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2013 DIGILAW 197 (KAR)

Ameena Farhath v. Deputy Director, Bangalore

2013-02-18

N.K.PATIL

body2013
Judgment :- (This MFA is filed U/S 173(1) of MV Act, against the Judgment and Award dated: 28/08/2009 passed in MVC No. 9183/2007 on the file of the Chief Judge, Court of Small Causes, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.) 1. This appeal by the claimants is directed against the common judgment and award dated 28th August 2009, passed in MVC No.9183/2007, by the Chief Judge, Court of Small Causes, Bangalore, (for short, 'Tribunal') for enhancement of compensation on the ground that, the compensation of Rs.7,66,400/-awarded in favour of the claimants, after deducting 20% contributory negligence fixed on the part of the deceased, as against their claim for Rs.17,50,000/-, is inadequate. 2. The facts in brief are that, the claimant No.1 is the wife and claimant No.2 is the minor son and claimant Nos.3 and 4 are the parents of deceased Mohammed Farooq. They filed the claim petition under Section 166 of the Motor Vehicles Act, contending that, at about 8:00 P.M, on 08-10-2007, when the deceased was riding his Motor Cycle bearing Registration No. KA- 01/S-8111 along with a pillion rider, on the left side of Chikkaballapura-Shidlaghatta Road, near Hoshudya village, Chikkaballapur Taluk, he met with an accident, on account of rash and negligent driving by the driver of a Jeep, bearing Registration No.CKG-581. Due to the impact, the deceased sustained grievous injuries and he succumbed to the same on the way to Government Hospital, Shidlaghatta. 3. It is the case of the appellants that, the deceased was aged about 28 years and was working as a Teacher (Imamsab) at Ansar Masjid Committee, Shidlaghatta, getting salary of a sum of Rs.10,000/-per month and was hale and healthy prior to the accident. On account of the untimely death of the deceased, the first appellant has lost her life partner, the son has lost the love and affection, inspiration and guidance and both the parents have lost the social, financial and moral support and security and therefore, they have to be compensated reasonably. 4. On account of the death of the deceased, the appellants filed the claim petition before the Tribunal, seeking compensation against the respondents. The said claim petition had come up for consideration before the Tribunal on 28th August, 2009. 4. On account of the death of the deceased, the appellants filed the claim petition before the Tribunal, seeking compensation against the respondents. The said claim petition had come up for consideration before the Tribunal on 28th August, 2009. 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.7,66,400/- under different heads, with 6% interest per annum, from the date of petition till the date of payment, after deducting 20% towards contributory negligence fixed on the deceased. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants are in appeal before this Court, seeking enhancement of compensation. 5. I have gone through the grounds urged in the memorandum of appeal and heard the learned counsel appearing for appellants and also the learned Additional Government Advocate appearing for respondents, for quite some time. 6. Shri. Girimallaiah, learned counsel appearing for appellants submits that the deceased was aged about 28 years working as Imamsab, teaching Arabic language in the prayer hall of the Masjid and getting salary of Rs.10,000/-per month. In support of the said submission, he submits that he has examined the Moulvi of the said Masjid to establish that the deceased was working in the said Masjid and drawing the said salary. Therefore, he submits that having regard to the oral and documentary evidence adduced by the claimants, reasonable income of the deceased may be re-assessed and the compensation may be re- determined. Further, he drew my attention to the latest decision of the Hon'ble Apex Court in the case of Santosh Devi Vs. National Insurance Company Limited and others (Civil Appeal No.3723/2012, arising out of S.L.P.(C) No.24489/2010), and submitted that the claimants are entitled to 30% enhancement towards future prospects of the deceased towards loss of dependency and therefore, the same may be awarded in accordance with law, by adopting suitable multiplier. 7. Per contra, learned Additional Government Advocate appearing for respondents submitted that the Tribunal, after due appreciation of the oral and documentary evidence available on file, has rightly awarded compensation towards loss of dependency as also under conventional heads for the death of the deceased in the road traffic accident and further also rightly fixed contributory negligence at 20% on the part of the deceased. Hence, interference in the same is not called for. Hence, interference in the same is not called for. However, he does not dispute regarding the Apex Court decision referred supra, regarding the entitlement of additional 30% by the claimants towards future prospects of the deceased. 