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2019 DIGILAW 1581 (KAR)

Annegowda v. Shek Anwar

2019-07-04

K.SOMASHEKAR

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JUDGMENT : K. Somashekar, J. Though this appeal is listed for admission, with the consent of the learned counsel for the appellants and the learned counsel for the respondent, the matter is taken up for final disposal. 2. This appeal is preferred by the appellants/ claimants seeking enhancement of compensation awarded by the MACT, Arkalgud in MVC No.468/2008 (Old No.516/2008) dated 02.08.2012 whereby the Tribunal has awarded compensation of Rs.3,97,000/- with interest @ 6% p.a. from the date of filing of the petition. The liability has been saddled on the respondent No.1, owner of the offending vehicle. 3. Factual matrix of the appeal are as under: It is stated in the claim petition that on 23.11.2007 deceased Dinesh had been to Puradamma Temple and in the evening at about 6.30 p.m. while he was returning towards his village on motor bike bearing Reg.No.KA-01/S-4069, on Hassan-Nittur Road, Dypalapura Village, the driver of 407 Mini Goods Lorry bearing Reg.No.KA-19/2403 drove the same in a rash and negligent manner and dashed against the motor bike which was driven by Dinesh. As a result, Dinesh fell down and sustained fatal injuries on his head and right leg and he died on the spot. Deceased was the only earning member of claimant's family and he was maintaining the claimants. He was aged 24 years at the time of the accident and was a 3rd year LL.B. student. Deceased Dinesh is the son of claimant Nos.1 and 2 and brother of claimant Nos.3 and 4. They are the legal representatives of the deceased. Hence the claimants have filed the claim petition seeking compensation of Rs.30,00,000/-. Notice was ordered on the respondents in the claim petition and respondents have filed their written statements. On evaluating the entire oral and documentary evidence placed on record, the Tribunal has awarded compensation in a sum of Rs.3,97,000/- with interest at 6% per annum from the date of petition till the date of deposit. Being not satisfied with the compensation awarded by the Tribunal, the appellants/claimants have preferred this appeal seeking enhancement of compensation by urging various grounds. 4. Learned counsel for appellants has taken me through the impugned judgment and also the material available on record, such as evidence of PW-1 and the documents marked on behalf of the claimants at Ex.P1 to P13. 4. Learned counsel for appellants has taken me through the impugned judgment and also the material available on record, such as evidence of PW-1 and the documents marked on behalf of the claimants at Ex.P1 to P13. Learned counsel for appellant contends that the Tribunal has erred in not assessing the income of the deceased properly. He has further contended that the accident occurred on 23.11.2007 and deceased Dinesh said to be a 3rd year LL.B. student aged 24 years, was the only source to his family. But the untimely death of Dinesh has caused great hardship and mental agony to the family. Learned counsel further contends that the Tribunal has held the income of the deceased in a sum of Rs.3,500/- p.m. which is on the lower side and the same is required to be enhanced in this appeal keeping in mind the fact that the deceased was aged 24 years and studying in 3rd Year LL.B. at Krishna Law College at Hassan. On all these grounds, learned counsel for appellants prays for allowing the appeal. 5. Counter to the arguments advanced by the learned counsel for appellants, learned counsel for respondent Insurance Company contends that the Tribunal, on appreciation of the oral and documentary evidence available on record, has rightly assessed the income of the deceased and awarded just and fair compensation and the same does not call for interference of this Court. He further contends that there is no specific oral or documentary evidence given in support of the claimant's contention to enhance the income of the deceased. Accordingly he prays for dismissal of the appeal. 