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2013 DIGILAW 219 (KAR)

Bhuvana Shankar v. Kanchan Mullerpattan

2013-02-21

N.K.PATIL, V.SURIAPPARAO

body2013
ORDER : N.K. Patil, J. This appeal by the appellant-claimant No. 2 is directed against the impugned judgment and award dated 8-11-2005 passed in MVC No. 1542/2003 by the IX Additional Judge, Court of Small Causes, and Member, Motor Accident Claims Tribunal-7, Bangalore (SCCH-7), (hereinafter referred to as 'Tribunal' for short), for enhancement of compensation, on the ground that a sum of Rs. 12,35,000/- awarded by the Tribunal as compensation under different heads; with interest at 6% per annum from the date of petition till the date of payment/deposit, as against the claim of Rs. 43,60,000/-, on account of the death the deceased Shivashankar in the road traffic accident is inadequate and it requires to be enhanced. In brief, the facts of the case are: The appellant is the daughter of the deceased Sri. Shivashankar. The respondent No. 1 -wife, along with her minor daughters respondent No. 2 and the appellant has filed a claim petition before the Tribunal u/s 166 of M.V. Act, claiming compensation against the respondents, on account of the death of the deceased contending that, 22-4-2002 at about 4.30 p.m. the deceased was driving Tata Indica car bearing No. KA.04.Z.4885 along with his mother, deceased Gayathri and sister Suman and also with one Mr. Giridhar and Master Dhruv towards Bangalore from Mangalore and when they came near Jodi Honnavalli village, Palya Hobli, Alur Taluk on BM Road, NH. 48, at that time the driver of one Gas Tanker bearing No. HR.29.B.8675 came in a rash and negligent manner from opposite direction and dashed against the car. Due to which deceased died on the spot and other inmates of the car have sustained severe injuries. 2. It is the further case of the claimants that, deceased was aged about 43 years, hale and hearty prior to the accident, working as Manager at Shamrao Vittal Co-op. Bank Ltd. and drawing the salary of Rs. 24,340/- per month and looking after the welfare of the family. Due to his untimely death, claimants have lost their bread earner and they suffered both financial and social insecurity. 3. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of Rs. Due to his untimely death, claimants have lost their bread earner and they suffered both financial and social insecurity. 3. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of Rs. 12,35,000/- under different heads with interest at 6% p.a., from the date of petition till the date of payment/deposit. Being dis-satisfied with the compensation awarded by the Tribunal, the appellant-claimant No. 2 has presented this appeal, seeking enhancement of compensation. 4. We have heard the learned counsel appearing for the appellant and learned counsel for Insurer. 5. The principal submission canvassed by the learned counsel for the appellant is that, the Tribunal has erred in not awarding reasonable compensation towards loss of dependency and towards conventional heads. Further, she submitted that, in view of the law laid down by the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, AIR 2009 SC 3104 another 30% is to be added to the income of the deceased towards future prospects since the deceased was aged about 43 years and working as Manager in Shamrao Vittal Co-operative Bank and Rs. 24,340/- per month as the claimants who are the wife and two minor children as on the date of accident and now the elder daughter has filed this appeal. Therefore, she submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by awarding reasonable compensation towards loss of dependency and towards conventional heads. 6. As against this, learned counsel for Insurer Sri. S. Srishaila, inter alia contended and substantiated that the impugned judgment and award passed by the Tribunal is just and proper and after due consideration of the oral and documentary evidence available on file and therefore, interference by this Court is not called for. 7. After hearing the learned counsel for the parties and after careful perusal of the material available on recorded at threadbare, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is: Whether the quantum of compensation awarded by the Tribunal is just and reasonable? 8. The occurrence of the accident and the resultant death of the deceased are not in dispute. 