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2015 DIGILAW 55 (KAR)

H. M. Mukundappa v. Prabhu

2015-01-08

G.NARENDRA, N.K.PATIL

body2015
JUDGMENT N.K. Patil, J. 1. Though these matters are posted today for orders, with the consent of learned Counsel appearing for both the parties, the same are taken up for final disposal. These appeals by the claimants and by the insurer are directed against the impugned common judgment and award dated 28-11-2013 passed in MVC No. 3401 of 2011, by the Chief Judge, Court of Small Causes and Member, Principal Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as 'Tribunal' for short). 2. The Tribunal, by its judgment and award, has awarded a sum of Rs. 12,06,000/- with interest at 6% p.a., from the date of petition till its realisation, as against the claim made by the claimants for a sum of Rs. 30,00,000/-, on account of the death of the deceased Sri H.M. Kishor. 3. The claimants have filed an appeal for enhancement of compensation, on the ground that, the compensation awarded is inadequate and it requires to be enhanced and the insurer has filed an appeal, for reduction of compensation, on the ground that the compensation awarded on account of the death of the deceased is on the higher side and disproportionate to his source of income and is liable to be reduced. 4. In brief, the facts of the case are: "The claimants are the parents and sister of the deceased. They have filed a claim petition before the Tribunal under Section 166 of Motor Vehicles Act, 1988, claiming compensation against the owner and insurer of offending vehicle contending that on 2-4-2011 at about 11.00 p.m., deceased H.M. Kishor and his sister H.M. Yamuna were traveling in a Crew Cab bearing Reg. No. KA.51.A.3257 towards Sira to Chikkahulikunte. The said cab was driven by its driver Thimmaraju in a rash and negligent manner and when it came near Hugane Katte Gate on Amarapura Road, he lost control over it and dashed against the road side tree. Due to which, deceased and also the driver of the said cab Thimmaraju succumbed to the injuries and sister of the deceased sustained injuries." 5. It is the further case of the claimants that, deceased was aged about 23 years, hale and healthy prior to the accident, doing agriculture and doing transport business owning Tata Ace luggage vehicle bearing No. KA.34.8629 and earning more than Rs. It is the further case of the claimants that, deceased was aged about 23 years, hale and healthy prior to the accident, doing agriculture and doing transport business owning Tata Ace luggage vehicle bearing No. KA.34.8629 and earning more than Rs. 20,000/- per month from his both avocations and maintaining his entire family, as he was the only son to the claimants 1 and 2 and claimant 3 is the unmarried sister. Due to his untimely death, they suffered financial loss, apart from mental shock and agony. 6. The said claim petition had come up for consideration before the Tribunal. The Tribunal, in turn, after assessing the oral and documentary evidence and other materials available on file, and by assigning valid reasons, has allowed the claim petition in part, awarding the compensation of Rs. 12,06,000/- with interest at 6% p.a., from the date of petition till the date of realisation. 7. Being aggrieved by the said judgment and award, the claimants and the insurer have presented these appeals, seeking appropriate reliefs, as stated supra. 8. We have heard learned Counsel appearing for the parties at considerable length of time. 9. Learned Counsel Sri Kumara B., appearing for claimants, at the outset submitted 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. He further submits that the rate of interest awarded by the Tribunal at 6% p.a. is on the lower side. To substantiate the said submission, he submitted that, deceased, after completing his SSLC was cultivating his lands and also doing transport business as he was owning Tata Ace luggage vehicle bearing No. KA.34.8629 and earning Rs. 20,000/- per month from both occupations and used to contribute the same to the welfare of the family. But these aspects of the matter have not been considered or appreciated by the Tribunal while assessing the income of the deceased at Rs. 7,000/- per p.m. which is on the lower side and it is liable to be reassessed reasonably. He further submits that the compensation awarded towards conventional heads is on the lower side and is liable to be enhanced reasonably. Therefore, he submitted that the impugned judgment and award is liable to be modified. 10. 7,000/- per p.m. which is on the lower side and it is liable to be reassessed reasonably. He further submits that the compensation awarded towards conventional heads is on the lower side and is liable to be enhanced reasonably. Therefore, he submitted that the impugned judgment and award is liable to be modified. 10. Per contra, learned Counsel Sri B.C. Shivanne Gowda, appearing for the insurer, inter alia, submitted that, the impugned judgment and award is liable to be modified by reducing the compensation awarded by the Tribunal. To substantiate the said submission, he submitted that, the Tribunal has erred in assessing the income of the deceased at Rs. 4,000/- per month from vehicle and Rs. 3,000/- per month from supervision charge in all Rs. 7,000/- per month is on the higher side and is liable to be reassessed reasonably. He further submits that the Tribunal has erred in adding another 50% towards future prospects following the law laid down by the Apex Court in Smt. Sarla Verma and Others v Delhi Transport Corporation and Another : AIR 2009 SC 3104 : (2009) 6 SCC 121 : (2009)2 SCC (Cri.) 1002 : 2009 ACJ 1298 (SC) and in deducting l/3rd towards the personal expenses of the deceased, following the law laid down by the Apex Court in Rajesh and Others v Rajbir Singh and Others : (2013) 9 SCC 54 : (2013)3 SCC (Cri.) 817 : 2013 ACJ 1403 (SC). He further submitted that, the Tribunal ought to have deducted 50% towards the personal expenses of the deceased, since he was a bachelor. Therefore, he submitted that the impugned judgment and award is liable to be modified by reducing the compensation awarded towards loss of dependency and towards conventional heads. 