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2013 DIGILAW 820 (KAR)

S. R. Mangala Gowramma v. P. M. Narayana

2013-07-19

B.MANOHAR, N.K.PATIL

body2013
Judgment : 1. This appeal by the claimants-appellants , is directed against the impugned judgment and award dated 23/12/2009 passed in MVC No. 1508/2007, by the Civil Judge (Sr.Dn) and Additional Motor Accident Claims Tribunal, Kunigal, (hereinafter referred to as ‘Tribunal’ for short), for enhancement of compensation, on the ground that, a sum of Rs.5,27,280/- awarded by the Tribunal under different heads with interest at 6% per annum from the date of petition till the date of deposit, on account of the death the deceased Sri. K. K. Shivalingaiah, in the road traffic accident, is inadequate. 2. In brief, the facts of the case are: The appellant No.1 is the wife and appellant Nos.2 and 3 are children, appellant Nos.4 and 5 are the parents of the deceased Sri. K.K. Shivalingaiah. During the pendency of the appeal, appellant No.4 is dead and appellant Nos.1 to 3 and 5 are treated as his LRs. They filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation on account of the death of the deceased in the road traffic accident, contending that, on 17.11.2007, at about 6.00 a.m. deceased was travelling in Auto bearing Reg.No.KA.06.A.8062 from Kunigal to K. Honnamachanahalli and when the auto was going infront of Mullakattamma temple, NH48 road, Kunigal town, at that time, the driver of the bus belonging to Sugama Travels bearing Reg.No.KA.01.C3278 came in a rash and negligent manner and dashed against the auto. Due to which, deceased sustained grievous injuries and died at the spot. 3. It is the further case of the appellants that, deceased was aged about 35 years, hale and healthy prior to the accident, working as Assistant in Vivekananda High School, at K.H. Halli and drawing the salary of Rs.10,000/- per month and Rs.50,000/- from agriculture and looking after the welfare of the family. Due to his untimely death they suffered both socially and financially, as they have lost their earning member. 4. 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 said claim petition in part and awarded the compensation of Rs.5,27,280/- under different heads with interest at 6% p.a., from the date of petition till the date of deposit. 4. 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 said claim petition in part and awarded the compensation of Rs.5,27,280/- under different heads with interest at 6% p.a., from the date of petition till the date of deposit. Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellants have presented this appeal, for enhancement of compensation. 5. We have heard the learned counsel appearing for the appellants and learned counsel for 2nd respondent-Insurer. 6. The submission of the learned counsel for the appellants is that, the Tribunal has erred in not awarding reasonable compensation towards loss of dependency and towards conventional heads and what is awarded is inadequate and it requires to be enhanced. To substantiate the said submission, he placed reliance on the judgment of the Apex Court in the case of Vimal Kanwar & Others Versus Kishore Dan and others reported in 2013 AIR SCW 3258, and submitted that any amount received on compassionate appointment is not liable for deduction for determination of compensation under M.V. Act. Further he submitted that another 30% should be added to the actual salary income of the deceased towards future prospects since he had a permanent job and was below 50 years of age in view of the law laid down by the Apex Court in Sarla Verma's case reported in 2009 ACJ 1298 , and 1/4th has to be deducted towards his personal expenses instead of 1/3rd as done by the Tribunal since there are five dependants. Further he submitted relying on the judgment of the Apex Court in the case of Rajesh and others Versus Rajbir Singh and others reported in 2013 ACJ 1403, that, the compensation awarded by the Tribunal towards loss of consortium is on lower side and it needs to be enhanced. Therefore, he submitted that, the impugned judgment and award is liable to be modified. 7. As against this, learned counsel appearing for Insurer, inter alia, submitted that, since the appellant No.1 has got an appointment on compassionate ground, 30% cannot be added towards future prospects as submitted by the learned counsel for appellants. Therefore, he submitted that, the impugned judgment and award is liable to be modified. 7. As against this, learned counsel appearing for Insurer, inter alia, submitted that, since the appellant No.1 has got an appointment on compassionate ground, 30% cannot be added towards future prospects as submitted by the learned counsel for appellants. Therefore, he submitted that the compensation awarded by the Tribunal is just and proper and after appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference. 8. After hearing the learned counsel for both the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is: Whether the compensation awarded by the Tribunal is just and proper? 