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2017 DIGILAW 708 (KAR)

Subedar v. K. Selvaraj

2017-04-06

B.A.PATIL, B.VEERAPPA

body2017
JUDGMENT : B. Veerappa, J. 1. Though this appeal is listed for admission, with the consent of learned counsel for both the parties, the matter is taken up for final disposal. 2. The claimants filed the present appeal for enhancement of compensation, against the judgment and award dated 25.04.2016 made in MVC No. 1373/2014 on the file of the Member, MACT-VII, Vijayapura, awarding compensation of Rs. 7,42,000/- with interest at 6% per annum from the date of petition till deposit. 3. It is the case of the claimants before the Tribunal that on 04.08.2010 at about 21.30 hours, when the deceased Pandurang, S/o Subedar Mundaphani, after completion of his work at Zankeshwar Automobile, Akaluj, was returning to Kondabavi on his motor cycle bearing registration No. MH-45/G-8150 on Akaluj-Kondabavi road in a moderate speed and on extreme left side of the road, and reached near the land of Mahadev Ghadage, at that time one truck bearing registration No. KA-Ol/AA-5768 came from opposite direction driven by its driver in a rash and negligent manner, lost control over it and thereby dashed to the motor cycle on which the deceased was travelling. Due to the impact, the deceased sustained grievous injuries and died on the spot. It is further case of the claimants that prior to the date of accident, the deceased was working as a sales man at Zankeshwar Automobile and was getting salary of Rs. 20,000/- per month. Therefore, sought for allowing the claim petition. 4. The first respondent was placed ex-parte. The second respondent insurance company filed written statement, denied the averments made in the claim petition and contended that the accident occurred due to the to rash and negligent riding of the motor cycle by the deceased without following the traffic rules and regulations and also contended that the second respondent is not liable to pay compensation unless and until it is proved that the RC, FC and permit of the vehicle and driving licence of the driver of the vehicle were valid and effective as on the date of the accident. Therefore, he sought for dismissal of the claim petition. 5. Based on the aforesaid rival pleadings, the Tribunal framed the following issues: (i) Whether the petitioners prove that due to rash and negligent driving of the truck bearing No. KA-01/AA-5768, resulted in an accident and caused the death of Panaurang, S/o Subedar Mundaphani? Therefore, he sought for dismissal of the claim petition. 5. Based on the aforesaid rival pleadings, the Tribunal framed the following issues: (i) Whether the petitioners prove that due to rash and negligent driving of the truck bearing No. KA-01/AA-5768, resulted in an accident and caused the death of Panaurang, S/o Subedar Mundaphani? (ii) Whether the petitioners are entitled for compensation? If so, how much and from whom? (iii) What order or award? 6. In order to establish the claim, the claimant No.3 was examined as PW-1 and eye witness was examined as PW-2 and got marked the documents as Exs.P. 1 to P.8. The respondent/insurance company has not adduced evidence, but got marked copy of the insurance policy as per Ex.R. 1, with consent. 7. The Tribunal, considering the entire material on record, has come to a definite conclusion that the deceased died due to the alleged accident occurred on 04.08.2014 due to rash and negligent driving of the truck bearing registration No. KA-01/AA-5768 by its driver and the claimants are entitled to compensation. Accordingly, the Tribunal, by the impugned judgment and award, awarded compensation of Rs.7,42,000/- with interest at. 6% per annum from the date of petition till realization. Hence the present appeal is filed by the claimants for further enhancement of compensation. 8. The second respondent/insurance company has not filed any appeal or cross objection challenging the impugned judgment and award. 9. We have heard the learned counsel for the parties to the lis. 10. Sri Koujalagi Chandrakant, learned counsel for the appellants/claimants contended that the impugned award passed by the Tribunal taking the income of the deceased at Rs.5,000/- per month is erroneous and contrary to the material on record. The deceased was earning Rs.20,000/- per month. The compensation awarded under conventional heads is very much on lower side. Therefore, he sought for modification of the impugned judgment and award passed by the Tribunal by allowing the appeal as prayed for. 11. Per contra, Sri A.S. Aspalli, learned counsel for the respondent No.2/insurance company sought to justify the impugned judgment and award passed by the Tribunal and contended that in the absence of any material documents produced by the claimants to show that the deceased was earning Rs. 20,000/- per month, the Tribunal was justified in taking the income of the deceased at Rs.5,000/- per month. 