Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 626 (KAR)

ABDULSAB v. BASAVARAJ

2019-03-12

P.B.BAJANTHRI, P.G.M.PATIL

body2019
JUDGMENT : P.G.M.Patil, J. The claimants, being unsatisfied with the judgment and award dated 25.07.2012 passed in MVC No.2174/2010 by the MACT-II, Bijapur, have filed this appeal. 2. It is the case of the claimants before the Tribunal that the deceased Sadiq was working as spare driver in truck bearing Reg.No.CNL-7199. On 05.03.2010 the said truck was parked by the driver at Gadag Co-operative Cotton Society godown at Gadag without giving any support to its wheels on slippery road. Deceased was sleeping just by the left side of the said truck. At about 2.00 p.m. the said truck suddenly moved in reverse direction and ran over the deceased who was sleeping. As a result, he sustained grievous injuries and succumbed to the said injuries while undergoing treatment on 05.03.2010. The petitioners have contended that the accident occurred due to the carelessness and negligent parking of the said lorry. The petitioners being parents, wife and daughter of the deceased were depending upon the income of the deceased who was working as driver and was earning Rs.10,000/- per month and was aged about 24 years. Thereby they have suffered loss of dependency. Respondent No.1 is the owner and respondent No.2 is the insurer of the said truck and they are jointly and severally liable to pay the compensation. 3. In pursuance of the notice, respondent Nos.1 and 2 appeared before the Tribunal and filed their written statements denying the averments made in the petition. They have denied age, occupation and income of the deceased. They have also denied that the accident was due to negligent act of the driver of the lorry and further contended that there is no nexus between the injuries and the death of the deceased. Therefore, they sought for dismissal of the petition. 4. Further respondent No.2 the insurer contended that the driver of the offending lorry was not possessing valid and effective driving license and as such there is violation of policy conditions and therefore Insurance Company is not liable to pay any compensation. 5. Based on the pleadings of the parties, the Tribunal framed issues as under: "1. Whether petitioners prove that, Sadiq Abdulsab Choudhari died in the road traffic accident that took place on 5.3.2010 about 14:00 hours at Gadag Cotton Sale society near cement godown Gadag was due to rash and negligent parking of truck bearing No.CNL-7199 by its driver? 2. 5. Based on the pleadings of the parties, the Tribunal framed issues as under: "1. Whether petitioners prove that, Sadiq Abdulsab Choudhari died in the road traffic accident that took place on 5.3.2010 about 14:00 hours at Gadag Cotton Sale society near cement godown Gadag was due to rash and negligent parking of truck bearing No.CNL-7199 by its driver? 2. Whether petitioners are entitled for compensation? If so, what is a quantum and from whom? 3. What order or award?" 6. In support of their claim, claimant No.3 got examined herself as PW-1 and one witness as PW-2 and got marked eight documents. Respondent No.2 has not led any oral evidence but produced copy of insurance policy at Ex.R-1. The learned Member of the Tribunal, after hearing both the parties, passed the impugned judgment awarding compensation of Rs.5,61,400/- together with interest at 6% from the date of petition till realisation. It is further held by the Tribunal that the deceased has contributed 25% towards causing the accident and therefore respondent Nos.1 and 2 are liable to pay 75% of the compensation awarded in the case. 7. We have heard the learned counsel for the appellants and respondent No.2. Learned counsel for the appellants submitted that the Tribunal has not awarded future prospects, which the claimants are entitled to, namely addition of 50% to the income of the deceased. Further the Tribunal has erroneously applied multiplier 17' instead of 18' and therefore the learned counsel for the appellants prays for allowing the appeal. 8. Per contra, learned counsel for respondent No.2 supports the impugned judgment and award. 9. We have carefully examined the record. 10. A short point for consideration in this appeal is: Whether the claimants are entitled for enhancement in the compensation? 11. The claimants contended before the Tribunal that the deceased was working as a driver and was earning a sum of Rs.10,000/- per month. However, the claimants, except producing copy of the driving license at Ex.P-8, have not produced any evidence, in order to support their contention that the deceased was working as spare driver in the lorry and was earning Rs.10,000/- per month. Therefore, the Tribunal has considered the income of the deceased as Rs.4,500/- per month. The accident in question occurred on 05.03.2010. Therefore, the Tribunal has considered the income of the deceased as Rs.4,500/- per month. The accident in question occurred on 05.03.2010. Considering the year of the accident, age of the deceased and the nature of work of the deceased, we consider it just and proper to take the income of the deceased at Rs.6,000/- per month for the purpose of assessing loss of dependency. We take the age of the deceased as 24 years in view of the age mentioned in the postmortem report and therefore the proper multiplier applicable is 18'. 50% towards future prospects has to be added to the income of the deceased at Rs.6,000/- per month, in view of the decision of the Hon'ble Supreme Court in the cases of National Insurance Company Limited vs. Pranay Sethi and others, (2017) AIR SC 5157 and Hem Raj vs. Oriental Insurance Company Ltd. and others,2018 ACJ 6. Thereby, the income of the deceased comes to Rs.9,000/- per month. Out of this 1/4th has to be deducted towards personal and living expenses of the deceased, which comes to Rs.2,250/-. There remains income of Rs.6,750/- per month which has to be multiplied by 12 and 18. Thus, loss of dependency to the claimants would be Rs.14,58,000/- (Rs.6,750/- x 12 x 18). The claimants are also entitled for a sum of Rs.70,000/- towards conventional heads namely, Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of consortium to the spouse of the deceased and Rs.15,000/- towards funeral expenses. Thus, the claimants are entitled for a total compensation of Rs.15,28,000/-. Out of this, the claimants are entitled for 75% of the said compensation in view of the liability of 25% having been fixed against the deceased. 25% of the said, amount comes to Rs.3,82,000/- and after deducting the said amount, the claimants are entitled for a total compensation of Rs.11,46,000/- as against the compensation awarded by the Tribunal at Rs.5,61,400/-. Thus, the claimants are entitled to an enhanced compensation of Rs.5,84,600/- together with interest at 6% per annum from the date of petition till the date of realisation. Therefore, the impugned award needs to be modified. Accordingly, we proceed to pass the following: ORDER The appeal is allowed in part. The appellants claimants are entitled for an enchanted compensation of Rs.5,84,600/- together with interest at 6% per annum from the date of petition till realisation.