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2016 DIGILAW 620 (KAR)

Shanubai v. S. K. Mahaboob Basha

2016-08-11

B.VEERAPPA

body2016
JUDGMENT : B. Veerappa, J. This is claimants' appeal for enhancement compensation against the judgment and award dated 05th September, 2015 made in MVC No. 1329/2014 on the file of the Prl. Senior Civil Judge and MACT-V, Vijayapura, ('MACT' for short) awarding compensation of Rs. 9,20,000/- with interest at 9% per annum from the date of petition till realization. 2. It is the case of the claimants before the MACT that on 17.05.2014 at about 8.15 p.m. near Kumbar Vasti, on Tikota to Babanagar Road, when the deceased was on the way to his agricultural land at Babanagar on his motor cycle bearing registration No. KA-29/E-23, the driver of the goods pick up van bearing registration No. AP-02/U-7364 came from opposite direction in a high speed in rash and negligent manner and dashed against the motor cycle, due to which the deceased sustained grievous injuries and succumbed to the injuries. At the time of the accident, the deceased was aged about 40 years and was hale and healthy and was earning Rs. 7,500/- per month from agricultural work. Therefore, prayed for compensation of Rs. 18,95,000/-. 3. The respondent No. 1 filed written statement and denied the averments made in the claim petition and contended that on the date of the accident, the driver of the goods pick up van bearing registration No. AP-02/U-7364 was holding a valid driving licence and the insurance policy was in force. Therefore, he is not liable to pay the compensation and insurance company has to pay the same. Respondent No.2 filed objections and denied the averments made in the claim petition and admitted that the policy was in force and contended that liability of the insurance company is subject to the terms and conditions of the insurance policy, existence of driving licence and permit. It was also contended that the accident was not occurred due to rash and negligent driving of the goods vehicle, but it was due to the actionable negligence on the part of the deceased himself, and therefore, sought for dismissal of the claim petition. 4. On the basis of the aforesaid pleadings, the MACT framed the following issues : (i) Whether the petitioner proves that oh 17.05.2014 at 08.15 p.m. near Kumbar Vasti, on Tikota to Babanagar Road, the driver of the goods pick up vehicle bearing registration No. AP-02/U-7364 dashed his vehicle as against the motor cycle bearing its reg. 4. On the basis of the aforesaid pleadings, the MACT framed the following issues : (i) Whether the petitioner proves that oh 17.05.2014 at 08.15 p.m. near Kumbar Vasti, on Tikota to Babanagar Road, the driver of the goods pick up vehicle bearing registration No. AP-02/U-7364 dashed his vehicle as against the motor cycle bearing its reg. No. KA-29/E-23 in high speed and in rash and negligent manner and caused the accident resulting the death of one Shivaji, S/o Malaku Rathod? (ii) Whether the respondent No. 2 proves that the accident took place due to rash and negligent riding of motor cycle by the deceased himself? (iii) Whether petitioners prove the age and income of deceased? (iv) Whether the petitioners are entitled for compensation? If so, to what quantum and from which of the respondents? (v) What is final order or award? 5. In order to substantiate the claim, the widow of the deceased/claimant No.1 was examined as RW. 1 and another witness as P.W.2 and got marked documents Exs.P.1 to P.7. The respondent did not adduce any evidence and marked copy of the insurance policy as Ex.R. 1. 6. After considering the entire material on record and after hearing learned counsel for both the parties, the MACT recorded a finding that the claimants proved that the accident occurred on 17.05.2014 was due to the rash and negligent driving of the goods pick up van bearing registration No. AP-02/U-7364 and as a result the deceased succumbed to injuries. The 2nd respondent insurance company failed to prove that the accident took place due to rash and negligent driving of the motor cycle by the deceased and ultimately MACT held that the appellants are entitled to compensation. Accordingly, by the impugned judgment and award, the MACT by order dated 05.09.2015 awarded compensation of Rs. 9,20,000/- with 9% interest per annum from the date of petition till realization. Hence the present appeal by the claimants for enhancement of compensation. 