1,000/-towards Income Tax is deducted, the net income of the deceased comes to Rs.11,199/-per month. The deceased was aged 48 years at the time of his death and the claimants are entitled for future income of the deceased at 30% of the net income drawn by the deceased as on the date of his death, in view of the law laid down by the Apex Court in the case of SARLAVERMA AND OTHERS vs. DELHI TRANSPORT CORPORATION AND ANOTHER (supra), wherein, it is held at para-11 that, 30% of actual salary is to be added to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and he was below the age of 50 years. In the instant case, the deceased was aged about 48 years and he was working as Draftsman Grade-II at Survey of India,. 30% of net income of the deceased works out to Rs.3,359.70 and total income comes to Rs.14,558.70 (11,199+3,359.70=14,558.70) per month. The Tribunal has committed an error in deducting 1/3rd towards the personal expenses of the deceased, on the ground that, the dependents are four in numbers, who are the wife and children of the deceased. The Tribunal ought to have deducted 1/4th towards the personal expenses of the deceased in view of number of dependents. Out of Rs.14,558.70 if 1/4th is deducted towards the personal expenses of the deceased, the net income comes to Rs.10,919.03 per month. The appropriate Multiplier applicable is ‘13’, since the deceased was aged about 48 years at the time of death. Therefore, the total loss of dependency comes to Rs.17,03,368.68 (10,919.03 x 12 x 13=17,03,368.68) which is rounded off to Rs.17,03,368/-instead of Rs.5,99,184/-awarded by the Tribunal and accordingly, it is awarded. 9. So far as the amount awarded by the Tribunal towards other conventional heads i.e. transportation of dead body, funeral and obsequies ceremonies, loss of consortium, loss of love and affection and loss of expectancy of life is just and reasonable and it does not call for interference. 10. 9. So far as the amount awarded by the Tribunal towards other conventional heads i.e. transportation of dead body, funeral and obsequies ceremonies, loss of consortium, loss of love and affection and loss of expectancy of life is just and reasonable and it does not call for interference. 10. The submission of the Learned Counsel appearing for the appellants that, Tribunal has not awarded any amount towards medical expenses and damages to the vehicle is concerned, the appellants have failed to produce any documents to show the amount spent by them towards medical expenses and also towards the repair of the scooter and therefore, the Tribunal has rightly not awarded any amount towards the same. Therefore, the finding of the Tribunal in this regard is just and proper and it does not call for interference. 11. Having regard to the facts and circumstances of the case as stated above, the impugned judgment and award passed by the Tribunal is liable to be modified. The total compensation payable comes to Rs.17,53.368/-and the break-up is as follows: 1. Towards loss of dependency Rs.17,03,368/- 2. Towards transportation of Dead body, funeral and Obsequies ceremonies Rs. 10,000/- 3. Towards loss of consortium Rs. 10,000/- 4. Towards loss of love and affection Rs. 10,000/- 5. Towards loss of expectancy of life Rs. 10,000/- 6. Towards loss of estate Rs. 10,000/- Total Rs.17,53,368/- 12. Accordingly, the appeal is allowed and the impugned judgment and award passed by the Claims Tribunal in MVC No. 1733/2005 stands modified, granting a compensation of Rs.17,53,368/-instead of Rs.6,49,184/-(enhancement being Rs.11,04,184/-) with interest at 6% p.a., from the date of petition till its realization. The insurance company is directed to deposit the compensation amount with interest, within six weeks from the date of receipt of the copy of this judgment and award. Out of the enhanced compensation of Rs.11,04,184/-, appellant No. 1 shall be entitled for a sum of Rs.6,54,184/-with interest. Out of which, a sum of Rs.5,00,000/-with interest shall be invested in the fixed deposit in any nationalized or scheduled Bank in the name of the appellant No.1 for period of five years. The appellant No. 1 shall be entitled to withdraw the interest accrued on it. Out of which, a sum of Rs.5,00,000/-with interest shall be invested in the fixed deposit in any nationalized or scheduled Bank in the name of the appellant No.1 for period of five years. The appellant No. 1 shall be entitled to withdraw the interest accrued on it. The remaining amount of Rs.1,54,184/-with interest shall be released in favour of the appellant No.1 The appellant Nos.2 to 4 are entitled for a sum of Rs.1,50,000/-each, which shall be invested in the fixed deposit in the name of the appellant Nos.2 to 4 for a period of five years and they shall be entitled to withdraw the interest accrued on it quarterly. The appellant Nos.2 to 4 shall be entitled to withdraw the up to date interest accrued on their share. Draw up the award, accordingly.