20,000/- per month, the Tribunal was justified in taking the income of the deceased at Rs.5,000/- per month. No other materials have been produced by the claimants to prove the income of the deceased and therefore, sought to dismiss the appeal. 12. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that arise for our consideration are: (i) Whether the Tribunal is justified in awarding compensation of Rs. 7,42,000/-, with interest at 6% per annum from the date of petition till deposit? (ii) Whether the claimants have made out a case for further enhancement of compensation, in the facts and circumstances of the present case? 13. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, carefully. 14. It is an undisputed fact that the deceased Pandurang died in a road traffic accident occurred on 04.08.2014 due to rash and negligent driving of the driver of the truck bearing registration No. KA-01/AA- 5768 and the jurisdictional police have registered against the driver of the truck for the offences punishable under Sections 279, 304-A of IPC and Sections 184, 134, 174 of the IMV Act. P.W.l and 2 have stated that the deceased died due to rash and negligent driving of the truck by its driver. The said evidence has not been controverted by the respondent by adducing contrary evidence. 15. In the absence of any material documents produced by the claimants to show the exact income of the deceased, taking into consideration the date of accident 04.08.2014 and the age of the deceased 45 years and taking into consideration the increase in labour wages and in view of the dictum of the Hon’bie Supreme Court in the case of Sanobanu Nazirbhai Mirza and others v. Ahmedabad Municipal Transport Service reported in 2013 ACJ 2733 we are of the considered opinion that taking monthly income of the deceased at Rs. 7,500/- as he was working as a sales man in Zankeshwar Automobiles would be just and proper and the appropriate multiplier applicable would be 14, in view of the dictum of the Hon’ble Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009)6 SCC 121 . 16. 7,500/- as he was working as a sales man in Zankeshwar Automobiles would be just and proper and the appropriate multiplier applicable would be 14, in view of the dictum of the Hon’ble Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009)6 SCC 121 . 16. There are four members in the family of the deceased out of which the father of the deceased is not dependent on the deceased. Therefore, 1/3rd has to be deducted towards personal expenses of the deceased. Thus taking monthly income of the deceased at Rs. 7,500/-, deducting 1/3rd towards personal expenses and applying the multiplier 14, the loss of dependency would be Rs. 8,40,000/-. (Rs. 5,000/- x 12 x 14). 17. The Tribunal, while awarding compensation under conventional heads has proceeded to award Rs. 5,000/- towards transportation of dead body, Rs. 15,000/- towards loss of consortium, Rs. 15,000/- towards loss of love and affection and Rs. 10,000/- towards loss to estate which is lower side and contrary to the dictum of the Hon’ble Supreme Court in the case of Vimal Kanwar and others vs. Kishore Dan and others reported in (2013)7 SCC 476 which reads thus: 32. Admittedly, the date of birth of deceased Safari 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 1/2 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. 9000x2= Rs. 18,000 per month. 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. 9000x2= Rs. 18,000 per month. From this his personal living expenses, which should be 1/3rd, 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 1/2 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. 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. 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. 18. In view of the dictum laid down by the Hon’ble Supreme Court, stated supra the claimants are entitled to enhancement of compensation under conventional heads. 19. For the reasons stated above, the first point raised for consideration is answered in the negative and second point is answered in the affirmative holding that the claimants are entitled for enhancement of compensation. 20. After reassessing the entire material on record, the claimants are entitled to compensation as under: (i) Loss of dependency Rs. 8,40,000/- (ii) Towards transportation of dead body Rs. 15,000/- (iii) Towards loss of love and affection Rs. 50,000/- (iv) Towards loss of consortium Rs. 1,00,000/- (v) Towards loss to estate Rs. 15,000/- (vi) Towards funeral and other expenses Rs. 25,000/- Total Rs. 10,45,000/- 21. Thus the claimant is entitled to total compensation of Rs. 10,45,000/- as against Rs. 7,42,000/- awarded by the Tribunal. 22. For the reasons stated above, the appeal is allowed in part. The impugned judgment and award dated 25.04.2016 made in MVC No. 1373/2014 on the file of the Member, MACT- VII, Vijayapura, is modified holding that the claimant is entitled to total compensation of Rs. 10,45,000/- as against Rs. 7,42,000/- awarded by the Tribunal and therefore, he enhanced compensation would be Rs. 3,03,000/- with interest at 6% per annum from the date of petition till realization.