8. After hearing learned counsel appearing for the appellants and learned Additional Government Advocate appearing for respondents, and after careful perusal of the judgment and award passed by the Tribunal, the only point that arise for my consideration in this appeal is, Whether the compensation awarded by Tribunal is just and reasonable? Occurrence of accident and the resultant death of the deceased are not in dispute. It is also not in dispute that the deceased was aged about 28 years working as Imamsab in Masjid, teaching Arabic language to the devotees, who visit the Masjid, drawing salary of Rs.10,000/- per month. But, the appellants have not produced any credible documentary evidence, such as consistent pass book entries or any other documentary evidence in support of the said salary. The Tribunal after critical evaluation of the oral and documentary evidence available on file, in the absence of the documentary evidence available on file, having regard to the age, avocation and the year of accident, being 2007, has assessed the monthly income of the deceased at Rs.6,000/-. The same is just and proper and I accept the same. 9. Admittedly, the deceased was working as Imamsab in Masjid. I have already accepted the monthly income of Rs.6,000/-, assessed by Tribunal. Therefore, in view of the judgment of the Hon'ble Apex Court in Santosh Devi Vs. National Insurance Company Ltd. and others (supra), I add 30% to the monthly income of the deceased, towards future prospects. Accordingly, the total monthly income would be Rs.7,800/-(Rs.6,000/- + Rs.1,800/-). As the deceased was aged about 28 years, the proper multiplier applicable is 17' as per the decision of the Hon'ble Apex Court Sarla Verma's case ( 2009 ACJ 1298 ) as rightly adopted by Tribunal. As the number of dependents are four, viz. wife, minor son and parents, I deduct 1/4th (i.e. Rs.1,950/-) towards the personal expenses of the deceased. Accordingly, if 1/4th (i.e. Rs.1,950/-) is deducted from Rs.7,800/- towards his personal expenses, the net income would be Rs.5,850/-per month. Thus, the compensation towards loss of dependency would work out to Rs.11,93,400/- (i.e. Rs.5,850/- x 12 x'17') as against Rs.9,18,000/- awarded by Tribunal. 10. Accordingly, if 1/4th (i.e. Rs.1,950/-) is deducted from Rs.7,800/- towards his personal expenses, the net income would be Rs.5,850/-per month. Thus, the compensation towards loss of dependency would work out to Rs.11,93,400/- (i.e. Rs.5,850/- x 12 x'17') as against Rs.9,18,000/- awarded by Tribunal. 10. Further, the Tribunal has erred in awarding only a sum of Rs.40,000/-towards conventional heads. The same is on the lower side. As per the decision of the Apex Court in Sarla Verma's case (supra), I award a sum of Rs.45,000/-towards conventional heads, such as loss of consortium, loss of estate, loss of love and affection and transportation and funeral expenses as against Rs.40,000/- awarded by Tribunal. 11. Further, so far as the contributory negligence fixed at 20% on the part of the deceased is concerned, it can be seen that the Tribunal, after critical evaluation of the oral and documentary evidence available on file has recorded a specific finding of fact holding that the deceased also contributed to the occurrence of accident at 20%. The reasoning given by Tribunal for coming to the said conclusion is just and proper and I uphold the same. Thus, the total compensation would work out to Rs.12,38,400/- as against Rs.9,58,000/-awarded by Tribunal, with interest at 6% per annum, from the date of petition till the date of realization. Since I have already upheld 20% contributory negligence fixed on the deceased, 20% is to be deducted from the total compensation of 12,38,400/-. After such deduction, the net total compensation would be Rs.9,90,720/- as against Rs.7,66,400/- awarded by Tribunal. The net enhancement of compensation would be Rs.2,24,320/- with interest at 6% per annum from the date of petition till the date of realization. 12. 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 common judgment and award dated 28th August 2009, passed in MVC No.9183/2007, by the Chief Judge, Court of Small Causes, Bangalore, is hereby modified, awarding a sum of Rs.2,24,320/-, with interest at 6% per annum, from the date of petition till the date of realization, in addition to the compensation awarded by Tribunal. The respondent No.1 is directed to deposit the enhanced compensation of Rs.2,24,400/-, with interest thereon at 6% per annum, within three weeks from the date of receipt of copy of the judgment. The respondent No.1 is directed to deposit the enhanced compensation of Rs.2,24,400/-, with interest thereon at 6% per annum, within three weeks from the date of receipt of copy of the judgment. Immediately on such deposit by the first respondent, a sum of Rs.50,000/-with proportionate interest shall be deposited in the name of the first appellant-wife of deceased, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of twenty years, renewable by another ten years, with liberty reserved to her to withdraw the periodical interest. A sum of Rs.50,000/- with proportionate interest shall be deposited in the name of the second appellant- minor son of deceased, in Fixed Deposit, in any scheduled/Nationalized Bank, till he attains the age of 30 years, with liberty reserved to the first appellant-mother to withdraw the periodical interest, for his welfare, till he attains 20 years and from 21 years onwards, the second appellant is entitled to withdraw the interest. A sum of Rs.50,000/- with proportionate interest shall be deposited in the name of the fourth appellant- mother of deceased, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of five years, renewable by five years, with liberty reserved to her to withdraw the periodical interest. Remaining sum of Rs.74,320/- with proportionate interest shall be released in favour of appellant Nos.1,3 and 4, in equal proportion, immediately. Office to draw award, accordingly.