11. After careful consideration of the submission of learned Counsel for both parties, after perusal of the materials available on file, 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?" 12. The occurrence of the accident and the resultant death of the deceased H.M. Kishor are not in dispute. It is also not in dispute that, claimants are the parents and unmarried sister of the deceased. The occurrence of the accident and the resultant death of the deceased H.M. Kishor are not in dispute. It is also not in dispute that, claimants are the parents and unmarried sister of the deceased. Further it can be seen that, deceased was aged about 23 years, only son to the claimants 1 and 2, doing agriculture and also doing transport business by owning Tata Ace luggage vehicle and contributing his entire earnings to the welfare of the family and the untimely death of the deceased has affected the social and economic conditions of the family. Further, it emerges that, claimant 3 is the sister of the deceased, she was also travelling along with the deceased and sustained injuries and for that, she has filed her separate claim petition claiming compensation and the Tribunal by its common judgment has awarding a sum of Rs. 3,22,187/- with interest at 6% p.a., from the date of petition till its realisation. Further it emerges as rightly pointed out by the learned Counsel appearing for the insurer that, the Tribunal has erred in adding another 50% towards future prospects and in deducting l/3rd towards personal and living expenses of the deceased instead of 50% since he was a bachelor and is liable to be modified. However, having regard to the facts and circumstances of the case and since deceased was aged about 23 years only and he was an agriculturist and doing transport business owning Tata ace luggage vehicle and the accident was occurred on 2-4-2011 and dependants are his parents and unmarried sister, we reassess his income at Rs. 10,000/- per month instead of Rs. 7,000/- per month as assessed by the Tribunal, for the reason that, except making an oral submission that deceased was earning Rs. 20,000/- per month no credible documents have been produced by the claimants to prove the same. Since deceased was unmarried as on the date of the accident, we deduct 50% towards his personal and living expenses following the law laid down by the Apex Court in Smt. Sarla Verma's case. Out of Rs. 10,000/- per month, if 50% (Rs. 5,000/-) is deducted towards the personal expenses of the deceased his net monthly income comes to Rs. 5,000/-. The proper multiplier applicable is 14' since the age of the younger parent, mother of the deceased was 43 years. Therefore, we redetermine the loss of dependency at Rs. Out of Rs. 10,000/- per month, if 50% (Rs. 5,000/-) is deducted towards the personal expenses of the deceased his net monthly income comes to Rs. 5,000/-. The proper multiplier applicable is 14' since the age of the younger parent, mother of the deceased was 43 years. Therefore, we redetermine the loss of dependency at Rs. 8,40,000/- (Rs. 5,000 x 12 x 14) instead of Rs. 11,76,000/- awarded by the Tribunal and accordingly, it is awarded. 13. Further as rightly pointed out by the learned Counsel for claimants, the amount awarded by the Tribunal towards conventional heads is on the lower side and it needs to be enhanced. Having regard to the facts and circumstances of the case, we award a sum of Rs. 30,000/- towards loss of love and affection at the rate of Rs. 10,000/- to each of the claimants 1 to 3, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation of dead body and funeral expenses. In all, the claimants are entitled to a total compensation of Rs. 9,20,000/- instead of Rs. 12,06,000/- awarded by the Tribunal. There would be a reduction of Rs. 2,86,000/-. 14. Regarding rate of interest is concerned, as rightly pointed out by the learned Counsel appearing for the claimants, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2011. In the light of the judgment of Apex Court and this Court we award the rate of interest at 9% per annum from the date of petition till its realisation instead of 6% awarded by the Tribunal. For the foregoing reasons, the appeals filed by both the claimants and the insurer are allowed in part. The impugned common judgment and award dated 28-11-2013 passed in MVC No. 3401 of 2011, by the Chief Judge, Court of Small Causes and Member, Principal Motor Accident Claims Tribunal, Bangalore, is hereby modified, awarding the compensation of Rs. 9,20,000/- instead of Rs. 12,06,000/- awarded by the Tribunal with interest at 9% p.a., from the date of petition till its realisation. There would be a reduction of compensation of Rs. 2,86,000/-. The insurer is directed to deposit the remaining compensation amount with interest, after deducting the amount paid by it, within three weeks from the date of receipt of a copy of this judgment and award. There would be a reduction of compensation of Rs. 2,86,000/-. The insurer is directed to deposit the remaining compensation amount with interest, after deducting the amount paid by it, within three weeks from the date of receipt of a copy of this judgment and award. The apportionment and manner of disbursement ordered by the Tribunal gets proportionately reduced to the extent of reduction made by this Court. The amount deposited by the insurer shall be transmitted to the jurisdictional Tribunal, immediately. Office to draw the award, accordingly.