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2019 DIGILAW 775 (KAR)

Renuka v. Sahebgouda

2019-04-01

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

body2019
JUDGMENT : P.G.M. PATIL, J. 1. The claimants being dissatisfied with the judgment and award dated 21.11.2016 passed in MVC No.1408/2015 by the IV Addl. District Judge and Member, MACT No. XIII, Vijayapur have filed this appeal. 2. It is the case of the claimants before the Tribunal that on 05.05.2015 at about 9.00 p.m. on Muddebihal-Almatti road near Hullur Canal when the deceased Chandrashekhar @ Chandramappa was riding motorcycle bearing No.KA 29/Q 5551 along with pillion rider namely Basavaraj, the driver of the maxicab bearing No.KA-28/C 1080 drove the same in a rash and negligent manner from Muddebihal side and dashed to the backside of the motorcycle causing the accident. The deceased Chandrashekhar @ Chandramappa sustained fatal injuries in the said accident and succumbed to the injuries while under treatment. The claimants have stated that deceased was doing agriculture in his 20 acres irrigated land and earning Rs.5,00,000/- p.a. and he was the only earning member in the family and the petitioners were depended upon his income. Therefore, they claimed compensation of Rs.55,00,000/- against respondent No.1, the owner of maxi cab and respondent No.2 insurer of the said vehicle. The said claim petition was heard along with another claim petition in MVC No.1409/2015. 3. In pursuance of notice, respondent No.1 remained absent and he was placed ex parte. Respondent No.2 appeared before the Tribunal and filed his written statement, denied all the averments made in the petition as false and untenable. The complainant is the father-in-law of the deceased who is not an eyewitness to the alleged incident. The alleged accident occurred due to the negligence of the deceased who was riding the motorcycle without holding a driving license. The maxi cab is not at all involved in the alleged incident and therefore he is not liable to pay compensation. On this ground he prayed for dismissal of the petition. 4. On the basis of the pleadings of the parties, the Tribunal framed issues. In support of their claim petitioner No.1 Smt. Renuka wife of deceased has got examined herself as PW.1 and have got marked 18 documents. Respondent no.2 has got marked two documents. However no oral evidence was adduced on behalf of respondent No.2. 5. Learned Member of the Tribunal after hearing both the parties passed impugned judgment awarding compensation of Rs.12,77,000/- together with interest at 6% p.a. from the date of petition till realization. 6. Respondent no.2 has got marked two documents. However no oral evidence was adduced on behalf of respondent No.2. 5. Learned Member of the Tribunal after hearing both the parties passed impugned judgment awarding compensation of Rs.12,77,000/- together with interest at 6% p.a. from the date of petition till realization. 6. Learned counsel for the appellants/claimants submitted that the Tribunal has considered the income of the deceased at Rs.7,000/- per month which is on the lower side. Further, the Tribunal has not awarded 30% of the income towards future prospects and that the compensation awarded on other heads are also on the lower side. Hence, he sought for enhancement in the compensation. 7. Per contra, learned counsel for respondent No.2 submitted that the claimants are not entitled for loss of love and affection, loss of care and guidance of minor children and that the claimants are also not entitled for future prospects since the deceased had no fixed income. 8. Heard learned counsel for the parties. 9. After having heard learned counsel for the parties, now the following short point arise for consideration before this Court. "Whether the claimants have made out grounds for enhancement in the compensation?" 10. The claimants have contended before the Tribunal that the deceased was aged about 45 years and he was earning Rs.5,00,000/- per year from agriculture and that he owned 20 acres of irrigated land. The claimants have produced RTC's of the lands at Ex.P11 and P14, in order to prove that the deceased was cultivating the said lands and he was earning income. These RTC's goes to show that the said lands were standing in the name of the deceased Chandramappa and therefore he was earning by way of agriculture and he was maintaining his family consisting of himself and claimants out of the agriculture income. Therefore, considering the material on record, the Tribunal has taken the income of the deceased at Rs.7,000/- per month which cannot be held as improper. Hence, loss of dependency has to be assessed by taking income of the deceased at Rs.7,000/- per month. 