8. The occurrence of the accident and the resultant death of the deceased are not in dispute. Further, it is not in dispute that deceased was aged about 43 years, working as Manager in Shamrao Vittal Co-operative Bank Ltd., and the respondent Nos. 1 and 2 and appellant are the wife and daughters of the deceased. Further, it emerges from Ex. P9 salary certificate that deceased was drawing the gross salary of Rs. 24,340/- per month. As the deceased was aged about 43 years at the time of his death and he had a permanent job, 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 Sarla Verma's case, 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 was aged between 40 to 50 years. 30% of the salary of the deceased works out to Rs. 7,302/- and if the same is added to Rs. 24,340/-, the total income comes to Rs. 31,642/- (24,340/- + 7,302 = 31,642/-) per month and per annum it works out to Rs. 3,79,704/-. Out of which, if a sum of Rs. 98,911/- and Rs. 2,400/- is deducted towards Income Tax and Profession Tax, the remaining amount comes to Rs. 2,78,393/- per annum. Out of which, if 1/3rd (Rs. 92,797/-) is deducted towards the personal and living expenses of the deceased since there are three dependants, his net income comes to Rs. 1,85,596/- per annum. The appropriate Multiplier applicable is 14', since the deceased was aged about 43 years at the time of death instead of 13' adopted by the Tribunal in view of law laid down by Apex Court in Sarla Verma's case. Therefore, the total loss of dependency comes to Rs. 25,98,344/- (Rs. 1,95,596/- x 14) instead of Rs. 11,96,600/- awarded by the Tribunal and accordingly, it is awarded. 9. Having regard to the facts and circumstances of the case, we award a sum of Rs. 45,000/- towards conventional heads, such as, loss of consortium, loss of love and affection, loss of estate and transportation and funeral expenses instead of Rs. 29,000/- awarded by the Tribunal. 11,96,600/- awarded by the Tribunal and accordingly, it is awarded. 9. Having regard to the facts and circumstances of the case, we award a sum of Rs. 45,000/- towards conventional heads, such as, loss of consortium, loss of love and affection, loss of estate and transportation and funeral expenses instead of Rs. 29,000/- awarded by the Tribunal. In all, the appellant is entitled to a total compensation of Rs. 26,43,344/- instead of Rs. 12,35,000/-. There would be an enhancement of Rs. 14,08,344/- with interest at 6% p.a., (excluding the interest for 1802 days of delay in filing the appeal) from the date of petition till its realization. For the foregoing reasons, the appeal filed by the appellant is allowed in part and the impugned judgment and award dated 8-11-2005 passed in MVC No. 1542/2003 by the DC Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal-7, Bangalore (SCCH-7), is hereby modified, awarding the compensation of Rs. 14,08,344/- with interest at 6% p.a., (excluding the interest for 1802 days of delay in filing the appeal) from the date of petition till its realization, in addition to the compensation awarded by the Tribunal. The 4th respondent - Insurer is directed to deposit the enhanced compensation of Rs. 14,08,344/- with interest at 6% p.a., (excluding the interest for 1802 days of delay in filing the appeal) from the date of petition till the date of realization, within a period of three weeks from the date of receipt of a copy of this judgment. Immediately on deposit by the Insurer, out of the enhanced compensation of Rs. 14,08,344/-, a sum of Rs. 10,00,000/- with proportionate interest shall be invested in the Fixed deposit in any Nationalized or Scheduled Bank, in the name of the respondent No. 1 - wife of the deceased, for a period of ten years and renewable by another ten years, with liberty reserved to her to withdraw the interest accrued on it, periodically. A sum of Rs. 1,50,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of the appellant till she attains 30 years, with liberty reserved to her to withdraw the interest accrued on it, periodically. A sum of Rs. A sum of Rs. 1,50,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of the appellant till she attains 30 years, with liberty reserved to her to withdraw the interest accrued on it, periodically. A sum of Rs. 1,50,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of the respondent No. 2 daughter of the deceased till she attains 30 years, with liberty reserved to respondent No. 1 to withdraw the interest accrued on it, periodically for her welfare till she attains 20 years and from 21 years to 30 years, respondent No. 2 is entitled to withdraw the interest accrued on it, periodically. The remaining sum of Rs. 1,08,344/- with proportionate interest shall be released in favour of the appellant and respondent No. 1 in equal proportion, immediately. Office is directed to draw the award, accordingly.