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2010 DIGILAW 482 (KAR)

D. Jayalakshmi v. B. V. Deepak

2010-04-05

H.S.KEMPANNA, N.K.PATIL

body2010
Judgment :- N.K. PATIL, J. This appeal by the claimants is directed against the impugned judgment and award dated 30th November 2004, passed in M.V.C. No. 864/2002, on the file of the Principal Civil Judge, (Senior Division) & II Additional Motor Accident Claims Tribunal, Davangere, (for short, ‘Tribunal’) for enhancement of compensation on the ground that, the compensation of Rs. 3,91,000/- with interest at 6% per annum, awarded in favour of the claimants as against their claim for Rs. 25.00 lakhs, is inadequate. 2. The brief facts of the case are that, the first appellant is the wife, appellants 2 and 3 are the minor children and appellant No. 4 is the mother of the deceased late Sri. K. Dharmeshi, who died in the road traffic accident that occurred at about 9:00 A.M., on 01-09-2003, near Bapuji hospital Cross on Dental College Road, Davangere. That on the said date, time and place, when the deceased was going on Hero Honda Splendor motor cycle, bearing Registration No. KA-17/Q- 6790, as pillion rider, at that time, the rider of the said motor cycle drove the same in a rash and negligent manner, and all of a sudden, took a right turn and lost control over the vehicle, due to which, the motor cycle fell down and both the rider and the pillion rider (the deceased) fell down, sustaining grievous injuries. The deceased was immediately shifted to C.G. Hospital, Davangere, where he was declared dead, due to head injuries. It is the case of appellants that the deceased was aged about 39 years and was a skillful lawyer, earning a sum of Rs. 15,000/- per month. It is their further case that, on account of the death of the deceased, they have lost the sole breadwinner of the family and are in great distress. They were entirely dependent on the deceased, who was their main source of livelihood. Therefore, they have to be compensated adequately. 3. On account of the death of the deceased, the appellants filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal seeking compensation of a sum of Rs. 25.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 30th November 2004. 3. On account of the death of the deceased, the appellants filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal seeking compensation of a sum of Rs. 25.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 30th November 2004. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 3,91,000/- under different heads, with interest at 6% per annum from the date of petition till the date of realization. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants are in appeal before this Court, seeking enhancement of compensation. 4. We have heard learned counsel for appellants and learned counsel for Insurance Company for considerable length of time. 5. After hearing learned counsel for the parties, after careful perusal of the judgment and award passed by the Tribunal and after critical evaluation of the original records available on file, threadbare, we are of the view that the occurrence of accident and the resultant death are not in dispute. The Tribunal, after critical evaluation of the oral and documentary evidence available on file, has rightly awarded compensation of Rs. 20,000/- towards loss of consortium, Rs. 10,000/- towards loss of estate, Rs. 10,000/-towards loss of love and affection, and Rs. 15,000/-towards transportation of dead body and funeral expenses. Hence, it does not call for interference. 6. However, the Tribunal erred in assessing the income of the deceased at Rs. 3,500/-per month, while calculating the loss of dependency. It is not in dispute that the deceased was aged about 39 years and was a practicing advocate at Davangere, with rich experience of over nine years. The accident has occurred in the year 2002. In such a situation, the Tribunal, having regard to the age and avocation of the deceased, ought to have assessed the income of the deceased in a just and fair manner. It was the case of the appellants before the tribunal that the deceased was earning a sum of Rs. 15,000/- per month from out of his profession as lawyer and had 07 acres of irrigated land at Bevinahalli village and was earning at least Rs. 2,00,000/- per annum. It was the case of the appellants before the tribunal that the deceased was earning a sum of Rs. 15,000/- per month from out of his profession as lawyer and had 07 acres of irrigated land at Bevinahalli village and was earning at least Rs. 2,00,000/- per annum. In the absence of the documentary evidence for earning the said income from agriculture, but, having regard to the age, avocation and year of accident, we can reasonably re-assess the income of the deceased at Rs. 6,000/-per month, to meet the ends of justice. Having regard to the number of dependents being four, 1/4th is to be deducted towards the personal and living expenses of the deceased. After deducting 1/4th (Rs.1,500/-) from Rs. 6,000/-, the net income comes to Rs. 4,500/- Since the deceased was aged 39 years, the appropriate multiplier is ‘15’ as per the decision of the Hon’ble Supreme Court of India in Sarla Verma’s case reported in 2009 ACJ P.1298. Accordingly, the loss of dependency works out to Rs. 8,10,000/-(i.e. Rs. 4,500/- * 12 * ‘15’) as against Rs. 3,36,000/- awarded by Tribunal. 7. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellants is allowed in part. The impugned judgment and award dated 30th November 2004, passed in M.V.C. No. 864/2002, on the file of the Principal Civil Judge, (Senior Division) & II Additional Motor Accident Claims Tribunal, Davangere, is hereby modified, awarding a sum of Rs. 8,65,000/- as against Rs.3 ,91,000/- awarded by the Tribunal, with interest at 6% per annum on the enhanced sum, from the date of petition till the date of realization. The break-up is as follows: Towards Loss of Dependency Rs. 8,10,000/-Towards Loss of love and affection Rs. 10,000/-Towards Loss of estate/loss of expectancy Rs. 10,000/-Towards transportation of dead body and funeral expenses Rs. 15,000/-Towards loss of consortium Rs. 20,000/-TOTAL Rs. 8,65,000/-The Insurance Company is directed to deposit the enhanced compensation of Rs. 4, 74,000/-, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment and award. Immediately on such deposit by the Insurance Company, out of the enhanced compensation of Rs. 4, 74,000/-, a sum of Rs. 20,000/-TOTAL Rs. 8,65,000/-The Insurance Company is directed to deposit the enhanced compensation of Rs. 4, 74,000/-, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment and award. Immediately on such deposit by the Insurance Company, out of the enhanced compensation of Rs. 4, 74,000/-, a sum of Rs. 1,00,000/- with proportionate interest, shall be kept in Fixed deposit, in any Nationalized or Schedule Bank, in the names of each of appellants 2 and 3 – the minor children of deceased, with liberty reserved to the wife of the deceased to withdraw the periodical interest on the said Deposits for their welfare. Further, a sum of Rs. 1,00,000/- with proportionate interest shall be kept in Fixed Deposit, in the name of first appellant – wife of the deceased and a sum of Rs. 74,000/-with proportionate interest shall be kept in Fixed Deposit, in the name of the fourth appellant – mother of the deceased, in any Nationalized or Scheduled Bank, for a period of five years, and renewable by another five years, with liberty reserved to them to withdraw the periodical interest on such Deposits. The remaining sum of Rs. 1,00,000/- with proportionate interest shall be released in favour of appellants 1 and 4, in equal proportion. Office to draw award, accordingly.