7. The insurance company has not filed any appeal challenging the compensation awarded by the MACT. 8. I have heard the learned counsel for the parties to the lis. 9. Sri. Bapugouda Siddappa, learned counsel for the claimants/ appellants vehemently contended that the MACT was not justified in awarding Rs. 9,20,000/- when the claimants have claimed total compensation of Rs. 7. The insurance company has not filed any appeal challenging the compensation awarded by the MACT. 8. I have heard the learned counsel for the parties to the lis. 9. Sri. Bapugouda Siddappa, learned counsel for the claimants/ appellants vehemently contended that the MACT was not justified in awarding Rs. 9,20,000/- when the claimants have claimed total compensation of Rs. 18,95,000/-, without considering the income of the deceased and the evidence produced and adduced by the claimants. He also contended that the compensation awarded under the conventional heads are on lower side. Therefore, he sought to allow the appeal by enhancing the compensation. 10. Per contra, Smt. Preeti Patil Melkundi, learned counsel for the 2nd respondent, sought to justify the impugned judgment and award and contended that except the oral statement of P.W.1, no material documents are produced to prove the income of the deceased, therefore, sought to dismiss the appeal. 11. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in this appeal is : "Whether the claimants have made out a case for modification of the impugned judgment and award of the MACT for further enhancement?" 12. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record. 13. It is undisputed fact that the deceased Shivaji, husband of 1st claimant, father of claimants 2 to 5 died in a road accident occurred on 17.05.2014 at 8.15 p.m. on account of rash and negligent driving of the driver of the goods pick up van bearing registration No. AP-02/U-7364. It is the specific case of the claimants/appellants that the deceased aged about 40 years at the time of the accident and was earning Rs. 7,500/- per month. The claimant No. 1 examined as P.W.1 has stated on oath that the deceased was earning Rs. 7,500/- per month. The rash and negligent driving of the driver of the goods pick up van is proved and it is also not in dispute that the said vehicle was insured with the 2nd respondent and the policy was in force as on the date of the accident. 7,500/- per month. The rash and negligent driving of the driver of the goods pick up van is proved and it is also not in dispute that the said vehicle was insured with the 2nd respondent and the policy was in force as on the date of the accident. Bx.P. 1 copy of the FIR, Ex.P.2 first information, Ex.P.3 copy of the crime detail form, Ex.P.4 copy of the post-mortem report, Ex.P.5 copy of the accident report form and Ex.P.6 copy of the charge-sheet, clearly indicates that the accident occurred due to rash and negligent driving of the goods pick up van. 14. Taking into consideration the oral and documentary evidence, the MACT has taken income of the deceased at Rs. 6,000/- which is on lower side. Taking into consideration that the deceased was aged 40 years and the accident occurred on 17.05.2014 and Ex.P.7 record of rights, it is appropriate to take income of the deceased at Rs. 7,500/- per month. The MACT, while awarding compensation under the conventional heads, has awarded meager sum which is contrary to the dictum of the Supreme Court in the case of Vimal Kanwar and others v. Kishore Dan and others reported in (2013) 7 SCC 476 : (2013 AAC 2068 (SC)) which reads thus : 32. Admittedly, the date of birth of deceased Sajjan Singh being 1-2-1968; the submission that he would have continued in service up to 1-2-2026, if 58 years is the age of retirement or 1-2- 2028, if 60 years is the age of retirement is accepted. He was only 28 years 7 month old at the time of death. In normal course, he would have served the State Government minimum for about 30 years. Even if we do not take into consideration the future prospect of promotion to which the deceased was otherwise entitled and the actual pay revisions taken effect from 1-1-1996 and 1-1-2006, it cannot be denied that the pay of the deceased would have doubled if he would have continued in services of the State till the date of retirement. Hence, this was a fit case in which 100% increase in future income of the deceased should have been allowed by the Tribunal and High Court, which they failed to do. 33. Having regard to the fact and evidence on record, we estimate the monthly income of deceased Sajjan Singh at Rs. Hence, this was a fit case in which 100% increase in future income of the deceased should have been allowed by the Tribunal and High Court, which they failed to do. 33. Having regard to the fact and evidence on record, we estimate the monthly income