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2019 DIGILAW 1889 (KAR)

Sarika v. Yunus

2019-08-28

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

body2019
JUDGMENT : P.G.M. Patil, J. The claimants being dissatisfied with the judgment and award dated 22.08.2016 passed in MVC No.1418/2014 by the VIII Additional District and Sessions Judge, Belagavi have filed this appeal. 2. It is the case of the claimants before the Tribunal that on 24.06.2014 at about 8.30 p.m., when Shri.Raosaheb S/o.Balakrishna Shinde (deceased) was proceeding on his bicycle on his correct side on Rampurwadi-Karoli T-Road, near Santubai stream, Tq: Kavatemahankal , Dist: Sangli, a motorcycle bearing registration No.MH-10/BS-6945 came with high speed and in a rash and negligent manner and dashed to the bicycle of the deceased, due to which, the deceased sustained fatal injuries and he was immediately shifted to Civil Hospital, Miraj, where he succumbed to injuries. The accident occurred solely due to the rash and negligent riding of the offending motorcycle. Petitioner No.1 being wife, petitioner No.2 being minor daughter and petitioners No.3 and 4 being parents of the deceased have stated that they have lost their dependency and sole earning member of the family. The deceased was aged about 29 years and earning Rs.500/- per day by doing coolie work and maintaining his family. Therefore, the claimants claimed compensation against the owner and insurer of the offending motorcycle. 3. Initially the insurer was impleaded as respondent No.2 and was deleted and thereafter, the insurer was impleaded as respondent No.3. 4. In pursuance to the notice, respondent Nos.1 and 3 appeared before the Tribunal and fi led written statements. Respondent No.1 denied all the al legations made in the claim petition. Particularly, age, occupation and earning of the deceased. He has contended that the accident was due to the rash and negligent riding of the bicycle by the deceased himself. He has further stated that his vehicle is duly insured with respondent No.3 and in case of the liability, it may be saddled against him. Respondent No.3 has filed written statement denying all the allegations made in the claim petition. He has also stated that the accident was due to the negligent riding of the bicycle by the deceased. There is a delay in filing the compliant. Therefore he is not liable to pay any compensation. 5. On the basis of the pleadings of the parties, the Tribunal framed issues. 6. In support of the claim, claimant No.1 was examined as PW1 and got marked 10 documents at Ex.P1 to P10. There is a delay in filing the compliant. Therefore he is not liable to pay any compensation. 5. On the basis of the pleadings of the parties, the Tribunal framed issues. 6. In support of the claim, claimant No.1 was examined as PW1 and got marked 10 documents at Ex.P1 to P10. Respondents have not produced any oral or documentary evidence. 7. Learned member of the Tribunal after hearing both the parties passed impugned judgment awarding compensation of Rs. 8,75,000/- with interest at 9% p.a. from the date of petition till the date of deposit. Respondent No.3 the insurer was directed to deposit the compensation amount. 8. The claimants being aggrieved by the impugned judgment and award have filed this appeal seeking enhancement of the compensation, on the ground that the income of the deceased as considered by the Tribunal, is on the lower side and that the Tribunal has not awarded compensation towards loss of future prospects and that the compensation awarded under other heads is also on the lower side. 9. Heard the learned counsel appearing for both the parties. We have perused the entire records. 10. A short question which arise for consideration in this appeal is, as to whether the appellants/claimants have made out grounds for enhancement of the compensation. 11. The learned counsel for the appellants/claimants submitted that the Tribunal has considered the income of deceased at Rs. 5,000/- p.m., which is on the lower side and that the Tribunal has not awarded compensation towards loss of future prospects. 12. Per contra learned counsel for the insurer supported the impugned judgment and award. 13. The claimants have contended before the Tribunal that the deceased was aged about 29 years and he was earning Rs.500/- per day by doing coolie work. However, they have not produced any acceptable evidence to prove the income of the deceased. 14. In the absence of such evidence, the Tribunal has considered the notional income of the deceased at Rs.5,000/- p.m. However, considering the age and occupation of the deceased and that the accident occurred on 24.06.2014 and also considering the guidelines provided for settlement of the cases before the Lok Adalat, it is just and necessary to consider the income of the deceased at Rs. 7,500/- p.m. for the purpose of awarding compensation. 7,500/- p.m. for the purpose of awarding compensation. The claimants are also entitled for addition of 40% of the income of the deceased towards future prospects as per the judgment of the Hon’ble Apex in the case of National Insurance Company Limited Vs. Pranay Sethi and others, (2017) AIR SC 5157. Petitioner No.2 who is minor son of the deceased is entitled for compensation of Rs.50,000/- towards loss of love and affection, in view of the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram and others, (2018) ACJ 2782. Similarly the petitioners No.3 and 4, the parents of the deceased are entitled for compensation of Rs.40,000/- each towards parental consortium as stated in the said case. Therefore, Rs.80,000/-has to be awarded under this head. The income of the deceased being taken at Rs. 7,500/- p.m.,40% addition has to be made which comes to Rs.3,000/-. Thus, the income of the deceased comes to Rs.10,500/-. Out of this 1/3rd has to be deducted towards personal and living expenses of the deceased, which comes to Rs.3,500/-p.m. The remaining income of the deceased taken as Rs.7,000/- has to be multiplied by 12 and 17, the proper multiplier. Thus the total compensation for which the claimants are entitled for Rs.14,28,000/- towards loss of dependency (7,000/-x12x17). The claimants are also entitled for a sum of Rs.70,000/- under conventional heads. Petitioner no.2 is awarded Rs.50,000/- towards loss of love and affection and petitioners No.3 and 4 are awarded Rs.40,000/- each towards parental consortium. Thus the claimants are entitled for total compensation of Rs.16,28,000/- as against Rs.8,75,000/- awarded by the Tribunal. Therefore the appellants/claimants are entitled for enhanced compensation of Rs.7,53,000/- with interest at 8% p.a. from the date of petition till realization. The point for consideration is answered accordingly. In the result, this Court proceeds to pass the following: ORDER The appeal is allowed in part. The appellants/claimants are awarded enhanced compensation of Rs.7,53,000/- in addition to the compensation awarded by the Tribunal with interest at 8% p.a. from the date of petition till realization. The apportionment, deposit and disbursement of the compensation shall be in terms of the order of the Tribunal.