6. In the backdrop of the contentions taken by learned counsel for appellants and also learned counsel for respondent No.2, it is relevant to state that there is no dispute about the accident that occurred on 23.11.2007 and that due to the said accident, Dinesh died on the spot. It is also not in dispute that deceased Dinesh was studying 3rd year LL.B. in Krishna Law College, Hassan. The Tribunal has assessed Rs.3,500/- p.m. as the income of the deceased, and the same is found to be inadequate. The father of the deceased is an agriculturist and he has lost his son aged 24 years who was also assisting him in his agricultural activities. The deceased has lost his bright future. The Tribunal has assessed Rs.3,500/- p.m. as the income of the deceased, and the same is found to be inadequate. The father of the deceased is an agriculturist and he has lost his son aged 24 years who was also assisting him in his agricultural activities. The deceased has lost his bright future. Keeping all these in mind, it is just and necessary to enhance the monthly income of the deceased to Rs.4,500/- from Rs.3,500/- p.m., as assessed by the Tribunal. 7. The future prospects is required to be calculated keeping in view the ratio of reliance in NATIONAL INSURANCE CO. LTD. VS. PRANAY SETHI & ORS, (2017) AIR SC 5157. The deceased aged 24 years and below 40 years, an addition of 40% has to be calculated and accordingly the income of the deceased is taken as Rs.6,300/- p.m. and 50% of the same is deducted towards his personal expenses and accordingly the income of the deceased shall be taken as Rs.3,150/- p.m. Keeping in view the age of the deceased, the multiplier is required to be applied as per SARLA VARMA & ORS. VS. DELHI TRANSPORT CORPORATION & ANR, (2009) ACJ 1298 and it shall be 18' instead of 17' held by the Tribunal. Accordingly, loss of dependency is calculated as Rs.3,150/- x 12 x 18 = Rs.6,80,400/- as against Rs.3,57,000/-. 8. Insofar as the judgment of the Hon'ble Supreme Court in the case of PRANAY SETHI (SUPRA) is concerned, under the conventional heads, Rs.30,000/- is to be awarded for an unmarried person. But the Tribunal has awarded Rs.10,000/- towards loss of estate and Rs.10,000/- towards transportation of dead body, in all Rs.20,000/-. Hence the same is enhanced to Rs.30,000/- under the conventional heads. 9. Insofar as parental consortium is concerned, it is the right of the parents who have lost their son due to the accident. Greatest agony to the parents is the loss of their children during their lifetime. The children are valued for their love, affection and companionship and their role in the family. But claimants 1 and 2 being the parents of deceased Dinesh have lost their son aged 24 years. But the Tribunal has awarded a meager compensation of Rs.20,000/- towards love and affection. Placing reliance on MAGMA GENERAL INSURANCE CO. LTD. VS. The children are valued for their love, affection and companionship and their role in the family. But claimants 1 and 2 being the parents of deceased Dinesh have lost their son aged 24 years. But the Tribunal has awarded a meager compensation of Rs.20,000/- towards love and affection. Placing reliance on MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM,2018 SCCONLINE(SC) 1546, it is just and proper to award Rs.40,000/- in respect of claimant No.1 being the father of the deceased towards parental consortium as against Rs.20,000/- awarded by the Tribunal. 10. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under: PARTICULARS COMPENSATION AWARDED BY MACT COMPENSATION AWARDED BY THIS COURT Loss of dependency 3,57,000 6,80,400 Loss of love and affection 20,000 40,000 (Parental Consortium) Loss of estate Transportation of dead body 10,000 30,000 (Conventional heads) Total 3,97,000 7,50,400 11. The Tribunal has saddled the liability on respondent No.1 said to be the owner of the offending vehicle. But keeping in view of the judgment rendered by the Hon'ble Supreme Court in MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO. LTD., (2017) 14 SCC 663 , liability is fixed on the respondent No.2, Insurance Company to pay the entire compensation amount to the claimants/appellants. 12. Accordingly I proceed to pass the following: ORDER (i) The appeal is hereby allowed in-part. (ii) Consequently the claimants are entitled for compensation in a sum of Rs.7,50,400/- with interest @ 6% p.a. as against Rs.3,97,000/- as awarded by the learned Tribunal. (iii) Respondent No.2 / Insurance Company is directed to deposit the entire award amount including interest, before the concerned MACT within a period of six weeks from the date of receipt of certified copy of this order. (iv) The compensation amount with accrued interest shall be apportioned in terms of the judgment rendered by the Tribunal and released forthwith, on proper identification. Office is directed to draw the decree accordingly.