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Karnataka High Court · body

2013 DIGILAW 191 (KAR)

Bhagyalaxmi v. Thiruvar Gopala Krishnan, Major

2013-02-15

B.MANOHAR

body2013
Judgment :- 1. The claimants as well as the Insurance Company being aggrieved by the quantum of compensation awarded in MVC No.646/2006 and 647/2006 passed by the Motor Accident Claims Tribunal, Mangalore in judgment and award dated 16-10-2009 filed these appeals. 2. MFA No.8698/2010 and MFA No.9543/2010 are filed by the claimants seeking enhancement of compensation. MFA No.974/2010 is filed by the Insurance Company being aggrieved by the quantum of compensation awarded to the appellants in MFA No.8698/2010. 3. Since the common question of law is involved in these appeals and a common order was made in MVC Nos.646/2006 and 647/2006 by the MACT, Mangalore, all the appeals are clubbed together and disposed of by this common order. 4. The brief facts of the case are as follows: The husband of the first appellant and father of the second appellant and son of the appellants 3 and 4, and brother of appellant No.5 one K.Mahesh in MFA.No.8698/2010 was proceeding in a motorbike bearing registration No.KA- 19/N-4132 as a pillion rider on 22-12-2005 at about 2.25 p.m. which was driven by A.S.Somasekhar who is the husband of the first appellant and father of the appellants 2 to 4 and son of the appellants 5 and 6 in MFA No.9543/2010. When the vehicle came near the Thokkottu junction, a Truck bearing Registration No.TN-28/K-3301 driven by its driver in a rash and negligent manner dashed against the two wheeler. Due to the accident, the rider as well as the pillion rider sustained injuries and they were shifted to K.S.Hegde Hospital, however, they died during the treatment. 5. The claimants in MVC No.646/2006 claim that the deceased K.Mahesh was working as a Security Officer in Sai Securities and Detective Services getting salary of Rs.5,000/- p.m. and also working as a watchman and earning in all a sum of Rs.7,000/-p.m. The accident occurred due to the rash and negligent driving of the truck bearing registration No.TN-28/K- 3301 and sought for compensation. At the time of death, he was aged about 29 years. Due to the death of Mahesh, the family has lost the bread earner and sought for compensation of Rs.15,00,000/-. 6. The claimants in MVC No.647/2006 in their claim petition contended that the deceased A.S.Somasekhar was working as a Police Constable in KSRP and getting salary of Rs.7,000/- p.m. Due to the death of the bread earner, the family became destitute. Due to the death of Mahesh, the family has lost the bread earner and sought for compensation of Rs.15,00,000/-. 6. The claimants in MVC No.647/2006 in their claim petition contended that the deceased A.S.Somasekhar was working as a Police Constable in KSRP and getting salary of Rs.7,000/- p.m. Due to the death of the bread earner, the family became destitute. The Ullal Police registered a case against the driver of the offending vehicle. The accident has occurred due to the rash and negligent driving of the driver of the truck and sought for compensation of Rs.15,00,000/-. 7. Though the owner of the vehicle was served with notice, he remained unrepresented. The Insurance Company filed objections to the claim petition and contended that the accident has occurred due to the rash and negligent riding of the motorbike and also there is contributory negligence on the part of the rider of the motorbike. Further, the Insurer disputed the age and salary drawn by the deceased and sought for dismissal of the claim petitions. 8. The Tribunal, on considering the oral and documentary evidence let in by the parties and also on verification of the Police report came to the conclusion that the accident has occurred due to the rash and negligent driving of Truck bearing registration No.KA-28/K-3301. The Police have registered a case against the driver of the said vehicle. Hence, the actionable negligence is on the driver of the said truck and the claimants are entitled for compensation. 9. With regard to the quantum of compensation is concerned, the first claimant in MVC No.646/2006 examined herself as P.W.1. and got marked the salary certificate of the deceased K.Mahesh as Ex.P6 and also examined the Employer of the deceased as P.W.5. The P.W.5 in his evidence deposed that the deceased was working under him as a Security Officer and he was paying him a salary of Rs.5,000/- p.m. The Tribunal taking into consideration income of the deceased as Rs.5,000/-p.m. and also age of the deceased as 29 years; applying the multiplier 17, and deducting 1/4 towards personal expenditure, has awarded compensation towards the loss of dependency as Rs.8,20,000/-. 10. In respect of claimants in MVC No.647/2006, the deceased was working as a Police Constable at KSRP 7 Batalian at Konaje. He was aged about 38 years. 