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2016 DIGILAW 155 (KAR)

Prema N. Ithal v. C. S. Parameshwara Achar

2016-02-12

N.K.PATIL, S.SUJATHA

body2016
JUDGMENT : N.K. Patil, J. This appeal by the appellants-claimants is directed against the impugned judgment and award dated 25-2-2013, passed in MVC No. 234/2012, by the District Judge, Additional Motor Accident Claims Tribunal-II, I Fast Track Court, Shimoga, (hereinafter referred to as 'Tribunal' for short), for enhancement of compensation, on the ground that, a sum of Rs. 4,88,070/- awarded by the Tribunal under different heads with interest at 6% per annum from the date of petition till payment, as against the claim Rs. 21,75,000/- on account of the death of the deceased Sri. U.N. Narayana Ithal, in the road traffic accident is inadequate. 2. In brief, the facts of the case are : The appellants are the wife and son 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, contend in that, on 26-12-2011, deceased had been for catering contract work and at about 6.45 p.m. he was returning home by walk after finishing his work in front of SBM bank near 100 feet road, Vinobanagar, Shimoga, at that time the rider of the Motor cycle bearing Reg. No. K.A. 14U. 1888 came in a rash and negligent manner and dashed to him from back side and thereby caused the accident. Due to which, deceased sustained injuries and unfortunately, he died on 29-12-2011 at Adarsha Nursing Home at Udupi. It is the further case of the appellants that, deceased was aged about 56 years, hale and healthy prior to the accident and doing catering contract work and earning Rs. 25,000/- 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. 4,88,070/- under different heads with interest at 6% p.a., from the date of petition till payment. 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. 4,88,070/- under different heads with interest at 6% p.a., from the date of petition till payment. 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, deceased was aged about 56 years, doing catering contract work, an income tax assessee and regularly paying the income tax and he has produced the Income Tax returns as per Exs. P34 to P36 for last three assessment years and that has not been accepted by the Tribunal while assessing the income of the deceased, on the technical ground that, appellants have not produced certified copy of the same and has assessed his income only at Rs. 6,000/- per month which is on the lower side and is liable to be re-assessed reasonably at least at Rs. 14,000/- per month and after deducting ?rd towards personal and living expenses of the deceased and applying multiplier of 9', reasonable compensation may be awarded towards loss of dependency. Further, he submits that, the 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 therefore, it does not call for interference. However, he fairly submitted that the compensation 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 the 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, the only point that arises for our consideration is : Whether the compensation awarded by the Tribunal is just and reasonable? 9. 8. After hearing the 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, the only point that arises for our consideration is : Whether the compensation awarded by the Tribunal is just and reasonable? 9. The 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 56 years, hale and healthy prior to the accident, doing Catering contract work. It is significant to note that, deceased has filed his income-tax returns as per Exs. P34 to P36 and paying the tax regularly, but the appellants have not produced certified copy of document issued by the jurisdictional Income-tax Officer for accepting the returns filed by the deceased and non-production of the same does not take away the legitimate right of the appellants. Having regard to the age and occupation of the deceased, dependants are his wife and son and the year of accident, we re-assess his income at Rs. 10,000/- per month instead of Rs. 6,000/- per month as assessed by the tribunal to meet the ends of justice. Out of which, if ?rd (Rs. 3,333/-) is deducted towards the personal and living expenses of the deceased, his contribution to the family comes to Rs. 6,667/- per month. The appropriate multiplier applicable is 9' since deceased was aged about 56 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 redetermine the loss of dependency at Rs. 7,20,036/- (Rs. 6,667/- x 12 x 9) instead of Rs. 4,32,000/- awarded by the tribunal and accordingly, it is awarded. 10. 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 son is deprived of the love and affection, guidance and security of his father and in the light of the 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. 1,00,000/- towards loss of love and affection at the rate of Rs. 50,000/- to the appellant Nos. 1 and 2, Rs. 25,000/- towards loss of estate and Rs. 1,00,000/- towards loss of consortium, Rs. 1,00,000/- towards loss of love and affection at the rate of Rs. 50,000/- to the appellant Nos. 1 and 2, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses. However, the tribunal has justified in awarding a sum of Rs. 31,070/- towards medical expenses as per the medical bills since the deceased has taken treatment from 26-12-2011 to 29-12-2011 at Adarsha Nursing Home at Udupi and therefore, it does not call for interference. In all, appellants are entitled to the total compensation of Rs. 10,01,106/- instead of Rs. 4,88,070/- awarded by the Tribunal. 11. 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. 5,13,036/- with interest at 9% p.a., from the date of petition till its realisation. 12. For the foregoing reasons, the appeal filed by the appellants is allowed in part. The impugned judgment and award dated 25-2-2013, passed in MVC No. 234/2012, by (he District Judge, Additional Motor Accident Claims Tribunal-II, I Fast Track Court, Shimoga, is hereby modified awarding a sum of Rs. 5,13,036/- with interest at 9% p.a., from the date of petition till its realisation, in addition to the compensation awarded by the Tribunal. 13. The Insurer is directed to deposit the enhanced compensation of Rs. 5,13,036/- 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. 14. Immediately on such deposit by the Insurer, the enhanced compensation of Rs. 5,13,036/-, a sum of Rs. 3,00,000/- with proportionate 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 5 years, with liberty reserved to her to withdraw the interest accrued on it, periodically. 15. Remaining sum of Rs. 3,00,000/- with proportionate 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 5 years, with liberty reserved to her to withdraw the interest accrued on it, periodically. 15. Remaining sum of Rs. 2,13,036/- with proportionate interest shall be released in favour of appellant No. 1 immediately. 16. Draw the award accordingly. 17. Learned counsel Sri S.V. Hegde Mulkhand, is permitted to file vakalath for Insurer, within four weeks from today.