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2016 DIGILAW 153 (KAR)

KENCHAMMA v. BASAVARAJU

2016-02-12

N.K.PATIL, S.SUJATHA

body2016
JUDGMENT : N.K. PATIL, J. 1. This appeal by the appellants-claimants is directed against the impugned judgment and award dated 20-4-2013, passed in MVC No. 11/2012, by the Presiding Officer, AD HOC District and Sessions Judge, Fast Track Court-III (Sessions), Bangalore Rural District, Bangalore, (hereinafter referred to as `Tribunal' for short), for enhancement of compensation, on the ground that a sum of Rs. 4,55,000/- awarded by the Tribunal under different heads with interest at 6% per annum from the date of petition till realisation, as against the claim RS. 20,00,000/-, on account of the death of the deceased Sri. Guruswamy, in the road traffic accident is inadequate. 2. In brief, the facts of the case are : The appellants are the wife and children of the deceased. They filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents, on account of the death of the deceased in the road traffic accident, contending that, on 29-10-2011 at 7.25 p.m. deceased and his son were going on NH.4 road i.e. on Bangalore-Tumkur Main Road near Tejas Daba, Sompura Hobli, from Bangalore side towards Tumkur on the left of the road, at that time, the rider of the Motor Cycle bearing Reg. No. KA.52.H.9564 came from back in a rash and negligent manner and hit to deceased and due to which, he sustained severe injuries. Immediately, he was shifted to Government Hospital, Tumkur, but he succumbed to the injuries on the same day at 9.30 p.m. It is the further case of the appellants that, deceased was aged about 50 years, hale and healthy prior to the accident and working as Mason and earning RS. 10,000/- per month and looking after the welfare of the family by contributing his entire earnings to the family. 3. 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 claim petition in part and awarded the compensation of RS. 4,55,000/- under different heads with interest at 6% p.a., from the date of petition till realisation. 4. Being dissatisfied 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 Insurer. 6. 4,55,000/- under different heads with interest at 6% p.a., from the date of petition till realisation. 4. Being dissatisfied 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 Insurer. 6. The submission of the learned counsel appearing for the appellants, at the outset is that, the Tribunal has erred in not awarding reasonable compensation towards loss of dependency, towards conventional heads and rate of interest and therefore, it is liable to be modified. To substantiate the said submission, he submitted that, deceased was aged about 50 years, mason by profession, there are 7 dependants, out of which, appellant Nos. 1, 5 and 6 are dependants. But this aspect of the matter has not been considered or appreciated by the Tribunal while assessing the income of the deceased and what is assessed is on the lower side and the same is liable to be re-assessed between Rs. 6,500/- to Rs. 7,000/- per month, after deducting ¼th towards personal and living expenses and applying multiplier of ‘13', reasonable compensation may be awarded towards loss of dependency. Further, he submits that, compensation awarded by the Tribunal towards conventional heads and the rate of interest is on the lower side and is liable to be enhanced reasonably in the light of the judgment of the Apex Court and this Court. Therefore, he submitted that the impugned judgment and award is liable to be modified. 7. As against this, learned counsel appearing for the Insurer, inter alia, contended and substantiated that the impugned judgment and award passed by the Tribunal is just and proper and after due appreciation of the oral and documentary evidence available on file and after deducting ?rd towards personal expenses of the deceased as the appellant Nos. 2 to 5 are not dependants and only appellant Nos. 1, 6 and 7 are dependents and therefore, it does not call for interference. However, he fairly submitted that the amount awarded by the Tribunal towards conventional heads is on the lower side and the same may be considered in accordance with law. 8. 2 to 5 are not dependants and only appellant Nos. 1, 6 and 7 are dependents and therefore, it does not call for interference. However, he fairly submitted that the amount awarded by the Tribunal towards conventional heads is on the lower side and the same may be considered in accordance with law. 8. After hearing learned counsel appearing for the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, it emerges that, occurrence of the accident and the resultant death of the deceased are not in dispute. It is also not in dispute that deceased was aged about 50 years, hale and healthy prior to the accident, mason by profession, only earning member in the family and the dependants are appellant Nos. 1, 5, 6 and 7 and other children as majors and the accident is of the year 2011. Taking all these aspects into consideration we re-assess the income of the deceased at RS. 6,500/- per month to meet the ends of justice instead of RS. 3,750/- per month as assessed by the Tribunal. Out of which, if ¼th (RS. 1,625/-) is deducted towards the personal and living expenses of the deceased instead of ?rd deducted by the Tribunal, his net contribution to the family comes to RS. 4,875/- per month. The appropriate multiplier applicable is `13' since deceased was aged about 50 years in view of the law laid down by the Apex Court in Sarla Verma's case, reported in 2009 ACJ 1298 as rightly adopted by the Tribunal. Therefore, we re-determine the loss of dependency at RS. 7,60,500/- (RS. 4,875/- x 12 x 13) instead of RS. 3,90,000/- awarded by the Tribunal and accordingly, it is awarded. 9. Having regard to the facts and circumstances of the case, on account of the untimely death of the deceased, wife has lost her husband and minor children are deprived of the love and affection, guidance and security of their father and in view of law laid down by the Apex Court and this Court, we deem it fit to award a sum of RS. 1,00,000/- towards loss of consortium, RS. 1,75,000/- towards loss of love and affection at the rate of Rs. 20,000/- to the each of the appellant Nos. 1 to 7, RS. 25,000/- towards loss of estate and RS. 1,00,000/- towards loss of consortium, RS. 1,75,000/- towards loss of love and affection at the rate of Rs. 20,000/- to the each of the appellant Nos. 1 to 7, RS. 25,000/- towards loss of estate and RS. 25,000/- towards transportation and funeral expenses. In all, the appellants are entitled to a total compensation of RS. 10,85,500/- instead of RS. 4,55,000/- as awarded by the Tribunal. 10. Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the appellants, 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 on the enhanced compensation instead of 6% awarded by the Tribunal. There would be an enhancement of RS. 6,30,500/- with interest at 9% p.a., from the date of petition till its realisation. 11. For the foregoing reasons, the appeal filed by the appellants is allowed in part. The impugned judgment and award dated 20-4-2013, passed in MVC No. 11/2012, by the Presiding Officer, ADHOC District and Sessions Judge, Fast Track Court-III (Sessions), Bangalore Rural District, Bangalore, is hereby modified, awarding a sum of RS. 6,30,500/- with interest at 9% p.a. from the date of petition till its realisation, in addition to the compensation awarded by the Tribunal. 12. 2nd respondent Insurer is directed to deposit the enhanced compensation of RS. 6,30,500/- with interest at 9% p.a., from the date of petition till the date of realisation, within a period of three weeks from the date of receipt of a copy of this judgment. 13. Immediately on such deposit by the Insurer, out of the enhanced compensation of RS. 6,30,500/-, a sum of RS. 4,00,000/- with interest shall be invested in the Fixed Deposit in the name of appellant No. 1, wife of the deceased, in any Nationalised or Scheduled or Grameena Bank, for a period of 10 years, renewable by another 10 years, with liberty reserved to her to withdraw the interest accrued on it, periodically. 14. Remaining sum of Rs. 2,30,500/- with proportionate interest shall be released in favour of appellant Nos. 1 to 7 in equal proportion. 15. Draw the award accordingly.