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2019 DIGILAW 1097 (KAR)

Kamalawwa v. Ashok

2019-06-04

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The claimant being dissatisfied with the judgment and award dated 27/4/2015 passed in MVC No.91/2013 by the I Addl. District & Sessions Judge, Bagalkot sitting at Jamakhandi & MACT No.XI, Jamakhandi has filed this appeal. 2. It is the case of the claimant before the Tribunal that on 3.12.2012, the deceased Kalappa Ishwarappa Badiger was proceeding by walk towards Shivaji circle situated at Mudhol by the side of Mudhol Lokapur road, when he reached near the Reliance Petrol Pump at about 8.00pm, the driver of the Truck bearing Nos.KA- 28/A-9155 came from the Lokapur side in a rash and negligent manner and dashed to the deceased from backside causing accident, due to the said impact deceased sustained grievous injuries and died on the spot. 3. The deceased was hale and healthy prior to the accident and aged about 35 years and was doing mason work at Mudhol and thereby he was earning Rs.12,000/- p.m. and maintaining members of the family. The petitioner has lost her beloved son and dependency and therefore, put to mental agony and inconvenience. 4. It is also further stated that respondent No.3-wife of the deceased has left the matrimonial home and residing in her parental house along with her two children. Therefore, the claimant claimed the compensation of Rs.15,00,000/- against the owner and the insurer of the offending vehicle. 5. Despite service of notice, respondent No.1 remained absent and was placed exprte. Respondent Nos.3 to 5 appeared through their counsel and filed written statement and they also claimed the share in the compensation amount. Respondent No.2 appeared through his counsel and filed written statement. He denied the material averments in the claim petition. He has denied the place of accident, date and time and occupation, and income of the deceased. He further contend that his liability is subject to the terms and conditions of the policy and if the person driving the vehicle was not holding the valid driving licence, he is not liable to be pay the compensation. 6. Based on the pleadings of the parties, Tribunal framed the issues. The claimant-petitioner got examined herself as PW-1 and got marked 8documents as Exs.P1 to 8. Respondent No.2 produced the copy of insurance policy marked as Ex.R1. 7. 6. Based on the pleadings of the parties, Tribunal framed the issues. The claimant-petitioner got examined herself as PW-1 and got marked 8documents as Exs.P1 to 8. Respondent No.2 produced the copy of insurance policy marked as Ex.R1. 7. The learned member of the Tribunal after hearing both the parties passed the impugned judgment and award and awarded a compensation of Rs.6,78,000/- with interest at the rate of 6% p.a. from the date of petition till the date of payment. The compensation amount was apportioned at 20% to the petitioner mother and 50% in favour of the wife and 15% each in favour of the minor children. 8. The claimant being aggrieved by the judgment and award has filed this appeal, on the ground that the Tribunal has awarded a meger compensation and that the income of the deceased was considered at Rs.4,500/-pm. which is on lower side. The Tribunal has awarded only Rs.10,000/- towards loss of love and affection, Rs.20,000/- towards funeral expenses and transportation of dead body. The Tribunal has not awarded any compensation towards loss of estate and towards loss of consortium. 9. Heard the learned counsel for the appellant and respondent No.2. 10. In view of the submission of the learned counsel for the appellant and respondent No.2, the short question which arises for consideration before this Court is as to "whether the appellant has made out grounds for enhancement of compensation?." 11. The petitioner contended before the Tribunal that the deceased-her son was working as mason and earning Rs.12,000/-p.m. and aged about 35 years. Further, the claimant has not produced any positive evidence in order to prove the income of the deceased. Therefore, the Tribunal considered the income of the deceased at Rs.4,500/- on notional basis. The accident occurred on 3/12/2012. The deceased is stated to be a mason. Under these circumstances, considering the date of accident, the age of the deceased, avocation and also guidelines provided for settlement of the cases before the Lokadalt, it is just and necessary to consider the income of the deceased at Rs.6,500/-p.m. for the purpose of awarding compensation. The petitioner and other claimants are also entitled for addition of 40% of the income of the deceased towards future prospects in view of the judgment of the Hon'ble Supreme Court in the case of National Insurance Ltd. Vs. Pranay Sethi and Others and Hem Raj Vs. Oriental Insurance Co. The petitioner and other claimants are also entitled for addition of 40% of the income of the deceased towards future prospects in view of the judgment of the Hon'ble Supreme Court in the case of National Insurance Ltd. Vs. Pranay Sethi and Others and Hem Raj Vs. Oriental Insurance Co. Ltd. and others, (2018) ACJ 5. The claimant-mother is also entitled for compensation of Rs.50,000/- towards loss of love and affection in view of the judgment in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram and Others.. Similarly, two minor children are entitled for compensation towards loss of love and affection at Rs.50,000/- each. 12. Under these circumstances, after reassessment of the entire material on record and in view of the decisions referred above, just compensation is reassessed as follows:- Loss of dependency (6825 X 12 X 16) 13,10,400.00 Loss of love and affection to mother and minor children 1,50,000.00 Conventional head 70,000.00 Total 15,30,400.00 13. Therefore, the claimants are entitled for compensation of Rs.15,30,400/- as against the compensation awarded by the Tribunal at Rs.6,78,000/- Out of the compensation amount awarded, the mother of the deceased is entitled for 25% and wife and minor children are entitled for 25% each. 14. The point for consideration is answered accordingly. In the result, this Court proceed to pass the following:- ORDER Appeal is allowed in part. The claimants are awarded compensation of Rs.15,30,400/- with interest @6% p.a. from the date of petition till the date of realisation. Disbursement of the compensation shall be in the ratio of 25% each in favour of mother, wife and minor children. The order for depositing and disbursement as passed by the Tribunal holds good.