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2019 DIGILAW 1843 (KAR)

Kavita v. Surekha P. Kammar

2019-08-14

P.G.M.PATIL, S.N.SATYANARAYANA

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JUDGMENT : 1. The claimants being aggrieved by the judgment and award dated 05.02.2016 passed in MVC No.882/2014 on the file of the V Additional District and Sessions Judge and MACT-VI, Belagavi (for short 'the Tribunal') have filed this appeal seeking enhancement of compensation. 2. It is the case of the claimants before the Tribunal that, petitioner No.1 is the wife, petitioner No.2 and 3 are the minor children and petitioner Nos.4 and 5 are the parents of the deceased Nagendra @ Nagesh. On 16.12.2013 at about 18.10 hours, the deceased was proceeding from Belagavi to Satnali village in a motorcycle bearing No.KA-31/R-7426 in a normal speed. When he reached near Ramapur village on Bidi-Alananavar road, a motorcycle bearing No.KA-22/TRE-2248 riding by its rider was coming from opposite direction in a rash and negligent manner and while overtaking the truck, dashed against the motorcycle of the deceased. Due to the said impact, the deceased sustained grievous injuries to the vital parts of the body and died on the spot. The deceased was hale and healthy and he was aged about 30 years. He was expert and experienced in business of purchasing and selling of vegetables on wholesale basis and earning Rs.20,000/- to Rs.25,000/- p.m. and out of the said income, the deceased used to maintain himself and his family members. Due to the sudden death, the petitioners have lost their dependency. The minors and parents have lost love and affection. The accident in question occurred due to rash and negligent riding of the offending motorcycle bearing No.KA-22/TRE-2248, respondent No. l being the owner and respondent No.2 being the insurer of the offending vehicle are jointly and severally liable to pay the compensation of Rs.50,00,000/-. 3. In response to the notice, respondent Nos.1 and 2 appeared before the Tribunal. Respondent No.2 filed written statement denying the entire case of the petitioners and further contended that the petitioners have created false story in order to get compensation. He further contended that the accident in question occurred solely due to rash and negligent riding of the motorcycle bearing No.KA-22/TRE-2248 by the deceased himself and therefore, the petitioners are not entitled for any compensation against him. In the alleged accident, two vehicles are involved and owners and insurers of both the vehicles are necessary parties and hence, the petition is not maintainable. Therefore, sought for dismissal of the claim petition. In the alleged accident, two vehicles are involved and owners and insurers of both the vehicles are necessary parties and hence, the petition is not maintainable. Therefore, sought for dismissal of the claim petition. Respondent No.1 has not filed any written statement. 4. On the basis of the pleadings of the parties, the Tribunal framed issues. 5. In support of their claim petition, claimant No.1 was examined as P.W.1 and examined one witness and got marked 13 documents as Exs.P1 to P13. Respondent No.2 got examined his official witness as R.W.1 and got marked two documents as Exs.R1 and R2. 6. The Tribunal after hearing both the parties passed impugned judgment awarding compensation of Rs. 13,89,000/- with interest at 9% p.a. from the date of petition till the date of realization. Respondent Nos. l and 2 are jointly and severally liable to pay 50% of the compensation awarded in the case and remaining 50% being held against the deceased. 7. The claimants being dissatisfied with the impugned judgment and award have filed this appeal on the ground that the Tribunal has considered income of the deceased at Rs.6,000/- p.m. instead of Rs.20,000/- to Rs.25,000/-p.m. without considering oral and documentary evidence on record. The Tribunal has not considered future prospects and that the Tribunal erred in holding 50% of the negligence against the deceased. 8. Heard the learned counsel appearing for the parties. 9. The short question that arises for our consideration in this appeal is, whether the claimants have made out a ground to set aside 50% of the negligence held against the deceased and for enhancement of compensation? 10. The learned counsel for the claimants submitted that, as per Ex.P3-sketch, the accident in question occurred on the left side of the road on which the deceased was riding the motorcycle and therefore, the entire negligence is on the part of the motorcycle belonging to respondent No.1. The learned counsel further submitted that the Tribunal has not considered future prospects for which the claimants are entitled to and that the income of the deceased is considered only at Rs.6,000/- p.m. which is on the lower side. 11. The learned counsel further submitted that the Tribunal has not considered future prospects for which the claimants are entitled to and that the income of the deceased is considered only at Rs.6,000/- p.m. which is on the lower side. 11. Per contra, the learned counsel for the insurer supports the impugned judgment and submitted that the Tribunal has properly held that there is negligence on the part of both the riders of the motorcycle in the ratio of 50:50 and that the Tribunal has awarded excessive compensation towards loss of estate and other heads. 