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2020 DIGILAW 1018 (KAR)

Bangari v. Kailaash

2020-06-09

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT S.G. Pandit, J. - The claimants are before this Court in this appeal praying for enhancement of compensation not being satisfied with the quantum of compensation awarded under judgment and award dated 13.04.2017 passed in MVC No.475/2016 on the file of the IX Addl. District and Sessions Judge and Addl. MACT, Belagavi (for short, 'Tribunal'). 2. Even though the appeal is listed for Admission, with the consent of the learned counsel for the parties, the same is heard finally and disposed of by this judgment. 3. The claimants are wife and major children of one Sri Babu Hakare, who died in a road traffic accident on 22.11.2015 at about 12.30 hours. It is stated that when the deceased Babu Hakare was proceeding on a motor cycle bearing registration No.KA-23/EB-3496 in a moderate speed, at that time, Ashok Leyland Truck bearing registration No.MH-10/Z-4379 driven by its driver came from opposite direction in a rash and negligent manner and dashed to his motor cycle causing fatal injuries to the deceased. Subsequently, he succumbed to the injuries in the hospital. It is stated that the claimants had spent more than Rs.4 lakhs towards his treatment and Rs.50,000/- towards funeral and other incidental expenses. It is stated that the deceased was aged about 59 years and he was earning Rs.10,000/- per month by doing private service and by doing agriculture, he was earning Rs.5 lakhs per annum. 4. On service of notice, respondent No.1 remained absent whereas, respondent No.2-Insurance Company appeared and filed its statement denying the averments made in the claim petition. Further, it is contended that the deceased was not holding valid and effective driving license as on the date of the accident and the accident had occurred only due to rash and negligent riding of the motor cyclist. It is also contended that the driver of Ashok Leyland Truck was not holding valid and effective driving license as on the date of the accident, as such, they denied their liability. 5. In support of their case, the claimant No.3 examined as PW1, apart from marking the documents as per Exs.P1 to P12. No evidence was led on behalf of the respondents, but marked one document as Ex.R1- Insurance Policy. 5. In support of their case, the claimant No.3 examined as PW1, apart from marking the documents as per Exs.P1 to P12. No evidence was led on behalf of the respondents, but marked one document as Ex.R1- Insurance Policy. The tribunal on scrutiny of entire material on record awarded total compensation of Rs.8,11,098/- with interest at 6% per annum from the date of petition till the date of realization, fixing the contributory negligence to an extent of 25% on the deceased, under the following heads: Loss of dependency Rs.3,24,000/- Loss of love and affection Rs.50,000/- Loss of estate Rs.25,000/- Loss of consortium Rs.25,000/- Funeral & transportation Expenses Rs.25,000/- Medical expenses Rs.3,62,098/- Total Rs.8,11,098/- While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.6,000/- per month and deducted 50% towards personal expenses of the deceased considering fact that wife was only dependent and claimants 2 and 3 are married daughter and major son. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court in this appeal praying for enhancement of compensation. 6. Heard the learned counsel for the appellants-claimants and learned counsel for the respondent No.2-Insurance Company and perused the material on record. 7. Learned counsel for the appellants submits that even though the appellants have taken ground with regard to contributory negligence, they would not press the same and restrict the appeal to enhancement. Learned counsel would submit that the compensation awarded by the Tribunal is on the lower side so also the income assessed by the Tribunal at Rs.6,000/- per month is on the lower side. He submits that the deceased was doing private service and was earning a sum of Rs.10,000/- per month apart from doing agricultural work, wherein he was earning a sum of Rs.5 lakhs per annum. Hence, he prays for revising the monthly income assessed by the Tribunal on higher side. Learned counsel contends that the Tribunal failed to award the compensation on the head future prospects. Since the deceased was aged about 59 years, the claimants would be entitled for adding 10% towards future prospects. Thus, he prays for allowing the appeal. 