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2017 DIGILAW 559 (KAR)

Channavva v. Dharmendra

2017-03-06

H.B.PRABHAKARA SASTRY, VINEET KOTHARI

body2017
JUDGMENT : H.B. Prabhakara Sastry, J. The appellants are the claimants in Motor Accident Claims Tribunal below, have sought for enhancement of the compensation ordered by the MACT at Gadag in MVC No.138/2013 on 25-2-2015. 2. The grounds raised by the appellants in this appeal memo are that, the income of the deceased has been taken at a meager amount, compensation under the head future prospects- has not been awarded and further the compensation awarded under different heads are also of very meager amount. As a result they have been awarded with a very small amount of compensation of Rs.7,35,000/- with interest when in fact they had claimed a sum of Rs.25,00,000/-. 3. Notices were ordered. Even after the service of notice, Respondent No.1/owner has remained absent. The notice to respondent No.3/driver was dispensed with, however, the second respondent/Insurance Company is contesting the matter. 4. The MACT records were called for and the same are placed before us. 5. Heard arguments from both side and perused the materials placed before us. 6. It is not in dispute that the appellants herein, claiming to be the legal representatives/dependents of one deceased Sri. Gurappa Waddar, filed claim petition in MACT below under Section 166 of Motor Vehicles Act, 1988, claiming compensation alleging that said Sri. Gurappa Waddar died in a road traffic accident said to have been occurred in Laxmeshwar on 5-3-2013. According to the claimants/appellants, the accident occurred due to the rash and negligent driving of a Tum Tum Autorickshaw bearing Registration No.Ka-26/A-0727 by its driver. The first, second and third respondents are owner, insurer and driver of that vehicle respectively. Claimant No.1 claiming herself to be the wife to deceased and claimant Nos.2 to 9 as the children of the deceased and the first claimant, had in total claimed a compensation of Rs.25,00,000/- with interest from the respondents. The MACT after recording the evidence from both the side, by the impugned order dated 25-2-2015 allowed the claim petition in part by awarding the compensation under following heads and sums. Towards loss of dependency Rs. 6,45,000/- Towards loss of consortium Rs. 15,000/- Towards loss of estate Rs. 15,000/- Towards loss of love & affection Rs. 50,000/- Towards transportation of dead body Rs. 5,000/- Towards funeral expenses of deceased Rs. 5,000/- Total Rs. Towards loss of dependency Rs. 6,45,000/- Towards loss of consortium Rs. 15,000/- Towards loss of estate Rs. 15,000/- Towards loss of love & affection Rs. 50,000/- Towards transportation of dead body Rs. 5,000/- Towards funeral expenses of deceased Rs. 5,000/- Total Rs. 7,35,000/- Thus, in total a sum of Rs.7,35,000/- with interest at the rate of 6% per annum from the date of petition till the deposit of the award amount has been awarded by the MACT. It is the said order, the claimants have challenged in this appeal seeking enhancement in the compensation awarded. 7. In his arguments, learned counsel for the appellants reiterated the grounds taken up by them in the memorandum of appeal. 8. Learned counsel for the second respondent submitted that the compensation awarded is adequate as such, no interference by this Court is warranted in the matter. 9. After hearing both side and on thorough scrutiny of the impugned order and the materials placed before us, it is noticed that the deceased was an agriculturist. Though, the claimants have stated that the deceased had an income of Rs.15,000/- per month, but no documents were produced by them to substantiate the same. The Tribunal below has arrived at a conclusion that the notional income of the deceased is required to be taken at Rs.4,500/- per month for which it has not assigned any reasons, We are not convinced by the said amount as no reasons are given to fix such an amount, which is not an adequate sum in our view. On the other hand, in similar situations, where no documents to prove income are produced, this Court has been taking the notional income of the deceased during the year 2013, at the rate of Rs.7,000/- per month. As such we are of the opinion that in the instant case also, the income of the deceased is required to be taken at Rs.7,000/- per month, which comes to Rs.84,000/- per annum. Admittedly the appellants/claimants who claim to be the dependents of the deceased are nine in numbers. As such, 75th of the income of the deceased is required to be deducted towards his personal expenses, which amount comes to Rs.15,800/- per annum. After deducting the same in the gross annual income of the deceased, the total contribution of the deceased towards his family would come to Rs.67,200/- per annum. As such, 75th of the income of the deceased is required to be deducted towards his personal expenses, which amount comes to Rs.15,800/- per annum. After deducting the same in the gross annual income of the deceased, the total contribution of the deceased towards his family would come to Rs.67,200/- per annum. The age of the deceased which is taken at 40 years based upon the postmortem report at Ex.P-5 and Inquest Panchanama at Ex.P8 is not in dispute. The multiplier applicable to the said age group is 15. The contribution from the deceased towards his family which is Rs.67,200/- multiplied by multiplier 15 comes to Rs.10,08,000/-. This amount would be the compensation towards loss of dependency. 10. The appellants have claimed compensation under the head 'future prospects' also. However, the Tribunal has not given any reason for not considering the same. The learned counsel for the second respondent vehemently opposed awarding any compensation under the said head contending that the judgment in Rajesh v. Rajbir Singh, reported in 2013 (9) SCC 54 , which prescribes the ground of compensation under the head of 'future prospects' is under consideration before a larger Bench of Hon'ble Supreme Court of India. However, we are of the opinion that, merely because the judgment is said to be under consideration before a larger Bench of Apex Court, it does not preclude us from relying upon the said judgment and to award the compensation under the head 'future prospects'. 11. According to the said judgment where the deceased falls in the age group of 40-50 years, the income of the deceased must be enhanced by 30%. Thus, 30% of the award of Rs.10,08,000/- comes to Rs.3,02,400/-. We are of the opinion that, this amount the Tribunal ought to have awarded under the head 'loss of future prospects'. 12. Even though the MACT has awarded the compensation under other heads as observed above, we are of the view that they are also required to be modified suitably in the circumstances of the present case. As such, towards the loss of consortium and towards loss of estate, we intend to award a compensation of Rs.50,000/- and Rs.25,000/- respectively. Considering the total number of dependents of the deceased, the compensation towards loss of love and affection would be a total of Rs.1,00,000/-. As such, towards the loss of consortium and towards loss of estate, we intend to award a compensation of Rs.50,000/- and Rs.25,000/- respectively. Considering the total number of dependents of the deceased, the compensation towards loss of love and affection would be a total of Rs.1,00,000/-. Towards transportation of the dead body and funeral expenses of the deceased, put together, we intend to award a compensation of Rs.25,000/-. Thus, in total, all put together, in our view, the appellants/claimants are entitled to a total sum of Rs.15,10,400/- We do not find it necessary to modify the rate of interest awarded and the apportionment ordered by the MACT and the liability fastened on the respondents to pay the awarded amount. Accordingly, we proceed to pass the following: ORDER (i) The appeal is allowed in part. (ii) The judgment and award dated 25-2-2015 passed by the MACT, Gadag in MVC No.138/2013 is modified to the extent that, the global compensation awarded at Rs.7,35,000/- is enhanced and modified to Rs.15,10,400/- (Rupees Fifteen Lakhs Ten Thousand and Four Hundred only). (iii) The rest of the order of the MACT with respect to the awarding interest, its rate, and apportionment of the award amount among the claimants remains unaltered or modified. (iv) Since the notice to respondent No.3 is dispensed with, at the request of the appellants, he stands absolved from his liability towards the appellants. 13. Draw award accordingly.