12. The sketch drawn by the police during the course of the investigation which is part of Ex.P3 go to show that the accident in question occurred exactly on the middle of the road and therefore, the finding recorded by the Tribunal that there is negligence on the part of riders of both the motorcycle in the ratio of 50:50 is proper and the same cannot be interfered with by this Court. 13. The claimants contended before the Tribunal that the deceased was doing vegetable vending business and was earning Rs.20,000/- to Rs.25,000/- p.m. In support of their contention, they have produced Ex.P8, a certificate issued by the supplier of the vegetables, which was not proved before the Tribunal by examining the author of the said document. In the absence of positive evidence to prove the income of the deceased, we feel, it is just and proper to consider the income of the deceased on the basis of the chart provided for settlement of cases before the Lok Adalath for the year 2013. Accordingly, it is just and necessary to consider the income of the deceased at Rs.7,000/- p.m. for the purpose of awarding compensation. 14. Further, the Tribunal has not awarded any compensation towards loss of future prospects, for which the claimants are entitled to, in view of the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others, AIR 2017 SC 5157 . Therefore, the compensation awarded by the Tribunal has to be reassessed and on such reassessment, the following just compensation is awarded. The income of the deceased is considered at Rs.7,000/- p.m. and accordingly, he was getting annual income of Rs.84,000/- and to the said income, 40% has to be added towards future prospects. Therefore, the compensation awarded by the Tribunal has to be reassessed and on such reassessment, the following just compensation is awarded. The income of the deceased is considered at Rs.7,000/- p.m. and accordingly, he was getting annual income of Rs.84,000/- and to the said income, 40% has to be added towards future prospects. Thus, the total income of the deceased comes to Rs. 1,17,600/-. Out of this, l/4th has to be deducted towards personal and living expenses of the deceased, which comes to Rs.29,400/-, thereby Rs.88,200/- is the remaining income of the deceased which has to be multiplied by 16', the proper multiplier considering the age of the deceased. 15. Thus, the claimants are entitled for a sum of Rs. 14,11,200/- towards loss of dependency. The claimants are entitled for compensation in a sum of Rs.70,000/-under conventional heads, in view of the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra). Further, the claimant Nos.2 and 3 are minor children of the deceased who are entitled for compensation of Rs.50,000/- each towards loss of love and affection, in view of the judgment of the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram and Others, 2018 ACJ 2782 . Thus, Rs. 1,00,000/- is awarded under this head. Appellant Nos. 4 and 5 being the parents of the deceased, they are entitled for compensation of Rs.40,000/- each towards parental consortium. Thus, Rs.80,000/- is awarded under this head. Accordingly, the claimants are entitled for a total compensation of Rs. 16,61,200/- as against Rs. 13,89,000/- awarded by the Tribunal. Out of this compensation, the claimants are entitled for 50% of the compensation, i.e., Rs.8,30,600/- with interest at the rate of 8% p.a. from the date of petition till its realization, in view of the finding that 50% negligence is held against the deceased. The point for consideration is answered accordingly. In the result, we proceed to pass the following: ORDER: The appeal is allowed in part. The claimants are entitled for a total compensation of Rs. 16,61,200/- as against Rs. 13,89,000/- awarded by the Tribunal. Out of this compensation, the claimants are entitled for 50% of the compensation, i.e., Rs.8,30,600/- with interest at 8% p.a. from the date of petition till realization, in view of the finding that 50% negligence is held against the deceased. 16. The claimants are entitled for a total compensation of Rs. 16,61,200/- as against Rs. 13,89,000/- awarded by the Tribunal. Out of this compensation, the claimants are entitled for 50% of the compensation, i.e., Rs.8,30,600/- with interest at 8% p.a. from the date of petition till realization, in view of the finding that 50% negligence is held against the deceased. 16. Apportionment, deposit and disbursement of compensation shall be in terms of order of the Tribunal.