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2019 DIGILAW 225 (KAR)

V. THIPPAMMA v. ZUBEAR PASHA E

2019-01-21

B.V.NAGARATHNA, BELLUNKE A.S.

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JUDGMENT : Bellunke A S, J. - Though this appeal is listed for admission, with the consent of learned counsel on both the sides, it is heard finally. 2. This appeal is filed by the claimants seeking enhancement of compensation by assailing the judgment and award dated 19.02.2016 passed in MVC.No.236/2015 by Motor Accident Claims Tribunal No.V sitting at Siruguppa (hereinafter referred to as 'the Tribunal' for the sake of brevity). 3. For the sake of convenience, the parties are referred to in terms of their status before the Tribunal. 4. Briefly stated the facts are that, on 21.10.2014 at about 4.40 a.m., the husband of the first petitioner and father of petitioner Nos.2 to 4 namely Sri V.Veeresh was passing near Kumara Gouda's House, on Siruguppa-Ballari S.H.19 at Halekote, at that time the first respondent/driver of lorry bearing registration No.KA.10/2578, drove the same in high speed and rash and negligent manner and dashed against V.Veeresh. As a result, said V.Veeresh died on account of the injuries sustained in the said accident while he was under treatment in the hospital. Prior to the accident, deceased V.Veeresh was hale and healthy. At the time of accident, deceased V.Veeresh was aged about 25 years, working as Maistry, earning Rs.500/- per day and he was maintaining his family from his income. Petitioner No.1 being the wife, petitioner Nos.2 to 4 the minor children of the deceased, filed claim petition claiming compensation of Rs.28,50,000/- on account of death of husband of the first petitioner and father of petitioner Nos.2 to 4 from respondent Nos.1 to 3. 5. In response to the service of notice by the Tribunal, respondent Nos.1 to 3 appeared through their counsel and filed their separate written statements. 6. Respondent No.1 denied all the allegations made in the claim petition. That he was the driver of the lorry in question, it was owned by respondent No.2. He had driven the lorry slowly and cautiously on the proper side of the road. The said vehicle was covered by insurance policy issued by respondent No.3. Therefore he had prayed to dismiss the claim petition against him. 7. Respondent No.2 owner of the lorry in question in his written statement had also denied all the allegations made in the claim petition and specifically contended that, as on the date of accident, the Lorry bearing registration No.KA.10/2578 was insured with the third respondent. Therefore he had prayed to dismiss the claim petition against him. 7. Respondent No.2 owner of the lorry in question in his written statement had also denied all the allegations made in the claim petition and specifically contended that, as on the date of accident, the Lorry bearing registration No.KA.10/2578 was insured with the third respondent. The policy of the vehicle in question was in force therefore the third respondent is liable to pay the compensation. Hence, he had prayed to dismiss the claim petition against him. 8. Respondent No.3 insurer of the vehicle in question in his written statement, though had admitted the policy coverage of the vehicle in question denied all the allegations made in the claim petition. Respondent No.3 specifically contended that the first respondent was not holding any valid driving licence as on the date of accident. Policy conditions have not been fulfilled by respondent Nos.1 and 2. Hence, prayed to dismiss the claim petition. 9. On the basis of the rival pleadings of the parties, the Tribunal framed the following issues for its consideration: 1. Whether the petitioners prove that due to actionable negligent driving of respondent No.1 the husband of petitioner No.1 succumbed to injuries on 21.10.2014 ? 2. Whether the petitioners prove that, they are the legal heirs of deceased V.Veeresh? 3. Whether the petitioners are entitled to compensations? If so, for what quantum and from whom? 4. What order or Award? 10. In support of the case of the claimants, petitioner No.1 got examined herself as PW.1 and another witness as PW.2 and produced 14 documents which were marked as Exs.P.1 to P.14. 11. On the basis of the evidence on record, the Tribunal answered Issue No.1 in the affirmative and awarded compensation of Rs.7,99,000/- with interest at the rate of 6% per annum from the date of claim petition till the date of deposit and accordingly issue Nos.2 and 3 had been answered. Not being satisfied with the award of the Tribunal, the claimants have preferred this appeal. 12. We have heard learned counsel for the appellants and learned counsel for the respondent-insurance company and perused the material available on record. 13. The grievance of the appellants is that the income of the deceased V.Veeresh taken by the Tribunal at Rs.4,500/- per month is on the lower side. 12. We have heard learned counsel for the appellants and learned counsel for the respondent-insurance company and perused the material available on record. 13. The grievance of the appellants is that the income of the deceased V.Veeresh taken by the Tribunal at Rs.4,500/- per month is on the lower side. The income of the deceased Veeresh ought to have taken at least Rs.15,000/- per month. The compensation towards loss of dependency has been wrongly assessed by the Tribunal and it is liable to be enhanced. The Tribunal has not considered the decision of the Hon'ble Supreme Court (Munna Lal Jain and Another Vs. Vipin Kumar Sharma and others, (2015) 6 SCC 347 ) to grant 50% future prospects to the self employed persons. The claimants have lost only bread winner of their family. It is further contended that the compensation awarded by the Tribunal towards loss of love and affection, loss of estate and transportation of dead body and funeral expenses are on the lower side. Therefore, the learned counsel for the appellants prayed for enhancement of compensation and interest also to be enhanced by allowing this appeal. 