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2019 DIGILAW 1423 (KAR)

Shankaregowda v. P. Kaliyappa

2019-06-25

B.V.NAGARATHNA, K.NATARAJAN

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JUDGMENT : K. Natarajan, J. Though, this appeal is listed for orders, with the consent of learned counsel for both the sides, it is heard finally. 2. This appeal is filed by the legal representatives of Annaji @ Gunda assailing the judgment and award dated 30.01.2013 passed by the Senior Civil Judge and M.A.C.T., Holenarasipura (hereinafter referred to as 'the Tribunal', for the sake of convenience) in M.V.C.No.420/2012. 3. We have heard the arguments of learned counsel for the appellants as well as learned counsel for the respondents. 4. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal. 5. The appellants-claimants has filed the petition before the Tribunal under Section 166 of Motor Vehicles Act, 1988 (hereinafter referred to as, 'the Act', for the sake of brevity) claiming compensation of Rs.25,00,000/- for the death of their son Annaji @ Gunda, who died in the road traffic accident, inter-alia, contending that on 19.02.2012, the said Annaji @ Gunda, being the cleaner of a lorry bearing Registration No.KA-13/A-492, while proceeding from Hassan to Palya on National Highway-48, the driver of the tanker lorry bearing Registration No.KA-01/AE-8366 came from opposite direction in a rash and negligent manner with high speed and dashed to the lorry bearing Registration No. KA-13/A-492. Due to the collision of both vehicles, their son- Annaji @ Gunda died on the spot and due to the untimely death of their son, they lost their dependency. The deceased was an agriculturist and was working as a cleaner, earning Rs.25,000/- per month and was maintaining their family. The claimants are suffering from 'loss of love and affection', 'loss of estate', 'loss of dependency' and hence, they claimed compensation on various heads. 6. In pursuance to the notice, respondent No.1 has not appeared and contested the matter and remained exparte. The second respondent-insurer appeared before the Court through their advocate and filed statement of objections contending that the petition is not maintainable on the ground that the driver and owner of the lorry bearing Registration No.KA-13/A-492 are not made as parties but they are necessary parties. The petition is bad for non-joinder of necessary parties, the relationship between the deceased and the petitioner are not known to respondent No.2. Deceased was a bachelor, his age, occupation and the income are not within the knowledge of respondent No.2. The petition is bad for non-joinder of necessary parties, the relationship between the deceased and the petitioner are not known to respondent No.2. Deceased was a bachelor, his age, occupation and the income are not within the knowledge of respondent No.2. It is also contended that the claim of the petitioners (appellants herein) is excessive and exorbitant. The version of the accident is not admitted. The drivers of the both vehicles have no valid and effective driving license to drive their vehicles. However, it was not admitted that the deceased was traveling in the lorry as a cleaner and therefore, the liability is fixed on the respondents. The interest should be levied only 6% per annum and hence, prayed for dismissing the claim petition. 7. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration; i. Whether the petitioners prove that on 19.02.2012 about 4 p.m., near Saganihole Bridge, on NH-48, at Palya of Alur Taluk, the deceased Annaji son of petitioners was traveling in a Lorry bearing No.KA-13-A-492 as a cleaner, at that time the driver of Gas tanker Lorry bearing No.KA-01-AE-8366 came from Sakaleshapura side rashly and negligently with high speed and hit to deceased Lorry, due to which the deceased sustained blood stained injuries and died at the spot? ii. Whether the petitioners are entitled compensation as claimed in the petition? If not, at what amount and from whom? iii. What Order or Award? 8. To substantiate the claim, claimant No.1 examined himself as PW.1 and has got marked nine documents as per Exs.P1 to P9. Respondent No.2 neither let in any evidence nor marked any document. The Tribunal, after considering the evidence on record, answered issue No.1 in the affirmative, issue No.2 partly affirmative and awarded compensation of Rs.3,05,000/- with interest at the rate of 6% per annum on the following heads: Heads Compensation awarded by the Tribunal (in Rs.) Loss of dependency Loss of dependency 2,70,000.00 Funeral expenses 5,000.00 Love and Affection 15,000.00 Loss of estate 15,000.00 Total 3,05,000.00 9. Assailing the judgment and award passed by the Tribunal, the claimants preferred this appeal for enhancement of compensation. 10. Assailing the judgment and award passed by the Tribunal, the claimants preferred this appeal for enhancement of compensation. 10. Learned counsel for the appellants contended that deceased Annaji @ Gunda was an agriculturist and worked as a cleaner in a lorry bearing Registration No.KA-13/A-492 and he was earning Rs.25,000/- per month but there is no document to prove the income. However, deceased was also having driving license to drive the vehicle. Therefore, the Tribunal ought to have considered the income of the deceased at least Rs.10,000/- per month. But the Tribunal committed error in considering the income of the deceased as Rs.100/- per day, which is very meager. It is also contended that the Tribunal has not considered 40% of income towards 'future prospects' as per the dictum of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others, (2017) 16 SCC 680 . The awards on the 'conventional heads' namely, 'loss of consortium' was also not awarded, 'funeral expenses' Rs.15,000/- is required to be awarded but the same was not properly awarded by the Tribunal. Hence, prayed for enhancing the same. 11. Per contra, the learned counsel for the respondent-insurer has supported the judgment and award of the Tribunal and contended that without there being any proof of income, the question of considering the deceased as cleaner and income of Rs.10,000/- cannot be acceptable and therefore, the Tribunal has rightly considered the income of the deceased as Rs.100/- per day. However, learned counsel admitted that the claimants are entitled for 'future prospects' as per the principles of law laid down by the Hon'ble Apex Court in the case of Pranay Sethi (supra) Hence, prayed for dismissal of the appeal. 