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2014 DIGILAW 641 (KAR)

C. D. Bojamma v. A. M. Joyappa

2014-07-03

B.SREENIVAS GOWDA, N.K.PATIL

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JUDGMENT : N.K. Patil, J. This appeal by the claimants is directed against the impugned judgment and award dated 04.10.2011 passed in MVC No. 129/2010 on the file of the Civil Judge (Sr. Dn.) & MACT, Virajpet, (hereinafter referred to as 'Tribunal' for short), for enhancement of compensation. The Tribunal by its judgment and award, has awarded 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, on account of the death the deceased Choorira Devaiah alias Raja in the road traffic accident. 2. In brief, the facts of the case are: The appellant No. 1 is the wife and appellant No. 2 is a minor son of the deceased and they have filed a claim petition before the Tribunal under section 166 of M.V. Act, claiming compensation against the respondents contending that the deceased was aged about 40 years and an auto driver by profession. He was hale and healthy and only earning member in the family. Whatever he was earning, he used to spend it to the welfare of the family. Be it as it may. On 11.05.2010 at about 5.15 a.m., when deceased was driving the autorickshaw bearing No. KA-12-A-681 from Virajpet to Kergoor, near Gonikoppavirajpet main road, at that time, a bus bearing registration No. KA-12-A-2911 driven by the first respondent came from opposite direction in a rash and negligent manner and dashed against the autorickshaw. Due to the impact, deceased sustained fatal injuries and succumbed to injuries on the spot. It is the case of the claimants that, the deceased was aged about 40 years and hale and healthy as on the date of accident and being an autorickshaw driver, he was earning more than Rs. 800/- per day. On account of his death, the first appellant-wife has lost her husband and life partner at a very young age and the second appellant-son has lost the love and affection apart from social and financial security. There is a financial distress on account of his death. Considering all these aspects they filed the claim petition against the respondents before the Tribunal and the Tribunal after appreciation of the oral evidence of PWs. 1 to 3 and documentary evidence at Ex. P1 to P8, has allowed the claim petition in part and awarded a sum of Rs. There is a financial distress on account of his death. Considering all these aspects they filed the claim petition against the respondents before the Tribunal and the Tribunal after appreciation of the oral evidence of PWs. 1 to 3 and documentary evidence at Ex. P1 to P8, has allowed the claim petition in part and awarded a sum of Rs. 3,21,000/- with interest at 6% per annum from the date of petition till the date of realization. Being dissatisfied with the compensation awarded by the Tribunal, the appellants have presented this appeal for enhancement of compensation. 3. The submission of the learned counsel appearing for the appellants at the outset is that, the Tribunal has committed an error, material irregularity and injustice in not assessing the income of the deceased reasonably. What is assessed at Rs. 3,000/- per month is on the lower side, since the age of the deceased was 40 years and the wife and minor son were entirely dependent on the income of the deceased. This aspect of the matter was neither considered nor appreciated by the Tribunal. Therefore, he submitted that the income of the deceased may be re-assessed reasonably and reasonable compensation be awarded towards loss of dependency after deducting 1/3rd of his income towards his personal expenses and by applying the appropriate multiplier 15', applicable to the age of the deceased who was 40 years as on the date of accident. Further, he pointed out and submitted that the Tribunal has not awarded reasonable compensation towards loss of love and affection and loss of estate. Therefore, the impugned judgment and award is liable to be modified. 4. As against this, learned counsel appearing for the Insurer sought to substantiate the impugned judgment and award passed by the Tribunal as just and proper. It is passed after considering the oral and documentary evidence available on record and interference by this Court is not called for. 5. After careful consideration of the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for consideration is: "Whether the quantum of compensation awarded by the Tribunal is just and reasonable?" 6. It is not in dispute that the deceased died in the road traffic accident. It is not in dispute that the deceased died in the road traffic accident. Further, it is not in dispute that the deceased has left behind his wife and a minor son and the deceased was aged about 40 years at the time of accident and he was hale and healthy. Regarding the age, avocation, year of accident there is no dispute. The dependants are none other than the wife aged about 32 years and son aged about 14 years. She has lost her life partner, guide, philosopher and companion and the son has lost a teacher, guide, love and affection and special guidance. The Tribunal ought to have considered these aspects. Therefore, we deem it fit to re-assess income of the deceased at Rs. 5,500/- per month to meet the ends of justice, and deduct 1/3rd of it i.e. Rs. 1,833/- towards personal expenses of the deceased, which comes to Rs. 3,667/- per month. The appropriate multiplier applicable is 15'. Accordingly, we re-determine the compensation at Rs. 6,60,060/- and accordingly awarded. 7. In the instant case, it is not in dispute that the 1st claimant-wife has lost her husband, companion and security at the age of just 32 years, and the compensation awarded towards loss of consortium is on the lower side. Therefore, following the judgment of the Hon'ble Apex Court in the case of Rajesh and others v. Rajbir Singh and others, reported in 2013 ACJ 1403 (Para. 20) and also the judgment of this Court dated 25.06.2014 in MFA No. 7737/2013 (Smt. Padmavathi and others v. Sri. K. Ravichandran and another-Para. 20) and also keeping in mind that the wife has lost sexual relationship, we can safely award Rs. 1,00,000/- towards loss of consortium. Further, wife and his son have lost love and affection, inspiration, guidance in life. Therefore, we deem it fit to award Rs. 25,000/- to each claimant towards loss of love and affection, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses. In all, the appellants are entitled to compensation of Rs. 8,60,060/- as against Rs. 3,91,000/- awarded by the Tribunal. There will be an enhancement of Rs. 4,69,060/- with interest at 8% p.a., from the date of petition till realization in addition to compensation awarded by the Tribunal. Having regard to the facts and circumstances of the case as stated above, the appeal is allowed in part. 8,60,060/- as against Rs. 3,91,000/- awarded by the Tribunal. There will be an enhancement of Rs. 4,69,060/- with interest at 8% p.a., from the date of petition till realization in addition to compensation awarded by the Tribunal. Having regard to the facts and circumstances of the case as stated above, the appeal is allowed in part. The impugned common judgment and award passed by the Tribunal dated 04.10.2011 in M.V.C. No. 129/2010 on the file of Civil Judge (Sr. Dn.) & MACT, Virajpet is hereby modified. The third respondent - insurer is directed to deposit the enhanced amount with interest at 8% from the date of petition till the date of realization, within the period of three weeks from the date of receipt of a copy of this judgment. Out of the enhanced compensation of Rs. 4,69,060/-, a sum of Rs. 3,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the 1st appellant wife of the deceased Smt. C.D. Bojamma for a period of fifteen years and renewable for another ten years and she is entitled to withdraw the interest periodically. Out of the enhanced amount Rs. 1,00,000/-, with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the 2nd appellant-son of the deceased for a period of ten years and renewable for another five years and he is entitled to withdraw the interest periodically. The remaining amount of Rs. 69,060/- with proportionate interest shall be released in favour of the 1st appellant, immediately, on deposit by the third respondent insurance company. Draw the award, accordingly.