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2020 DIGILAW 1019 (KAR)

Shakeela v. Bapugouda

2020-06-09

S.G.PANDIT, V.SRISHANANDA

body2020
JUDGMENT S.G. Pandit, J. - Though this appeal is listed for admission, with the consent of parties, the matter is finally heard and disposed of by this order. 2. The appellants-claimants are before this court in this appeal not being satisfied with the quantum of compensation awarded by the tribunal under judgment and award dated 04.04.2018 in MVC No.94/2017 on the file of Senior Civil Judge and JMFC, Shiggaon, praying for enhancement of compensation. 3. The brief facts of the case are that, the claimants are the wife, children and mother of the deceased Mr. Azad. The claim petition was filed under Section 166 of MV Act, claiming compensation for the accidental death of Azad in a road accident. It is stated that on 28.03.2016, the deceased Azad was proceeding in his motorcycle chassis bearing No.ILI334041, a canter lorry bearing No.GA-02-V-5899 came from opposite side in a rash and negligent manner and dashed against the motorcycle. Due to which, Azad suffered grievous injuries and died on the spot. It is stated that the deceased was doing bar bending work, earning a sum of Rs.30,000/- per month, who was aged about 38 years as on the date of accident. It is stated that the claimants were wholly dependant on the deceased. 4. On issuance of notice, respondent Nos.1 and 2 appeared before the tribunal and only respondent No.2 Insurance company filed its written statement. In its written statement the Insurance company denied the entire claim petition averments. But, admitted the Insurance policy. It is contended that there is violation of terms and conditions of the policy and also disputed the legal heir-ship of the claimants. The claimants in support of their case, examined claimant No.1 as PW1 and marked the documents as Ex.P1 to 15. On behalf of respondents respondent No.2 got examined as RW1 and no documents were marked on behalf of them. The tribunal on careful consideration of the material on record, awarded a total compensation of Rs.13,42,000/- with interest @ 9% p.a. 5. While awarding the above compensation, the tribunal assessed the income of the deceased at Rs.8,000/- per month by deducting 1/5th amount towards the personal expenses of the deceased. The claimants not being satisfied with the quantum of compensation awarded by the tribunal, are before this court for enhancement of compensation. 6. Heard the learned counsel for the appellants and learned counsel for the respondent-Insurance company. The claimants not being satisfied with the quantum of compensation awarded by the tribunal, are before this court for enhancement of compensation. 6. Heard the learned counsel for the appellants and learned counsel for the respondent-Insurance company. 7. The learned counsel for the appellants prays for enhancement of the compensation on two grounds. First ground urged is that the tribunal has not properly assessed the income of the deceased. Further, he submits that that the deceased was earning a sum of Rs.30,000/- per month by doing bar bending work. Whereas, the tribunal assessed at Rs.8,000/- per month, which requires to be assessed on the higher side. 8. Further, the learned counsel contends that the tribunal committed an error in not awarding any compensation towards future prospects. The deceased was aged about 38 years as on the date of accident and in view of the decision of the Hon'ble Supreme Court in the in the case of National Insurance Company Limited V/s. Pranay Sethi and others, (2017) AIR SC 5157 , the claimants would be entitled for adding 40% income towards future prospects. Thus, prays for allowing the appeal by enhancing the compensation. 9. Per contra, the learned counsel for the respondent-Insurance company would submit that the quantum of compensation awarded by the tribunal is just compensation, which needs no interference. He further submits that in the absence of any material to establish the income of the deceased, the tribunal rightly assessed the income of the deceased at Rs.8,000/- per month, which needs no interference. Further, he submits that the claimant would not be entitled for compensation on the head of future prospects, since the deceased was not a permanent employee. Thus, he prays for dismissal of the appeal. 10. Having heard the learned counsel for the parties and on perusal of the material on record, the following points would arise for our consideration. : 1. Whether the income of the deceased assessed by the tribunal at Rs.8,000/- is proper and correct? 2. Whether the claimant would be entitled for compensation towards future prospects? 11. Answer for the above points is negative and affirmative respectively for the following reasons: 12. The accident that took place on 28.03.2016 involving the motorcycle chassis bearing No.ILI334041 and canter lorry bearing No.GA-02/V-5899 and the accidental death of one Mr.Azad is not in dispute. 2. Whether the claimant would be entitled for compensation towards future prospects? 11. Answer for the above points is negative and affirmative respectively for the following reasons: 12. The accident that took place on 28.03.2016 involving the motorcycle chassis bearing No.ILI334041 and canter lorry bearing No.GA-02/V-5899 and the accidental death of one Mr.Azad is not in dispute. The claimants are before this court in this appeal praying for enhancement of compensation. The counsel for the appellants-claimants contended that the deceased was earning Rs.30,000/- per month by working as bar bender. But, no material whatsoever is placed on record to establish the income of the deceased. In the absence of any material, this court has to assess the income notionally. The notional income assessed by the tribunal is on the lower side. This court and Lok Adalath while settling the accident claims of the year 2016, would normally assess the notional income of the victim of the accident at Rs.8,750/- per month. Therefore, 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.8,750/- per month. There is no dispute that the deceased was aged about 38 years as on the date of accident. Hon'ble Apex Court in the case of Pranay Sethi (Supra), has held that wherever the deceased was aged below 40 years, the claimant would be entitled for adding 40% income towards future prospects. As such, we award the compensation on the head of loss of future prospects at 40% of the assessed income. Thus, after adding 40% income towards future prospects, the claimant would be entitled for the following modified compensation under the head of loss of dependency including future prospects: Rs.8,750X40% = 3,500/- (8,750+3,500=12,250/-) 12,250X1/5 = 2,450/- (12,250-2,450=9,800) 9,800X 12X15= 17,64,000/- 1 Loss of dependency including future prospects 17,64,000/- 2 Loss of consortium 70,000/- 3 Parental and filial consortium 1,20,000/- Total 19,54,000/- 13. Thus, the claimants would be entitled to total compensation of Rs.19,54,000/- as against Rs.13,42,000/- with interest @ 9% p.a. from the date of petition till the realization. 14. The apportionment and deposit would remain as ordered by the tribunal in the same proportion. 15. Respondent No.2-Insurance Company is directed to deposit the enhanced compensation amount with accrued interest within six weeks from the date of receipt of certified copy of this judgment. 14. The apportionment and deposit would remain as ordered by the tribunal in the same proportion. 15. Respondent No.2-Insurance Company is directed to deposit the enhanced compensation amount with accrued interest within six weeks from the date of receipt of certified copy of this judgment. Draw the modified award accordingly.