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2018 DIGILAW 711 (KAR)

Edward D'souza v. United India Insurance Co. Ltd.

2018-06-18

H.T.NARENDRA PRASAD, R.S.CHAUHAN

body2018
JUDGMENT : R.S. CHAUHAN, J. 1. The appellants have challenged the legality of the award, dated 01.09.2014, passed by the Motor Accidents Claims Tribunal, D. K., Mangalore, whereby for the death of Mr. Roydon D'Souza, the appellants have been granted a compensation of Rs. 4,25,000/-, along with an interest @ 6% per annum, from the date of filing of the petition till the date of realization. 2. Shortly put, the facts of the case are that on 26.05.2011, Mr. Roydon D'Souza was riding a motorcycle as a pillion rider, while Mr. Naveen D'Souza was driving the motorcycle. According to the appellants, Mr. Naveen D'Souza drove the motorcycle in such a rash and negligent manner that when it reached a sharp turn, near Marigudi on National Highway-17, the deceased was thrown off from the vehicle. Consequently, he sustained multiple injuries. Initially he was rushed to Padmavathi Hospital. Subsequently, he was shifted to A.J. Hospital, where he was declared as dead. Having lost their son, the appellants filed a claim petition before the learned Tribunal. In order to substantiate their case, the claimants had examined five witnesses, and submitted thirty-one documents. On the other hand, although the Insurance Company did not examine any witness, it did submit a single document, namely the insurance policy. After appreciating the evidence, the learned Tribunal granted the compensation as aforementioned. Hence, this appeal for enhancement. 3. Mr. Guruprasad B. R., the learned counsel for the appellants, has raised the following contentions before this Court: firstly, the learned Tribunal has failed to assess the evidence in proper perspective. Despite the fact that Mr. Royson D'Souza (P.W.1) and Mr. Laxman Naik (P.W.5) had clearly established that the deceased was earning an income of Rs. 16,000/- per month, while he was working as a General Fitter in Joannon and Paraskevaides (Overseas) Ltd., Tripoli, Libiya, the learned Tribunal has taken his income notionally as Rs. 5,000/- per month. Secondly, despite the fact that he was working on a fixed income, the appellants have not been granted the benefit of "loss of future prospects". Relying on the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI & ORS. ( AIR 2017 SC 5157 ), the learned counsel has pleaded that 40% of the income earned by the deceased should have been taken in order to calculate "the loss of future prospects". Relying on the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI & ORS. ( AIR 2017 SC 5157 ), the learned counsel has pleaded that 40% of the income earned by the deceased should have been taken in order to calculate "the loss of future prospects". But the same has not been done by the learned Tribunal. Thirdly, since the deceased was a bachelor, the learned Tribunal has taken the age of the mother in order to select the multiplier. However, in the case of PRANAY SETHI (supra), the Hon'ble Supreme Court has clearly opined that in case of death of a bachelor, it is the age of the bachelor, the deceased, which needs to be taken for selecting the proper multiplier. Since at the time of his death the age of the deceased was 24 years, the multiplier of 18' should have been applied by the learned Tribunal. Therefore the loss of dependency needs to be re-calculated by this Court. Lastly, despite the fact that the parents have lost their son, a meager amount of Rs. 15,000/- has been granted to them in the category of "loss of love and affection." Therefore, the compensation in the said category should also be enhanced. 4. On the other hand, Mr. B.C. Seetharama Rao, the learned counsel for the respondent - Insurance Company, has pleaded that the appellants did not step into the witness box in order to establish the nature of the employment, and the income received by the deceased. Therefore, the learned Tribunal was certainly justified in concluding that "considering the oral testimony of P.W.1 to P.W.5, and considering the documents submitted by the appellants, the income of the deceased has not been established." Hence the learned Tribunal was justified in taking the notional income of the deceased. Secondly, since the deceased was working in a foreign country, there is no security of job. Hence the question of granting "loss of future prospects" will not even arise in the present case. Lastly, a compensation is not meant to be bonanza. Therefore, the grant of compensation of Rs. 15,000/- for "loss of love and affection" suffered by the appellants is a reasonable amount. Thus the learned counsel has supported the impugned award. 5. Heard the learned counsel for the parties, and perused the impugned award. 6. Lastly, a compensation is not meant to be bonanza. Therefore, the grant of compensation of Rs. 15,000/- for "loss of love and affection" suffered by the appellants is a reasonable amount. Thus the learned counsel has supported the impugned award. 5. Heard the learned counsel for the parties, and perused the impugned award. 