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2015 DIGILAW 722 (KAR)

Oriental Insurance Company Limited v. Mallika

2015-07-08

C.R.KUMARASWAMY

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JUDGMENT : C.R. Kumaraswamy, J. - This miscellaneous first appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988, against the judgment and award dated 17-9-2014 passed in MVC No. 1923 of 2012 on the file of the II Additional Senior Civil Judge, Member, Motor Accident Claims Tribunal, Mangalore, Dakshina Kannada, awarding compensation of Rs.15,50,000/- with interest at 6% per annum from the date of petition till realisation. 2. This MFA CROB No. 21 of 2015 is filed under Order 41, Rule 22 of Civil Procedure Code, 1908, against the judgment and award dated 17-9-2014 passed in MVC No. 1923 of 2012 on the file of the II Additional Senior Civil judge, Member, MACT, Mangalore, D.K., partly allowing the claim petition for compensation and seeking enhancement of compensation. 3. The case of the claimants in the Claims Tribunal is as under: That on 30-9-2012, Keshava was proceeding by driving his autorickshaw bearing Reg. No. KA-19-D-5100 from his house slowly and when he reached Nethravathi Bridge at about 9.30 a.m., at that time a bus bearing registration No. KA-19-M-9122 driven by its driver with high speed, and in a rash and negligent manner came from Mangalore side and dashed against the autorickshaw. Consequently, Keshava succumbed to injuries. The deceased Keshava was hale and healthy at the time of the accident. He was aged about 44 years. He was earning Rs.20,000/- per month. The claimant 1 is wife of deceased who lost her husband and claimants 2 and 3 are children. The accident occurred due to rash and negligent driving of the bus bearing No. KA-19-M-9122 by its driver. 4. In the Tribunal, respondent 1 remained absent and he was placed ex parte. Respondent 2 has filed objection statement. 5. The Claims Tribunal relied on the evidence of P.W. 1 and Ex. P. 1-FIR and complaint, Ex. P. 2-Notice under Section 160 of Motor Vehicles Act, 1988 Ex. P. 3-copy of spot mahazar, Ex. P. 4-copy of post-mortem report, Ex. P. 5-copy of charge-sheet, Ex. P. 6-copy of IMV report, Ex. P. 7-copy of spot sketch, Ex. P. 8-sketch, Ex. P. 9-Survival Certificate, Ex. P. 10-Driving Licence, and came to a conclusion that the driver of the bus bearing No. KA-19-M-9122 came in a rash and negligent manner and caused this accident. 6. The Claims Tribunal has awarded compensation as under: SI. No. Particulars Amount (in Rs.) 1. P. 7-copy of spot sketch, Ex. P. 8-sketch, Ex. P. 9-Survival Certificate, Ex. P. 10-Driving Licence, and came to a conclusion that the driver of the bus bearing No. KA-19-M-9122 came in a rash and negligent manner and caused this accident. 6. The Claims Tribunal has awarded compensation as under: SI. No. Particulars Amount (in Rs.) 1. Loss of dependency 10,80,000 2. Loss of love and affection 1,50,000 3. Loss of consortium 1,00,000 4. Funeral expenses and transportation expenses 20000 5. Loss of future prospects 2,00,000 TOTAL 15,50,000 7. The interest awarded on the compensation amount is at 6% per annum. 8. I have heard learned Counsel for the appellant as well as learned Counsel for the respondents and also perused the material placed before this Court. 9. Learned Counsel for the appellant submits as under: That the Claims Tribunal has awarded huge compensation of Rs.15,50,000/- by considering the monthly income of the deceased at Rs,9,000/- per month. The claimants have not produced any documentary evidence to prove income of the deceased. The claimants have not produced income tax returns. The Claims Tribunal has erred in adopting the multiplier of `15' as against permissible `14'; the Tribunal has erred in granting Rs.2,00,000/- towards `loss of future prospects' and Rs.1,00,000/- towards `loss of consortium' and a sum of Rs.1,50,000/- towards `loss of love and affection'. Therefore, learned Counsel for the appellant seeks to reduce the compensation amount. 