8. Per contra, learned counsel for the respondent No.2-insurance company would submit that the quantum of compensation awarded by the Tribunal is just compensation which needs no interference. Since the deceased was aged about 59 years, the claimants would be entitled for adding 10% towards future prospects. Thus, he prays for allowing the appeal. 8. Per contra, learned counsel for the respondent No.2-insurance company would submit that the quantum of compensation awarded by the Tribunal is just compensation which needs no interference. Further, learned counsel would submit that the claimants have not proved the income and as such, the assessment of notional income at Rs.6,000/- per month is proper and correct. He submits that the claimants would not be entitled for compensation on the head of future prospects since the deceased was not having permanent employment. Thus, he prays for dismissal of the appeal. 9. Having heard the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration in this appeal: a) Whether the Tribunal is justified in assessing the income of the deceased at Rs.6,000/- per month? b) Whether the claimants would be entitled for addition of 10% to the assessed income towards future prospects? 10. Our answer to the above points would be in the negative and affirmative respectively for the following reasons: 11. The accident which had taken place on 22.11.2015 and accidental death of Babu involving motor cycle bearing registration No.KA-23/EB-3496 and Ashok Leyland Truck bearing registration No.MH-10/Z- 4379 are not in dispute in this appeal. The claimants are before this Court in this appeal praying for enhancement of compensation. The claimants stated that the deceased was aged about 59 years and was earning a sum of Rs.10,000/- per month by doing private service and also earning Rs.5 lakhs per annum from agricultural work. No material is produced to establish the income of the deceased. In the absence of any material to establish the income, it is for this Court to assess the notional income of the deceased. The notional income assessed by the Tribunal at Rs.6,000/- per month is on the lower side. Normally, this Court and Lok Adalaths while settling the accident claims of the year 2015, normally would assess the notional income at Rs.8,000/- per month. In the instant case, in the absence of any material to establish the income of the deceased, we deem it appropriate to assess the notional income of the deceased at Rs.8,000/- per month. Normally, this Court and Lok Adalaths while settling the accident claims of the year 2015, normally would assess the notional income at Rs.8,000/- per month. In the instant case, in the absence of any material to establish the income of the deceased, we deem it appropriate to assess the notional income of the deceased at Rs.8,000/- per month. Admittedly, the deceased was aged about 59 years as on the date of the accident. The Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and others, (2017) AIR SC 5157 , has held that the claimants would be entitled for addition of 10% to the assessed income towards future prospects, wherever the deceased was aged between 50-60 years. . As such, the claimants would be entitled for addition of 10% towards future prospects. The Tribunal committed grave error in deducting 50% towards personal expenses of the deceased while determining the compensation. Since the wife is the dependent as per the decision of the Hon'ble Apex Court in the case of Sarla Verma and Others Vs. Delhi Transport Corporation & Another, (2009) 6 SCC 121 , the deduction towards personal expenses of the deceased would be 1/3rd of the assessed income. Thus, the claimants would be entitled for the following modified compensation: Loss of dependency including future prospects: Rs.8,000 + 10% = Rs.8,800 1/3% = Rs.5867 x 12 x 9 = Rs.6,33,636 12. In all, the claimants would be entitled for total compensation for the following heads: Loss of dependency = Rs.6,33,636/- Conventional head = Rs.75,000/- Medical expenses = Rs.3,62,098/- Total = Rs.10,70,734 13. Thus, the claimants would be entitled for total compensation of Rs.10,70,734/- as against Rs.8,11,098/- awarded by the Tribunal with interest at 6% per annum from the date of petition till the date of deposit. 14. In the result, we proceed to pass the following: ORDER 1. The appeal filed by the claimants is allowed in part. 2. The judgment and award of the Tribunal is modified to the extent that the claimants would be entitled for total compensation of Rs.10,70,734/- with interest at 6% per annum from the date of petition till the date of realization. 3. The liability, disbursement, deposit and apportionment of the enhanced compensation shall hold good as per the order of the Tribunal. 4. Draw the modified award accordingly.