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2016 DIGILAW 186 (KAR)

Maimuna v. Jagadisha K. Shenava

2016-02-22

L.NARAYANA SWAMY

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JUDGMENT : L. Narayana Swamy, J. This appeal is filed by the claimants being aggrieved by the impugned judgment and award dated 31-10-2011 passed in MVC No. 37/2010 on the file of the Additional Senior Civil Judge and MACT, Udupi, (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. 5,46,460/- 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. 21,18,800/-, on account of death of deceased late Ummarabba, in the road traffic accident. 3. In brief, the facts of the case are : The appellants are wife, children and parents of the deceased and they have filed a claim petition before the Tribunal, claiming compensation of Rs. 21,18,800/-, on account of the death of the deceased in the road traffic accident, contending that, on 9-11-2009 at about 7.45 p.m., while the claimant was proceeding on motor bike near Sunny Centre, Mulur Village, the driver of the Car bearing Registration No. KA-19-/MA-473, came in high speed in rash and negligent manner and dashed against the motor bike, due to which, the deceased fell down and sustained grievous brain injury and succumbed to the injuries in the hospital. It is the further case of the appellants that, the deceased was aged about 34 years at the time of accident, hale and healthy and earning more than Rs. 9,000/-per month by working as mason looking after the welfare of the family and due to his untimely death they suffered socially and economically. 4. 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. 5,46,460/- under different heads with interest at 6% p.a., from the date of petition till the date of realization. 5. Not being satisfied with the compensation awarded by the Tribunal the appellants have presented this appeal, for enhancement of compensation. 6. The learned counsel appearing for the appellants at the outset submits that, the Tribunal has committed an error in taking monthly income of the deceased at Rs. 3,000/-p.m. instead of Rs. 5. Not being satisfied with the compensation awarded by the Tribunal the appellants have presented this appeal, for enhancement of compensation. 6. The learned counsel appearing for the appellants at the outset submits that, the Tribunal has committed an error in taking monthly income of the deceased at Rs. 3,000/-p.m. instead of Rs. 9,000/- p.m. by taking into account the year of accident for calculating loss of dependency and compensation awarded under the head love and affection is also on lower side. Hence he requests this Court to re-determine the compensation by awarding reasonable compensation, modifying the impugned judgment and award passed by the Tribunal. 7. Per contra, the 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. It is passed after considering the oral and documentary evidence and interference by this Court is not called for. 8. After considering the submissions made by the learned counsel appealing 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 question 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 34 years at the time of accident, hale and healthy and looking after the welfare of the appellants. The Tribunal is not justified in taking income of the deceased at Rs. 3,000/- per month. In support of the claim, claimants could not produce any documents to prove the income of the deceased as he was working as a mason. That itself is not a ground to assume that he was earning only Rs. 3,000/- p.m. It is the duty on the part of the Tribunal to presume that one cannot feed the family without any work as he has to feed his three children, wife and parents. Therefore, the income of the deceased is assessed at Rs. 9,000/- p.m., considering the year of the accident and place of residence etc. Out of it, if ?th is deducted towards the personal expenses of the deceased, it comes Rs. 7,200/-. Therefore, the income of the deceased is assessed at Rs. 9,000/- p.m., considering the year of the accident and place of residence etc. Out of it, if ?th is deducted towards the personal expenses of the deceased, it comes Rs. 7,200/-. In the light of the decision in Sarla Vermas case ( AIR 2009 SC 3104 ), the appropriate multiplier applicable is 16. Accordingly, the appellants are entitled towards loss of dependency at Rs. 13,82,400/- (7,200 x 12 x 16). I deem it fit to award Rs. 1,00,000/- as against Rs. 10,000/- awarded towards loss of consortium. Rs. 25,000/- each to three minor children is awarded under the head loss of love and affection as against Rs. 50,000/-. Rs. 40,000/- towards conventional head as against Rs. 10,000/-. Rs. 10,000/- is deleted which is awarded under the head of Loss of estate. 10. In view of the above, the total amount to be awarded to the claimants-appellants will be as follows : Convention Head Amount Loss of dependency 13,82,400/- Loss of consortium 1,00,000/- Loss of love and affection 75,000/- Funeral Expenses and Transportation 40,000/- Medical expenses 34,460/- Total 16,31,860/- 11. Having regard to the facts and circumstances of the case as stated above, the impugned judgment and award passed by the Tribunal dated 31-10-2011 in MVC No. 37/2010 is hereby modified. The total enhanced compensation payable comes to Rs. 10,85,400/- which shall carry interest at 6% p.a. 12. The Insurer is directed to deposit the enhanced compensation of 10,85,400/- with interest at 6% 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. 13. Out of the enhanced compensation appellant Nos. 2, 3 and 4 are minor children of the deceased are entitled for Rs. 2,00,000/- each to be deposited in any of the Nationalised Bank till they attain majority and 1st appellant is to withdraw the accrued interest. 14. Disbursement of the remaining compensation after the entire compensation is realised from the second respondent-insurer. 15. Accordingly, appeal is allowed in part.