14. Per contra, learned counsel appearing for the respondent insurance company contended that the award is just and proper. This appeal would not call for any interference and sought to dismiss the appeal. 15. Having heard the learned counsel for the respective parties, insofar as the rash and negligent act of the driver of the vehicle in question and the liability to satisfy the award in question are not dispute. Therefore the only point that would arise for our consideration is as follows: 1) Whether the appellants/claimants are entitled for enhancement of compensation? If yes, what is the quantum to which they are entitled? 16. So far as the liability of the third respondent is concerned, the same is not in dispute. The respondent insurance company has not filed any cross objection questioning the point of liability, quantum or on the rash and negligent act on the part of the first respondent. No specific grounds were urged before the Tribunal or before this Court with regard to violation of any policy conditions by respondent Nos.1 and 2. No rebuttal evidence has been led by any of the respondents. 17. No specific grounds were urged before the Tribunal or before this Court with regard to violation of any policy conditions by respondent Nos.1 and 2. No rebuttal evidence has been led by any of the respondents. 17. Therefore, what we have to reconsider in this case is only with regard to the quantum of compensation assessed by the Tribunal and to decide upon the correctness of the compensation awarded by the Tribunal. 18. The deceased was admittedly aged about 25 years as on the date of accident. Since the age of the deceased Veeresh was 25 years, the multiplier applicable is 18'. The Tribunal had also applied the same multiplier. Therefore, it does not call for any interference. 19. It is contended that the petitioner was a Maistry by profession. 'Maistry' means, senior mason who has to supervise the construction of buildings. The claimants have contended that, the deceased was earning Rs.500/- per day. However, in the absence of documentary evidence, having regard to the date of accident and the cost of living then, the value of money etc., we find that the income assessed by the Tribunal is on the lower side, as the notional income that is considered in the Lok Adalath is also taken into consideration. Therefore, we have assessed the notional income of the deceased at Rs.7,500/- per month. 20. The Tribunal does not appear to have awarded any future prospects on the income of the deceased. Having regard to the age of the deceased, he is entitled to 40% future prospects out of his monthly income that the deceased would have earned, had he been alive. As per the decision of the Hon'ble Supreme Court, (National Insurance Company Limited Vs. Pranay Sethi and others, (2017) ACJ 2700), 40% of salary towards future prospects has to be added. Hence, 40% of the monthly income of the deceased would be Rs.3,000/-. The monthly income of the deceased including future prospects would be Rs.10,500/-. After deducting 1/4th of the income of the deceased towards personal expenses, the net income of the deceased would be Rs.7,875/- which is to be multiplied by 12' and 18' multiplier. The claimants are entitled to compensation towards loss of dependency at Rs.17,01,000/- (7,875x12x18= 17,01,000). 21. The Tribunal had awarded Rs.20,000/- under the head of loss of consortium, Rs.20,000/- towards transportation, funeral expenses and Rs.10,000/- towards loss of estate. 22. The claimants are entitled to compensation towards loss of dependency at Rs.17,01,000/- (7,875x12x18= 17,01,000). 21. The Tribunal had awarded Rs.20,000/- under the head of loss of consortium, Rs.20,000/- towards transportation, funeral expenses and Rs.10,000/- towards loss of estate. 22. But we are inclined to award a sum of Rs.40,000/- under the head of loss of consortium to the first petitioner, Rs.40,000/- each to petitioner Nos.2 to 4 under the head of parental consortium, Rs.15,000/- towards transportation of dead body and funeral expenses and Rs.15,000/- towards loss of estate. The appellants - claimants are entitled to total compensation as follows: Sl.No. Particulars Amount in Rs. 1 Towards loss of dependency. 17,01,000/ 2 Loss of consortium to the first petitioner 40,000/- 3 Loss of parental consortium to petitioner Nos.2 to 4 (40,000x3=1,20,000) 1,20,000/- 4 Towards transportation of dead body and funeral expenses. 15,000/- 5 Towards loss of estate 15,000/- Total 18,91,000 /- Compensation awarded by the Tribunal 7,99,000/ - Enhanced Compensation is 10,92,000 /- 23. The total compensation awarded is Rs.18,91,000/- (Rupees Eighteen lakh Ninety-one thousand only) with interest at the rate of 6% per annum as against Rs.7,99,000/- awarded by the Tribunal. 24. Hence, for the above said reasons we answer the point raised for determination partly in the affirmative. We hold that the appellants are entitled for enhancement of compensation as stated above. 25. In the result, the appeal is allowed in part. The enhanced compensation would be Rs.10,92,000/-. The enhanced compensation shall be deposited within a period of six weeks from the date of receipt of certified copy of this judgment. The enhanced compensation shall be apportioned between appellants in the ratio of 40:20:20:20 respectively. 75% of the enhanced compensation awarded to appellant No.1-widow of the deceased shall be deposited in any Post Office or in any Nationalized Bank for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to her after due identification. The entire compensation with proportionate interest awarded to the minor claimants shall be deposited in any Post Office or in any Nationalized Bank until they attain the age of majority. No Costs.