10. The claimants have preferred cross-objections. Learned Counsel for the cross-objectors submits as under: That the deceased was owner-cum-driver of the autorickshaw. He was earning Rs.20,000/- per month. However, the Claims Tribunal has arbitrarily considered the income of the deceased at Rs.9,000/- per month. He further submits while calculating `loss of dependency', 30% of the gross salary income to the existing income for a person in age bracket of 40-50 years has not been added. The Tribunal has awarded only Rs. 1,50,000/- under the head `loss of love and affection'. The Tribunal has not awarded any compensation under the head `loss of estate'. The Tribunal has awarded only Rs,20,000/- under the head `funeral expenses'. The Tribunal has awarded Rs.10,80,000/- under the head `loss of dependency' which is on lower side and it has to be enhanced. The Tribunal has awarded compensation of Rs.2,00,000/- under the head `loss of future prospects' which is on the lower side. The Tribunal has awarded only Rs,20,000/- under the head `funeral expenses'. The Tribunal has awarded Rs.10,80,000/- under the head `loss of dependency' which is on lower side and it has to be enhanced. The Tribunal has awarded compensation of Rs.2,00,000/- under the head `loss of future prospects' which is on the lower side. The cross-objectors also submit that the claim before this Court is to the extent of Rs.14,50,000/- and therefore this Court has got jurisdiction. 11. In this case, the income of the deceased is assessed at Rs.9,000/- per month. The accident occurred in the year 2012. Normally, even for a `Coolie' the income assessed by this Court for the year 2012 is Rs.6,500/- whereas in the instant case, the deceased was owner-cum-driver of the autorickshaw. Therefore, the income assessed at Rs.9,000/- in my view is reasonable. No doubt, one of the contentions raised by the cross-objectors is that income assessed is on the lower side, the cross-objectors have not produced any documents to show as to what was the actual income of the deceased. However, the Tribunal taking into consideration of the evidence placed before it and also considering the facts and circumstances has assessed the income of the deceased at Rs.9,000/-. In my view, the Tribunal has rightly held income of the deceased at Rs.9,000/-. 12. One of the points urged by learned Counsel for the appellant is that the multiplier adopted by the Tribunal is not proper. As per the post-mortem report, the age of the deceased was 44 years. According to 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 AIR SCW 4992 : 2009 ACJ 1298 (SC) multiplier that has to be adopted to persons between age group of 41-45 is `14'. However, the Tribunal has taken `15' as multiplier and awarded compensation of Rs.10,80,000/- under the head `loss of dependency'. The Tribunal has awarded a sum of Rs.2,00,000/- towards `loss of future prospects'. Thus, the total compensation awarded was Rs.15,50,000/-. The cross-objectors seek for enhancement of the Compensation. 13. This is an Appellate Court. The Appellate Court is empowered to rectify the errors, scale down the amount or adjust the amount amongst various heads of compensation. In the instant case, the Tribunal instead of applying the multiplier as `14' has adopted `15'. Thus, the total compensation awarded was Rs.15,50,000/-. The cross-objectors seek for enhancement of the Compensation. 13. This is an Appellate Court. The Appellate Court is empowered to rectify the errors, scale down the amount or adjust the amount amongst various heads of compensation. In the instant case, the Tribunal instead of applying the multiplier as `14' has adopted `15'. The contention of the cross-objectors is income assessed by the Tribunal is on the lower side. Taking submission into consideration, in my view, though multiplier adopted is `15' instead of `14' which had to be adopted, as stated above, this amount will be adjusted since the income taken is at Rs.9,000/- per month which may be on lower side. Though the cross-objectors claim that the income has to be increased, this Court has to examine whether income has to be increased and in this case there is no documentary evidence to point out as to what is the exact income.4 Therefore, in my view, the income assessed by the Tribunal is reasonable. The compensation awarded by the Tribunal is just and reasonable. I do not find any ground to interfere with the impugned judgment and award. Even I do not find any ground to increase the compensation as claimed by the cross-objectors. 14. In view of the above discussion, I pass the following: ORDER (i) The appeal and cross-objections are dismissed. (ii) The amount in deposit shall be transmitted to the concerned Tribunal.