6. There is no requirement that the appellants themselves should have stepped into the witness box. It is sufficient if they had examined witnesses who would have established the employment and the income of the deceased. In the present case, the appellants have examined Mr. Royson D'Souza (P.W.1), the elder brother of the deceased. In his testimony he has clearly revealed that the deceased was working as a General Fitter in Joannon and Paraskevaides (Overseas) Ltd., Tripoli, Libiya. He had got employment through Continental Contractors, Mumbai, and the deceased was earning 415 Libyan Dinar, which is equivalent to Rs. 16,000/- in Indian currency. His testimony was further corroborated by Mr. P. Lakshman Naik (P.W.5), the Senior Manager, Canara Bank, Mangalore Branch, wherein he has clearly stated that the deceased had an account in their bank. He has also produced the account extract as Ex. P-31. A bare perusal of Ex. P-31 clearly reveals that the deceased was depositing anywhere from Rs. 12,000/- to Rs. 17,000/-, over a period of time, in the said account. Thus the testimony of P.W.1 and P.W.5 read with Ex. P-31 clearly establishes the fact that the deceased was employed in Libiya, as a General Fitter, and that he was earning Rs. 16,000/- per month. Merely because P.W.5 has admitted that "he cannot give the conversion price of one Dinar to Indian currency," would not dilute the testimony of P.W.1 and P.W.5 with regard to the income earned by the deceased. Therefore, the learned Tribunal is unjustified in concluding that the appellants have failed to establish the income received by the deceased. Therefore, the learned Tribunal has erred in taking the notional income of the deceased as merely Rs. 5,000/-. Since sufficient cogent evidence does exist to clearly prove that the deceased was earning Rs. 16,000/- per month, the same should be taken as the income of the deceased. 7. Therefore, the learned Tribunal has erred in taking the notional income of the deceased as merely Rs. 5,000/-. Since sufficient cogent evidence does exist to clearly prove that the deceased was earning Rs. 16,000/- per month, the same should be taken as the income of the deceased. 7. In the case of PRANAY SETHI (supra), the Hon'ble Supreme Court has clearly opined that in case a person is receiving a fixed salary, even if he is not a permanent employee, even then, the claimants would be entitled to receive compensation for "the loss of future prospects". The Hon'ble Supreme Court does not indicate that the future possibility of loss of a job needs to be considered while granting the compensation for loss of future prospects. In fact, the learned Tribunal is required to look into the nature of the job done by the deceased, and whether he is self-employed, or on a fixed salary at the time of his/her death. Therefore, the contention raised by the learned counsel for the Insurance Company that there is a distinct possibility that the deceased may have been sent home, and hence the grant of compensation for the category of loss of future prospects, cannot be considered by this Court, the said argument is clearly unacceptable. Since the deceased was twenty-four years old, at the time of his death, 40% of his income has to be taken as "the loss of future prospects" suffered by the appellants. Hence the appellants are entitled to 40% of the income of the deceased, towards "the loss of future prospects". 8. Since the deceased was a bachelor, since according to the principle established by the Apex Court in the case of PRANAY SETHI (supra) that the age of the deceased bachelor has to be taken in order to select the multiplier, the learned Tribunal was unjustified in taking the age of the mother in order to select the proper multiplier. Therefore, the multiplier of 18' needs to be applied in the present case. Hence loss of dependency needs to be re-calculated as under: Monthly income 16,000/- Add; 40% towards future prospects 6,400/- Total 22,400/- Less: 1/2 towards personal expenses 11,200/- Actual monthly income 11,200/- Multiplier 18 Loss of dependency 11, 200 x 12 x 18 Rs. 24,19,200/- 9. Admittedly the parents have lost a young son in the middle of their lives. Hence loss of dependency needs to be re-calculated as under: Monthly income 16,000/- Add; 40% towards future prospects 6,400/- Total 22,400/- Less: 1/2 towards personal expenses 11,200/- Actual monthly income 11,200/- Multiplier 18 Loss of dependency 11, 200 x 12 x 18 Rs. 24,19,200/- 9. Admittedly the parents have lost a young son in the middle of their lives. Obviously, the vacuum left by the death of a young son cannot be filled. However, the grant of 15,000/- for "the loss of love and affection" is certainly miserly. Therefore, this Court enhances the compensation in the said category from Rs. 15,000/- to Rs. 30,000/-. 10. For the reasons stated above, this appeal is hereby allowed. The impugned award dated 01.09.2014, stands modified as under: Compensation under different Heads As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) Funeral Expenses 10,000/- 10,000/- Loss of dependency 3,90,000/- 24,19,200/- Loss of love and affection 15,000/- 30,000/- Loss of estate 10,000/- 10,000/- Total 4,25,000/- 24,69,200/- The Insurance Company is directed to deposit the entire compensation amount along with interest at 6% per annum, from the date of filing of the claim petition, till the date of realization, within a period of three weeks from the date of receipt of the certified copy of this judgment. The amount so deposited shall be released, forthwith, by the learned Tribunal to the appellants after verifying their identities.