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2015 DIGILAW 959 (KAR)

Maxim Peter Pinto v. Kevin Oscar D'souza

2015-08-20

N.K.PATIL, P.S.DINESH KUMAR

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JUDGMENT : N.K. Patil, J. 1. Though this appeal is posted for orders, it is taken up for final disposal with the consent of the learned Counsel appearing for the parties. This is claimants' appeal filed against the impugned judgment and award dated 5th January, 2013 passed in MVC No. 12 of 2011 on the file of the Member, MACT-IV and III Additional District and Sessions Judge, Dakshina Kannada, Mangalore (hereinafter referred to as 'Tribunal' for short), for enhancement of compensation. 2. The Tribunal by its judgment and award has awarded a sum of Rs. 6,00,000/- under different heads with interest at 6% per annum from the date of petition till the date of deposit, as against the claim of the claimants for a sum of Rs. 30,00,000/-, on account of the death of the deceased late Miss Priya Reshma Pinto in the road traffic accident. 3. In brief, the facts of the case are: "The 1st and 2nd appellants are parents of the deceased and 3rd and 4th appellants are brothers of the deceased and they have filed a claim petition before the Tribunal under Section 166 of Motor Vehicles Act, 1988, claiming compensation of Rs. 30,00,000/- on account of the death of the deceased in the road traffic accident, contending that, when the deceased Miss Priya Reshma Pinto was going along with her relative on 3-10-2010 at about 9.00 a.m. on a motorcycle bearing Reg. No. KA-20V-6553 as a pillion rider, towards church on motorcycle, driven by Kevin, in a high speed and in a rash and negligent manner, near Mata of Uppinangady, Kasaba Village of Puttur Taluk on NH-48, the rider lost control on the said motorcycle. As a result, the deceased fell on the road and due to the impact she sustained multiple grievous injuries and lost consciousness. Immediately she was shifted to Fr. Muller's College Hospital, Mangalore. Though she was given treatment, she succumbed to the injuries on 6-10-2010 at about 11.35 a.m. The appellants have spent reasonable amount towards transportation of the dead body and funeral charges. It is the case of the appellants that they are dependents on the deceased. Deceased was the only bread earning member." 4. Muller's College Hospital, Mangalore. Though she was given treatment, she succumbed to the injuries on 6-10-2010 at about 11.35 a.m. The appellants have spent reasonable amount towards transportation of the dead body and funeral charges. It is the case of the appellants that they are dependents on the deceased. Deceased was the only bread earning member." 4. It is the further case of the appellants that, the deceased was aged about 23 years at the time of accident, hale and healthy and she had acquired the certificate of Diploma in Education and working as a teacher in St. Mary's English Higher Primary Medium, Falnir, Mangalore, earning Rs. 7,233/- p.m. and was expecting increment at the time of accident. Apart from that, she was earning Rs. 4500/- p.m. out of private tuition. Appellants 1 and 2 are aged parents and appellants 3 and 4 and unemployed brothers of the deceased and she was contributing the entire income to the welfare of her family. Due to her untimely death, they suffered socially and economically and sudden death of the deceased has caused much hardship to her family members. The said claim petition had come up for consideration before the Tribunal. The Tribunal after appreciating the oral evidence of P.Ws. 1 to 4 and documentary evidence at Exs. P. 1 to P. 43 and other material available on record, has allowed the claim petition in part adding 30% towards future prospects to the income of the deceased Rs. 6,375/- deducting 50% towards personal expenses and applying multiplier 11', awarded Rs. 5,46,876/- towards loss of dependency, Rs. 10,000/- towards funeral and obsequies ceremony, Rs. 10,000/- towards loss of love and affection, Rs. 10,000/- towards loss of estate and Rs. 22,428/- towards medical expenses in all Rs. 5,99,304/- rounded off to Rs. 6,00,000/- with interest at 6% p.a., from the date of petition till the date of deposit. Not being satisfied with the compensation awarded by the Tribunal, the appellants have presented this appeal, for enhancement of compensation. 5. The submission of the learned Counsel appearing for the appellants at the outset is that, the Tribunal has erred in taking only the basic salary of the deceased and in the light of the judgment of Apex Court and this Court and as per Ex. P. 42 the salary register, the income of the deceased at Rs. 5. The submission of the learned Counsel appearing for the appellants at the outset is that, the Tribunal has erred in taking only the basic salary of the deceased and in the light of the judgment of Apex Court and this Court and as per Ex. P. 42 the salary register, the income of the deceased at Rs. 7,233/- p.m. may be accepted and 30% may be added towards future prospects and out of it, 50% may be deducted towards personal expenses as the deceased was unmarried and appropriate multiplier of 13' may be adopted taking the age of the mother of the deceased as 50 years for calculation of loss of dependency. The Tribunal also erred in not awarding reasonable compensation towards conventional heads. 