9. The occurrence of the accident and the resultant death of the deceased are not in dispute. The Tribunal has justified in assessing the age of the deceased as 41 years on the basis of Ex.R1-Service Register and in adopting the Multiplier of 14' and we accept the same. Further, it emerges that, Tribunal has justified in assessing the income of the deceased at Rs.8,939/- since he was working as Assistant in Vivekananda High School of K. Honnamachanahalli and drawing the salary of Rs.8,939/-as per Ex.P5 and we accept the same. As the deceased was aged about 41 years at the time of his death and he had a permanent job, appellants 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 para11 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 below 50 years. 30% of Rs.8.939/- works out to Rs.2,681/- and if the same is added to Rs.8,939/-, his total income comes to Rs.11,620/-per month. Out of which, if a sum of Rs.200/-is deducted towards professional tax, the remaining amount comes to Rs.11,420/-per month, Out of which, if 1/4th (Rs.2,855/-) is deducted towards the personal and living expenses of the deceased, his net income comes to Rs.8,565/-per month. Out of which, if a sum of Rs.200/-is deducted towards professional tax, the remaining amount comes to Rs.11,420/-per month, Out of which, if 1/4th (Rs.2,855/-) is deducted towards the personal and living expenses of the deceased, his net income comes to Rs.8,565/-per month. Therefore, we re-determine the loss of dependency at Rs.14,38,920/- (Rs.8,565/- x12x14) instead of Rs.4,97,280/- awarded by the Tribunal and accordingly, it is awarded. 10. Having regard to the facts and circumstances of the case as stated above, we award a sum of Rs.45,000/- towards conventional heads i.e. towards loss of consortium, towards loss of estate, towards loss of love and affection and towards transportation and funeral expenses instead of Rs.30,000/-awarded by the Tribunal. In all, the appellants are entitled for the total compensation of Rs.14,83,920/- instead of Rs.5,27,280/-. There would be an enhancement of Rs.9,56,640/- with interest at 6% p.a., from the date of petition till its realization. 11. So far as the submission made by learned counsel appearing for Insurer that the appellant No.1 has got an appointment on compassionate ground and therefore, 30% cannot be added towards future prospects is concerned, the said submission cannot be accepted as rightly pointed out by the learned counsel for the appellants in the light of the judgment of the Apex Court in Vimal Kanwar & Others Versus Kishore Dan and others reported in 2013 AIR SCW 3258, wherein, the Apex Court has held at para-20 as under: "20. The Second issue is "Whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as "Pecuniary Advantage" liable for deduction". "Compassionate appointment" can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the .employee dies in harness i.e. while in service leaving behind the dependents, one of the dependents may request for compassionate appointment to maintain the family of the deceased employee dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one's death and have no correlation with the amount receivable under statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as "Pecuniary advantage" that comes under he periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act.". Following the ratio of the said judgment of the Apex Court we hold that the appellants are entitled for another 30% towards future prospects. Therefore, the submission of the learned counsel for the Insurer is liable to be rejected and accordingly, it is rejected. 12. In the light of the facts and circumstances of the case, the appeal filed by the appellants is allowed in part. The impugned judgment and award dated 23/12/2009 passed in MVC No.1508/2007, by the Civil Judge (Sr.Dn) and Additional Motor Accident Claims Tribunal, Kunigal, is hereby modified, awarding the compensation of Rs.9,56,640/-, with interest at 6% p.a., from the date of petition till its realization, in addition to the compensation awarded by the Tribunal. The Insurer is directed to deposit the enhanced compensation of Rs.9,56,640/-with interest at 6% p.a., 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 such deposit by the Insurer, out of the enhanced compensation of Rs.9,56,640/-, a sum of Rs.3,00,000/-with proportionate interest shall be invested in the Fixed Deposit in the names of each of the appellant Nos.2 and 3 in any Nationalized or Scheduled Bank, till they attain 30 years, with liberty reserved to the appellant No.1 to withdraw the interest accrued on it, periodically, till they attain 21 years for their welfare and from 22 years till 30 years, they are entitled to withdraw the interest accrued on it, periodically. A sum of Rs.2,00,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of appellant No.1 for a period of ten years, renewable by another ten years, with liberty reserved to her to withdraw the interest accrued on it, periodically. A sum of Rs.2,00,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of appellant No.1 for a period of ten years, renewable by another ten years, with liberty reserved to her to withdraw the interest accrued on it, periodically. A sum of Rs.1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of appellant No.5 for a period of ten years, renewable by another five years, with liberty reserved to her to withdraw the interest accrued on it, periodically. The remaining sum of Rs.56,640/-with proportionate interest shall be released in favour of the appellant Nos.1 and 5 in equal proportion immediately. Draw the award, accordingly.