11. Therefore, considering the material on record, the Tribunal has taken the income of the deceased at Rs.7,000/- per month which cannot be held as improper. Hence, loss of dependency has to be assessed by taking income of the deceased at Rs.7,000/- per month. 11. However, the claimants are entitled for additional 30% of said income towards future prospects in view of the dictum of the Hon'ble Supreme Court of India in the case of National Insurance Company Limited vs. Pranay Sethi and Others, (2017) ACJ 2700 (SC) which is followed in the case of Hemraj vs. Oriental Insurance Company Limited and Others, (2018) ACJ 5. Learned counsel for the respondent No.2 submitted that on the basis of the dictum of the Hon'ble Supreme Court of India in the case of Hemraj Vs. Oriental Insurance Company Limited and Other, future prospects cannot be awarded. In paragraph No13 of the Hemraj judgment stated supra, the Hon'ble Supreme Court has observed that: "Para No.13 We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made. The Tribunal made addition of 50% while the High Court has deleted the same." 12. Therefore, even where the income is determined on a guess work taking into consideration the facts and circumstances of the case, the claimants are entitled for additional 30% of the income as future prospects. In view of the age of the deceased as 45 years, an additional 30% towards future prospect has to be made. Accordingly Rs.7,000/- plus 30% of 7,000/- i.e. 2,100/- total income of the deceased comes to Rs.9,100/- per month, 1/4th of this amount has to be deducted towards personal expenses of the deceased which comes to 2,275/-, remaining amount would be Rs.6,825/- The same has to be multiplied by 12 and by applying proper multiplier of 14. Thus, loss of dependency of the claimants comes to Rs.11,46,600/- (6,825x12x14). The Tribunal has awarded Rs.1,00,000/- towards loss of love and affection and another Rs.1,00,000/- towards loss of care and guidance to minors. Learned counsel for respondent No.2 submitted that the claimants are not entitled for compensation under these heads. 13. Thus, loss of dependency of the claimants comes to Rs.11,46,600/- (6,825x12x14). The Tribunal has awarded Rs.1,00,000/- towards loss of love and affection and another Rs.1,00,000/- towards loss of care and guidance to minors. Learned counsel for respondent No.2 submitted that the claimants are not entitled for compensation under these heads. 13. Admittedly, the Insurance Company has not challenged the impugned judgment and award, in view of the dictum of the Hon'ble Supreme Court of India in the case of Magma General Insurance Company Vs. Nanu Ram Alias Chuhru Ram & Others, (2018) ACJ 2782, the claimants are entitled for compensation towards loss of love and affection and also loss of care and guidance to the minors. Therefore, the compensation awarded under these heads by the Tribunal is maintained. Similarly Rs.1,20,049/- awarded towards medical expenses is retained. 14. The claimants are entitled for compensation of Rs.15,000/- towards loss of estate; Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. Thus, the impugned judgment and award needs to be modified as under: Loss of dependency Rs. 11,46,600/- Loss of Love & Affection Rs.01,00,000/- Loss of care and guidance Rs.01,00,000/- Medical Expenses Rs. 1,20,049/- Loss of Estate Rs.15,000/- Loss of consortium Rs.40,000/- Funeral Expenses Rs.15,000/- Total: Rs.15,36,649/- 15. This Court on reassessment of the compensation comes to the conclusion that the claimants are entitled for compensation of Rs.15,36,649/- as against the compensation awarded by the Tribunal at Rs.12,77,000/-. Therefore, claimants are entitled for enhanced compensation of Rs.2,59,649/- In the result, we pass the following: ORDER The appeal is partly allowed. The appellants-claimants are entitled for enhanced compensation of Rs.2,59,649/- together with interest at 6% per annum from the date of petition till realization.