6. He further submitted that the rate of interest awarded at 6% per annum is also on the lower side since the accident is of the year 2010 and the same may be enhanced to 9% to 10% per annum. Therefore, the impugned judgment and award passed by the Tribunal is liable to be modified. 7. Respondent 2-Insurer is served and unrepresented. 8. After considering 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 arise for consideration is: "Whether the quantum of compensation awarded by the Tribunal is just and reasonable?" 9. It is not in dispute that the deceased died in the road traffic accident. Further it is not in dispute that, the deceased was aged about 23 years at the time of accident, hale and healthy and looking after the welfare of the appellants. The claimants are none other than the parents and brothers of the deceased, who have lost their future security due to her untimely death. She had acquired the certificate of Diploma in Education and working as a teacher in St. Mary's English Higher Primary Medium, Falnir, Mangalore and earning Rs. 7,233/- p.m. as per Ex. P. 42 and apart from that she was earning Rs. 4,500/- p.m. out of private tuition. Having regard to the age, avocation and year of accident and in the light of the judgment of Apex Court and this Court, we can safely reassess the income of the deceased at Rs. 7,233/- p.m. as per Ex. P. 42 and apart from that she was earning Rs. 4,500/- p.m. out of private tuition. Having regard to the age, avocation and year of accident and in the light of the judgment of Apex Court and this Court, we can safely reassess the income of the deceased at Rs. 7,233/- per month to meet the ends of justice as against the income assessed by the Tribunal. To this 30% is added towards future prospects which comes to Rs. 9,402/- p.m. Out of it, if 50% is deducted towards the personal expenses of the deceased, it comes to Rs. 4,701/- and in the light of decision 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 AIR SCW 4992 : 2009 ACJ 1298 (SC), the appropriate multiplier applicable is 13' for the age of the mother of the deceased, being 50 years. Accordingly, the appellants are entitled towards loss of dependency at Rs. 7,33,356/- (Rs. 4,701/- x 12 x 13). 10. Considering the facts and circumstances of the case that, the parents have lost their daughter and brothers have lost their sister and love and affection, inspiration and guidance in life, we deem it fit to award Rs. 25,000/- towards loss of estate, Rs. 1,00,000/- towards loss of love and affection at the rate of Rs. 25,000/- to each appellant and Rs. 25,000/- towards funeral and transportation expenses. However, the Tribunal has rightly awarded a sum of Rs. 22,428/- towards medical expenses. Therefore, interference by this Court is not called for. In all, the claimants are entitled for Rs. 9,05,784/- as against Rs. 6,00,000/- awarded by the Tribunal. 11. As rightly pointed out by the learned Counsel appearing for the appellant, the rate of interest awarded by the Tribunal at 6% p.a. is on the lower side as accident occurred in the year 2010. Therefore, in the light of catena of judgments, we deem it fit to award 8% interest per annum on enhanced compensation. Having regard to the facts and circumstances of the case, as stated above, appeal is allowed in part. The impugned judgment and award passed by the Tribunal dated 5th January, 2013 in MVC No. 12 of 2011 is hereby modified. The total compensation payable comes to Rs. 9,05,784/- as against Rs. Having regard to the facts and circumstances of the case, as stated above, appeal is allowed in part. The impugned judgment and award passed by the Tribunal dated 5th January, 2013 in MVC No. 12 of 2011 is hereby modified. The total compensation payable comes to Rs. 9,05,784/- as against Rs. 6,00,000/- awarded by the Tribunal. There will be an enhancement of Rs. 3,05,784/- with 8% interest per annum. The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 3,05,784/- with interest at 8% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment. Out of the enhanced compensation, Rs. 1,00,000/- each with proportionate interest shall be invested in the Fixed Deposit in any Nationalised or Scheduled Bank, in the name of the 1st and 2nd appellants-father and mother for a period of five years and renewable for another five years, with liberty to them to withdraw the interest accrued on it periodically. The remaining Rs. 1,05,784/- with proportionate interest shall be released in favour of the 1st and 2nd appellants in equal proportion, immediately, on deposit by the 2nd respondent-Insurer. Draw the award, accordingly.