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2019 DIGILAW 1429 (KAR)

Tatyasaheb v. Ramesh Satyappa Ringane

2019-06-25

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The claimants being dissatisfied with the common Judgment dated 01.02.2011 passed in M.V.C.Nos.2731 and 2733 of 2009 by the Principal Senior Civil Judge and Additional M.A.C.T, Gokak (for short the 'Tribunal') have filed these appeals. 2. It is the case of the claimants before the Tribunal that on 11.05.2009 the petitioners and deceased Kashinath Ashok Madiwalar were proceeding on motorcycle bearing Registration No.KA-23/L-3323 on Hukkeri-Ghataprabha Road along with their minor son Bharatesh Arvind Khot, when they were proceeding near the land of Satagouda Nerli a Truck bearing Registration No.KA-22/A-5775 came from Hukkeri side in a rash and negligent manner and dashed to the motorcycle and caused accident, due to the accident Bharatesh, Arvind and Kashinath sustained fatal injuries and died on the spot. The claimants in M.V.C.Nos.2731 and 2733 of 2009 are father, mother and son of the deceased-Arvind and are grant parents and brother of the deceased- Bharatesh. The wife of deceased-Arvind and mother of deceased-Bharatesh, by name Roopali had died on 18.07.2005. The deceased-Bharatesh was aged about 9 years was a brilliant student in the school and used to participate in curriculum activities. The deceased- Arvind was aged about 40 years and was medical practitioner and was also managing agriculture land and earning Rs. 10,000/- p.m. Therefore, the claimants filed the claim petitions against the owner and insurer of the offending vehicle. The legal heirs of deceased- Kashinath also filed M.V.C.No.1261 of 2009. The Tribunal clubbed all the petitions and common evidence was recorded and disposed of by common Judgment. 3. In pursuance of the notice, respondent Nos.1 and 2 appeared before the Tribunal. Respondent No.1 has filed the objections denying the various averments made in the petitions and denied that there was rash and negligent driving on the part of the driver of the Truck and he has denied the age, occupation and income of the deceased and that the petitioners were depending on the income of the deceased. It is also contended that the deceased-rider of the motorcycle had driven the same in a rash and negligent manner and due to his mistake the said accident was occurred. The deceased was also not holding the licence to drive the motorcycle. In case of any award, it may be saddled against the 2nd respondent. It is also contended that the deceased-rider of the motorcycle had driven the same in a rash and negligent manner and due to his mistake the said accident was occurred. The deceased was also not holding the licence to drive the motorcycle. In case of any award, it may be saddled against the 2nd respondent. Respondent No.2-Insurer has filed the objections denying the averments made in the claim petitions and he has denied the age, income and occupation of the deceased. The accident occurred due to the rash and negligent driving of the motorcycle. Therefore, he is not liable to pay the compensation. It is also stated that the driver was not having driving license. Therefore, the claim petitions against him may be dismissed. 4. On the basis of the pleadings of the parties, the Tribunal framed issues in all the cases. The claimants got examined two witnesses and got marked 29 documents as Ex.P-1 to Ex.P-29. The respondent No.2 has not adduced any oral evidence and not produced any documentary evidence. The Tribunal after hearing both the parties, passed the impugned Judgment awarding compensation of RS. 1,55,000/- in M.V.C.No.2731 of 2009 and a compensation of Rs. 4,53,000/- in M.V.C.No.2733 of 2009 with interest at the rate of 6% from the date of petition till the realization. Respondent No.2-Insurer was directed to deposit the compensation amount. 5. Thus, the claimants in M.V.C.No.2731 of 2009 being dissatisfied with the Judgment and have filed M.F.A.No.102005 of 2014 and the claimants in M.V.C.No.2733 of 2009 have filed M.F.A.No.102004 of 2014 seeking enhancement in the compensation. They have contended that the Tribunal has erred in awarding compensation amount of Rs. 4,53,000/- and global compensation of Rs. 1,55,000/-. 6. Heard the learned counsel for the appellants and the respondents. 7. A short question which arises for consideration in these appeals is as to whether the claimants have made out grounds for enhancement of compensation. IN M.F.A.NO.102004 OF 2014 (MVC.No.2733 of 2009) 8. The claimants contended before the Tribunal is that the deceased-Arvind was a medical practitioner and also doing agriculture and thereby earning Rs. 10,000/- per month and claimants have produced record of rights standing in the name of deceased at Ex.P-8 to 17 and certificate issued by Ayurvedic and Unani Board at Ex.P-22. However, these claimants have not produced any sufficient documents to prove the actual income of the deceased. 10,000/- per month and claimants have produced record of rights standing in the name of deceased at Ex.P-8 to 17 and certificate issued by Ayurvedic and Unani Board at Ex.P-22. However, these claimants have not produced any sufficient documents to prove the actual income of the deceased. Therefore, the Tribunal has considered the notional income of the deceased at Rs. 4,000/- per month for awarding compensation. Considering the material on record and also guidelines provided for settlement of cases before the Lok-Adalath and year of accident, and it is just and necessary to consider the income of the deceased has at Rs. 5,000/- per month for awarding compensation. The claimants are also entitled for 25% of the income for future prospects, 1/3rd portion of the income of the deceased has to be deducted towards personal and living expenses. Therefore, on reassessment, the claimants are entitled for compensation amount of Rs. 7,00,056/- (Rs. 4,167/- X 12 X 14) towards loss of dependency. The claimant No.3 being minor son of the deceased is entitled for compensation towards the loss of love and affection at Rs. 50,000/- in view of the decision of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd., V. Nanu Ram and others, (2018) ACJ 2782 . The claimant No.2 being mother of the deceased is entitled for parental consortium amount of Rs. 40,000/-. Further the claimants are entitled for Rs. 30,000/- under the conventional heads. Therefore, the Claimants are entitled for total compensation amount of Rs. 8,20,056/- as against Rs. 4,53,000/- awarded by the Tribunal. IN M.F.A.NO.102005 OF 2014 (MVC.NO.2731/2009) 9. The claimants being grand parents of the deceased-Bharatesh claimed compensation, Bharatesh was aged 9 years, it is admitted that the father of deceased Bharatesh also succumbed to the injuries in the same accident and the mother had predeceased his father. Therefore the claimants herein being grandparents of deceased are entitled for a global compensation. The tribunal has accordingly awarded a global compensation of Rs. 1,55,000/-. The same does not call for interference by this Court. Therefore this appeal is liable to be dismissed. Hence, the point for consideration is answered accordingly. 10. In the result, this Court proceed to pass the following: ORDER The appeal in M.F.A.No.102005 of 2014 is dismissed. The appeal filed by the claimants in M.F.A. No. 102004 of 2014 is allowed in part. Therefore this appeal is liable to be dismissed. Hence, the point for consideration is answered accordingly. 10. In the result, this Court proceed to pass the following: ORDER The appeal in M.F.A.No.102005 of 2014 is dismissed. The appeal filed by the claimants in M.F.A. No. 102004 of 2014 is allowed in part. The claimants are awarded with a compensation of Rs. 8,20,056/- with interest at 6% p.a. from the date of petition till its realization, excluding the delay period of 1186 days caused in filing the appeal.