10. In respect of claimants in MVC No.647/2006, the deceased was working as a Police Constable at KSRP 7 Batalian at Konaje. He was aged about 38 years. The Salary Certificate of the deceased as per Ex.P10 disclose that he was getting monthly salary of Rs.6,699/-. The Tribunal deducting 1/4 towards his personal expenditure, applying the multiplier of 15 awarded compensation of Rs.9,46,000/-. The claimants in both the appeals being unsatisfied with the quantum of compensation filed these appeals contending that while awarding the compensation, the Tribunal has not taken into consideration the future prospects as per the judgment of the Hon'ble Supreme Court and sought for enhancement of compensation. 11. The appellant in MFA No.974/2010 being aggrieved by the quantum of compensation awarded in MVC No.646/2006 awarding compensation of Rs.8,20,000/-filed this appeal contending that the compensation awarded by the Tribunal is contrary to law. In the provident fund contribution, less amount has been shown. The receipt of salary of Rs.5,000/- p.m. by the deceased is not proved by the claimants in accordance with law and sought for setting aside the judgment and award passed by the Tribunal. 12. I have carefully considered the arguments addressed by the advocate appearing for the claimants as well as the Insurer. 13. It is not in dispute that K.Mahesh and A.S.Somasekhar died in a road traffic accident that occurred on 22-12-2005, due to the rash and negligent driving of truck bearing registration No.KA-28/K-3301. The Insurance Company has also not disputed the accident. On the claim petitions filed by the legal representatives of the deceased, the Motor Accident Claims Tribunal has awarded the compensation. Being not satisfied with the quantum of compensation, the claimants have filed the above appeals, contending that while awarding compensation future prospects has not been taken into consideration. 14. In MFA No.8698/2010, at the time of death of Mahesh, he was aged about 29 years and working as a Security Officer at Sai Securities and Detective Services. In MFA No.9543/2010, at the time of death of Somasekhar he was working as a Police Constable in KSRP and aged about 38 years. As per the judgment of the Hon'ble Supreme Court, future prospects has not been awarded and sought for enhancement of compensation by awarding future prospects. In MFA No.9543/2010, at the time of death of Somasekhar he was working as a Police Constable in KSRP and aged about 38 years. As per the judgment of the Hon'ble Supreme Court, future prospects has not been awarded and sought for enhancement of compensation by awarding future prospects. However, the Insurer in their appeal contended that the claimants in MFA No.8698/2010 have not produced any document to show that the deceased was getting a salary of Rs.5,000/-p.m. as a Security Officer. On perusal of the judgment and award passed by the Tribunal, it is seen that the Tribunal has not taken into considered the future prospects in respect of both the claimants in both the appeals and they are entitled for future prospects of the deceased. If 30% of the future prospects is added to the income of the deceased, the appellants in MFA No.8698/2010 are entitled for compensation of Rs.10,49,500/- as against Rs.8,20,000/-awarded by the Tribunal.5000 + 1500 = 6500 -1/4. (4875x12x17=9,94,500+55,000=10,49,500) 15. Insofar as appellants in MFA No.9543/2010 are concerned, if 30% of the future prospects is added to the income of the deceased, the appellants are entitled for compensation of Rs.12,13,300/- as against Rs.9,46,000/-. (6435 x 12 x 15 = 11,58,300 + 55,5000 = 12,13,300) 16. In order to prove the income of the deceased in MFA No.8698/2010, the Employer of the Sai Securities and Detective Services was examined as P.W.5 and produced the salary certificate of the deceased. The Employer has admitted that he was paying Rs.5,000/-p.m. No document has been produced by the Insurer before the Tribunal to show that the evidence of P.W.5 is contrary to the facts. The Insurer has not examined any independent witnesses to disprove the statement made by P.W.5. Hence, the contention of the Insurer cannot be acceptable. The appellant in MFA.No.974/2010 has not made out a case for interference with the judgment and award passed by the MACT, Mangalore. Hence, the appeal filed by the Insurer is liable to be dismissed. 17. Accordingly, I pass the following: ORDER MFA Nos.8698/2010 and 9543/2010 filed by the claimants are partly allowed. MFA No.974/2010 filed by the Insurance Company is dismissed. The appellants/claimants in MFA No.8698/2010 are entitled for enhanced compensation of Rs.2,29,500/-and the appellants/claimants in MFA NO.9543/2010 are entitled for enhanced compensation of Rs.2,67,000/-. In all other respects, the judgment and award remains undisturbed. Accordingly, I pass the following: ORDER MFA Nos.8698/2010 and 9543/2010 filed by the claimants are partly allowed. MFA No.974/2010 filed by the Insurance Company is dismissed. The appellants/claimants in MFA No.8698/2010 are entitled for enhanced compensation of Rs.2,29,500/-and the appellants/claimants in MFA NO.9543/2010 are entitled for enhanced compensation of Rs.2,67,000/-. In all other respects, the judgment and award remains undisturbed. The amount in deposit in MFA.No.974/2010 before this court be transferred to MACT, Mangalore.