Divisional Manager, New India Assurance Co Ltd v. Banu
2019-07-08
P.G.M.PATIL
body2019
DigiLaw.ai
JUDGMENT : P.G.M. Patil, J. 1. The Insurer-The New India Assurance Company Limited being aggrieved by the Judgment and Award dated 28.01.2014 passed in M.V.C.No.1632 of 2012 by the 5th Additional District Court and 6th Additional M.A.C.T., Belagavi has filed this appeal. 2. It is the case of the claimants before the Tribunal that the claimants are the parents of the deceased-Ameersohel who died in the motor vehicle accident which occurred on 22.05.2012. The claimants have stated that on 22.05.2012 at about 10.30 a.m. the deceased was driving the goods auto rickshaw bearing No.KA-23/A-4231 on NH-4 when he was proceeding near Vantamuri gate at that time, the driver of Mahindra P-Van bearing No.MH-12/FD-8720 came from behind in a rash and negligent manner and dashed against the goods auto rickshaw and caused the accident, due to which, the deceased sustained fatal injuries and he succumbed to the injuries on the way to the District Hospital at Belagavi. The claimants have further stated that the deceased was aged 20 years and was doing the avocation of driving and earning Rs.8,000/- per month and managing the family. They have lost their dependency, love and affection and hence they filed claim petition claiming the compensation amount of Rs.12,00,000/- against the owner and insurer of the offending vehicle. 3. In response to the notice, respondent No.1 remained absent and respondent No.2-Insurer appeared before the Tribunal through his counsel and filed his objections to the claim petition denying the age and occupation of the deceased. It is further contended that the accident occurred due to rash and negligent driving of the vehicle by the deceased and that the driver of the pick up vehicle was not holding a valid driving license, therefore, he is not entitled for any compensation. 4. On the basis of the pleadings of the parties, the Tribunal framed issues. In support of their claim petition, claimant-petitioner No.1 was examined as PW- 1 and got marked nine documents as Ex.P.1 to Ex.P-9. On the other hand, the respondent No.2-Insurance Company produced the Insurance Policy copy at Ex.R-1. 5. The Tribunal after hearing both the parties, passed the impugned Judgment awarding compensation amount of Rs.10,48,000/- with interest at the rate of 8% per annum from the date of petition till the date of deposit. Respondent No.2-Insurer was directed to deposit the compensation amount. 6.
5. The Tribunal after hearing both the parties, passed the impugned Judgment awarding compensation amount of Rs.10,48,000/- with interest at the rate of 8% per annum from the date of petition till the date of deposit. Respondent No.2-Insurer was directed to deposit the compensation amount. 6. The appellant-Insurer being aggrieved by the Judgment and Award has filed this appeal on the grounds that the Tribunal committed a great error in considering the income of the deceased at Rs.6,000/- per month and adding 50% of the income towards future prospects. 7. Heard the learned counsel for the appellant- Insurer and respondents-claimants. 8. A short question which arises for consideration in this appeal is as to whether the appellant-Insurer has made out grounds for reducing the compensation amount awarded by the Tribunal? 9. The learned counsel for the appellant-Insurer submitted that the claimants are not entitled for addition of 50% of the income of the deceased towards future prospects and deduction of 50% towards the personal expenses of the deceased has to be made and further the Tribunal has erroneously awarded a sum of Rs.1,00,000/- towards love and affection. It is not proper that the Tribunal has awarded a sum of Rs.35,000/- towards conventional heads which needs to be reduced to Rs.30,000/-. 10. Per Contra, the learned counsel for the respondent-claimants submitted that the Tribunal has applied multiplier 17, and considering the age of the deceased as 20 years and multiplier 18 is applicable in the case. The learned counsel also submitted that the income of the deceased ought to have been considered at Rs.6,500/- per month. 11. The Tribunal has considered the income of the deceased as Rs.6,000/- per month in the absence of positive evidence to prove the income that the deceased was earning Rs.8,000/- per month by working as a driver. The Claimants have not filed any appeal seeking enhancement of the compensation therefore, considering the income of the deceased at Rs.6,500/- per month does not arise. Accordingly, income of the deceased considered by the Tribunal at Rs.6,000/- per month is taken for awarding compensation. Further, the Tribunal has awarded 50% of the income towards future prospects, amittedly, the deceased had no definite income as such claimants are entitled for 40% of the income towards future prospects instead of 50% of the income.
Accordingly, income of the deceased considered by the Tribunal at Rs.6,000/- per month is taken for awarding compensation. Further, the Tribunal has awarded 50% of the income towards future prospects, amittedly, the deceased had no definite income as such claimants are entitled for 40% of the income towards future prospects instead of 50% of the income. However, the Tribunal has applied multiplier 17 and it ought to be 18 considering the age of the deceased as 20 years. 12. Considering the material on record, the following just compensation is awarded. The income of deceased is Rs.6,000/- per month and 40% of the income added towards future prospects and 50% of the same is deducted towards personal and living expenses of the deceased. The remaining amount of income has to be multiplied by 12 and 18, thus, the claimants are entitled for compensation of Rs.9,07,200/- (Rs.6,000/- + (Rs.2,400/-i.e.40%)= Rs,8400/- - (Rs.4,200/- i.e. 50%) =Rs.4,200/- X 12 X 18) towards loss of dependency. The claimants are entitled for compensation amount of Rs.30,000/- under the conventional heads and the same is awarded. Further, the claimants being parents of the deceased are entitled for parental consortium of Rs.40,000/- each, in view of the Judgment in the case of MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM AND OTHERS, (2018) ACJ 2782, accordingly, Rs.80,000/- is awarded. Thus, the claimants are entitled for total compensation amount of Rs.10,17,200/- as against the compensation awarded by the Tribunal at Rs.10,48,000/- accordingly, the impugned Judgment and Award passed by the Tribunal is modified. The point of consideration in this appeal is answered accordingly. In the result, this Court proceed to pass the following : ORDER The appeal is allowed in part. The respondent-claimants are entitled for total compensation amount of Rs.10,17,200/- along with interest at the rate of 6% per annum from the date of petition till its realization. The amount in deposit shall be transmitted to the concerned Tribunal. Draw modified decree accordingly.