12. Upon hearing the arguments of learned counsel for both the parties., the points that arises for our consideration; i. Whether the Tribunal is not justified in passing the award of Rs.3,05,000/- in the petition? ii. Whether the claimants are entitled for enhancement of compensation? iii. What order? 13. 12. Upon hearing the arguments of learned counsel for both the parties., the points that arises for our consideration; i. Whether the Tribunal is not justified in passing the award of Rs.3,05,000/- in the petition? ii. Whether the claimants are entitled for enhancement of compensation? iii. What order? 13. It is established by the appellants-claimants that on 19.02.2012 at about 4 p.m., deceased- Annaji @ Gunda while travelling in a lorry bearing Registration No.KA-13/A-492 as cleaner, at that time, the tanker lorry bearing Registration No.KA-04/AE-8366 came from opposite direction in a rash and negligent manner with high speed and dashed to the lorry of the deceased, due to which, he has sustained injuries and died on spot. 14. The claimant examined himself as PW.1 and produced the documents especially Ex.P1 is FIR, Ex.P2 is the Chargesheet, Ex.P3 is the IMV report and Ex.P4 is inquest report, which clearly shows that this accident was occurred due to the rash and negligent driving of the driver of tanker lorry bearing registration No.KA-01/AE-8366. The said documents and the evidence of PW.1 was not seriously disputed by respondent No.2 and the finding of the Tribunal fastening the liability on the Insurer. was also not in dispute. Therefore, this Court is required to consider the quantum of compensation awarded by the Tribunal is sufficient or not as against the claim of the claimants. 15. The case of the claimants is that deceased Annaji @ Gunda was working as a cleaner and he was proceeding in the said lorry and on a fateful day of 19.02.2012, he met with an accident. Though the petitioners claim that the deceased was earning Rs.25,000/- per month, but they have not produced any document to prove the income of deceased. However, they have filed and marked Ex.P8, the driving license of deceased Annaji @ Gunda, which shows that though he was a cleaner as on the date, but he was also holding driving license to drive the vehicle. Such being the case, the Tribunal ought to have considered a reasonable amount as income of the deceased per month. Even, this Court has assessed Rs.7,000/- per month as the income for an unskilled labour during the year, 2012. Therefore, we consider Rs.7,000/- per month as income of the deceased. Such being the case, the Tribunal ought to have considered a reasonable amount as income of the deceased per month. Even, this Court has assessed Rs.7,000/- per month as the income for an unskilled labour during the year, 2012. Therefore, we consider Rs.7,000/- per month as income of the deceased. As per the dictum of the Hon'ble Apex Court in the case of Pranay Sethi (supra) for age group of below 40 years, 40% of the income should be considered towards 'future prospects'. If Rs.7,000/- is considered as monthly income, 40% would be Rs.2,800/- towards 'future prospects'. If Rs.2,800/- is added to the income, then it comes to Rs.9,800/-. The deceased being a bachelor, 50% of the income shall be deducted towards his 'personal expenses', which comes Rs.4,900/- per month. The same shall be multiplied X 12 X 18 (appropriate multiplier), which comes to Rs.10,58,400/-. So we propose to award Rs.10,58,400/- as against Rs.2,70,000/- awarded by the Tribunal towards 'loss of dependency' 16. As per the dictum of the Hon'ble Apex Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram Alias Chuhru Ram and Others, (2018) ACJ 2782 (SC), the claimants are entitled to Rs.30,000/- each towards the 'filial consortium' and Rs.15,000/- awarded towards 'loss of estate' by the Tribunal is just and proper and the same is retained. But an amount of Rs.15,000/- awarded by the Tribunal towards 'love and affection' is set aside. However, the Tribunal has awarded Rs.5,000/- toward 'funeral expenses', which is meager and hence, the same is enhanced to Rs.15,000/-. 17. In all, the claimants are entitled for the reassessed compensation as under: Heads Compensation awarded by this Court (in Rs.) Towards loss of dependency 10,58,400.00 Towards loss of love and Affection at the rate of Rs.30,000/- per claimant (Filial Consortium) 60,000.00 Towards loss of estate 15,000.00 Towards transpiration of the dead body and funeral expenses 15,000.00 Total 11,48,400.00 The re-assessed compensation of Rs.11,48,400/- shall carry interest at the rate of 6% p.a. 18. The compensation shall be apportioned between the claimants in the ratio of 25:75. The compensation awarded to the first appellant-claimant shall be released to him after due identification. 75% of the compensation awarded to the second appellant-claimant, mother of the deceased shall be deposited in any Post Office or Nationalised Bank deposit for an initial period of ten years. The compensation shall be apportioned between the claimants in the ratio of 25:75. The compensation awarded to the first appellant-claimant shall be released to him after due identification. 75% of the compensation awarded to the second appellant-claimant, mother of the deceased shall be deposited in any Post Office or Nationalised Bank deposit for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to her. 19. The insurance company shall deposit the compensation now awarded before the Tribunal within a period of four weeks from the date of receipt of the certified copy this judgment. In the result, the appeal is allowed in part. Parties to bear their respective costs.