of deceased Sajjan Singh at Rs. 9000 x 2 = Rs. 18,000 per month. From this his personal living expenses, which should be ?rd, there being three dependants has to be deducted. Thereby, the "actual salary" will come to Rs. 18,000 - Rs. 6000 = Rs. 12,000 per month or Rs. 12,000 x 12 = Rs. 1,44,000 per annum. As the deceased was 28 years old at the time of death the multiplier of 17 is applied, which is appropriate to the age of the deceased. The normal compensation would then work out to be Rs. 1,44,000 x 17 = Rs. 24,48,000 to which we add the usual award for loss of consortium and loss of the estate by providing a conventional sum of Rs. 1,00,000; loss of love and affection for the daughter Rs. 2,00,000, loss of love and affection for the widow and the mother at Rs. 1,00,000 each i.e. Rs. 2,00,000 and funeral expenses of Rs. 25,000. 34. Thus, according to us, in all a sum of Rs. 29,73,000 would be a fair, just and reasonable award in the circumstances of this case. 35. The rate of interest of 12% is allowed from the date of the petition filed before the Tribunal till payment is made. 36. Respondent 3 is directed to pay the total award with interest (minus the amount if already paid) within three months. Appellant 2 daughter who was aged about 2 years at the time of accident of the deceased has already attained majority; money may be required for her education and marriage. In the circumstances, we direct Respondent 3 to deposit 25% of the due amount in the account of Appellant 1, the wife. Out of the rest 75% of the due amount, 35% of the amount be invested in a nationalised bank by fixed deposit for a period of one year in the name of the daughter, Appellant 2. In the circumstances, we direct Respondent 3 to deposit 25% of the due amount in the account of Appellant 1, the wife. Out of the rest 75% of the due amount, 35% of the amount be invested in a nationalised bank by fixed deposit for a period of one year in the name of the daughter, Appellant 2. Out of the rest 40% of the due amount, 20% each be invested in a nationalised bank by fixed deposit for a period of one year in the name of Appellants 1 and 3, the wife and the mother respectively. 37. The award passed by the Tribunal dated 21-06-2003 and judgment dated 29-07-2011 of the Rajasthan High Court stand modified to the extent above. The appeal is allowed with the aforesaid observation and direction. No separate order as to costs. 15. Having regard to the dictum of the Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 : ( AIR 2009 SC 3104 ), since the deceased left behind five dependents l/4th has to be deducted. 16. In view of the aforesaid reasons, the point raised for consideration in this appeal has to be answered in the affirmative holding that the appellants have made out a case for enhancement. 17. Thus, taking the income of the deceased at Rs. 77,500/-, applying the multiplier 15 as applicable to the age 40 of the deceased and deducting th towards personal expenses, the claimants would be entitled to Rs. 10,12,500/-towards loss of dependency. (Rs. 7,500/- x 12 x 15=Rs. 13,50,000- Rs. 3,37,500/-= Rs. 10,12,500/-) 18. On re-appreciation of the entire material on record, claimants are entitled to the following compensation : Towards loss of dependency Rs. 10,12,500/- Towards loss to estate Rs. 25,000/- Towards love and affection Rs. 1,25,000/- Towards loss of consortium to the widow Rs. 85,000/- Towards transportation of dead body Rs. 20,000/- Towards funeral expenses Rs. 25,000/- TOTAL Rs. 12,92,500/- 19. Thus, claimants are entitled to total compensation of Rs. 12,92,500/- as against Rs. 9,20,000/- awarded by the MACT. 20. In view of the aforesaid reasons, the Appeal is allowed in part. The judgment award dated 05th September, 2015 made in M.V.C. No. 1329/2014 on the file of the Prl. Senior Civil Judge and MACT-V, Vijayapura, is modified and the claimants are entitled to total compensation of Rs. 12,92,500/- as against Rs. 9,20,000/- awarded by the MACT. 20. In view of the aforesaid reasons, the Appeal is allowed in part. The judgment award dated 05th September, 2015 made in M.V.C. No. 1329/2014 on the file of the Prl. Senior Civil Judge and MACT-V, Vijayapura, is modified and the claimants are entitled to total compensation of Rs. 12,92,500/- as against Rs. 9,20,000/- awarded by the MACT and the enhanced compensation would be Rs. 3,72,500/-. The claimants are entitled to interest at 9% per annum on the enhanced compensation from the date of the petition till realization. 21. The apportionment of the enhanced compensation shall be made to the claimants in terms of the judgment and award passed by the MACT.