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2020 DIGILAW 1072 (KAR)

Sundaraj v. Jagadish Poojary

2020-06-15

B.V.NAGARATHNA, RAVI V.HOSMANI

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JUDGMENT Ravi V. Hosmani, J. - Though this appeal is listed for admission, with consent of learned counsel appearing on both sides, it is heard finally. Learned counsel for the appellants is present in person. Learned counsel for the respondents has appeared through video conference. 2. This appeal has been filed by the claimants being aggrieved by the inadequate compensation awarded by the Tribunal vide judgment and award dated 18.6.2014,in M.V.C.No.808/2012 filed under Section 166 of the Motor Vehicles Act, 1988, (for short 'the Act') by Senior Civil Judge & Addl. Motor Accident Claims Tribunal, Kundapura. 3. The brief facts leading to the above appeal are as under: On 28.04.2012 one Shankar was driving a Maruti Omni bearing registration No.KA-20-C-2087 along with others and was proceeding from Naravi village towards Belthangady on Naravi-Belthangady State Highway. When he reached Kukkunje Cross in Kuthloor village, Belthangady, a Mahindra pickup vehicle bearing registration No.KA-21-A-4076 driven by the first respondent came from the opposite side in a rash and negligent manner and dashed against the Maruti Omni after coming on the wrong side. In the said accident, Shankar sustained fatal injuries and died during treatment. Claiming compensation on account of the death, his parents filed claim petition under Section 166 of the Motor Vehicles Act, seeking compensation of Rs.30,50,000/-. 4. On service of notice, respondent No.1-owner of the Mahindra Pickup vehicle did not appear before the Claims Tribunal and placed ex-parte. But respondent No.2- insurer entered appearance and filed its objections. 5. In its objections, respondent No.2-insurer has admitted the issuance of policy. It has denied the rash and negligent driving of the Mahindra pick up vehicle by its driver. It also contended that the drivers of both the vehicles did not possess valid and effective driving licences on the date of the accident and hence, it was not liable to pay the compensation. It also denied the entire petition averments. 6. It has denied the rash and negligent driving of the Mahindra pick up vehicle by its driver. It also contended that the drivers of both the vehicles did not possess valid and effective driving licences on the date of the accident and hence, it was not liable to pay the compensation. It also denied the entire petition averments. 6. On the basis of the rival pleadings, the Claims Tribunal framed the following issues for its consideration: i) Whether the petitioners prove that the deceased had sustained injuries and succumbed to the injuries in a road traffic accident alleged to have taken place on 28- 04-2012 at about 3.00 p.m., while he was driving in Maruthi Omini bearing Reg.No.KA- 20-C-2087 near Kukkunje Cross in Kutholoor village, Belthangadi and it is due to the rash and negligent driving of the driver of the Mahindra Pickup bearing Reg.No.KA 21 A 4076? ii) Whether the 2nd respondent proves that the drivers of the Maruthi Omini bearing Reg.No.KA-20-X-2087 and Mahindra Pickup bearing REg.No.KA-21-A-4076 have no valid and effective driving licence to drive the said vehicles at the time of accident. iii) Whether the petitioners are entitled for compensation? If so, what is the quantum? From whom? iv) What Order or Award? 7. In support of the case of the claimants, claimant No.1 got examined herself as PW-1 and another witness as PW-2 and got marked Exhibits P1 to P5. The respondents did not lead any evidence. 8. On the basis of the evidence on record, the Claims Tribunal answered issue No.1 in the affirmative,; issue No.2 in the negative, Issue No.3 partly in the affirmative and issue No.4 as partly allowed by awarding a total compensation of Rs.5,39,000/- with interest at the rate of 6% per annum from the date of the petition till the date of deposit under the following heads: Loss of dependency Rs.5,04,000.00 Conveyance and transportation charges Rs. 5,000.00 Funeral and obsequies Rs. 10,000.00 Loss of love and affection Rs. 10,000.00 Loss of Estate Rs. 10,000.00 Total Rs.5,39,000.00 9. Being aggrieved by the inadequate compensation, the claimants have preferred this appeal for enhancement. We have heard Sri. H. Jayakara Shetty, learned counsel for appellant, who has appeared in person and Sri Ravi S. Samprathi, learned counsel appearing for respondent No.1 Insurance Company, through video conference. 10. 10,000.00 Loss of Estate Rs. 10,000.00 Total Rs.5,39,000.00 9. Being aggrieved by the inadequate compensation, the claimants have preferred this appeal for enhancement. We have heard Sri. H. Jayakara Shetty, learned counsel for appellant, who has appeared in person and Sri Ravi S. Samprathi, learned counsel appearing for respondent No.1 Insurance Company, through video conference. 10. Learned counsel for the appellants submitted that the deceased was working as a driver and was earning more than Rs.20,000/- per month. However, the Claims Tribunal has considered notional income of Rs.6,000/- per month and calculated the loss of dependency which requires to be enhanced. Learned counsel further submitted that the Claims Tribunal erred in applying multiplier of 14', even though the deceased was aged about 22 years and the multiplier applicable would be 18, which calls for rectification. Even the award under conventional heads were on the lower side and he sought for enhancement on those heads also. 11. On the other hand, learned counsel for the respondent/insurer submitted that the compensation awarded by the Claims Tribunal is just and proper and there are no good grounds for further enhancement, hence, sought for dismissal of the appeal. 12. Having heard learned counsel for the respective parties and on perusing the material on record, the following points that would arise for our consideration are:- i) Whether the claimants are entitled to additional compensation? ii) What order? 13. The insurer has not preferred any appeal against the award passed by the Claims Tribunal. The claimant has filed this appeal seeking for enhancement of the compensation. Therefore, the occurrence of the accident on 28.04.2012 between Maruti Omni bearing registration No. KA-20-C-2087 and Mahindra Pickup vehicle bearing registration No. KA-21-A-4076 on Naravi Belthangady State Highway due to the negligence of the driver of the Mahindra pickup vehicle is not in dispute. It is also not in dispute that in the said accident, the claimant's son sustained fatal injuries and died. As the claimants are seeking for enhancement of compensation the only dispute is with regard to the quantum of compensation. Point No.(i): 14. In the case on hand, deceased Shankar was a driver by profession. The accident has occurred in the year 2012. Even the earning of an unskilled coolie would not be less than Rs.7,000/- per month during the year 2012. Point No.(i): 14. In the case on hand, deceased Shankar was a driver by profession. The accident has occurred in the year 2012. Even the earning of an unskilled coolie would not be less than Rs.7,000/- per month during the year 2012. Since the deceased was a driver, his income could be and is considered at Rs.10,000/- per month. The deceased was aged about 22 years at the time of the accident. As per the decision of the Hon'ble Supreme Court in SARLA VARMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER, (2009) 6 SCC 121 , which is affirmed in NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS, (2017) AIR SC 5157 , the proper multiplier to be applied would be the one corresponding to the age of the deceased, which, in this case would be 18'. Further, as per the decision in Pranay Sethi (Supra) 40% of the income is required to be added towards future prospects, i.e., Rs.10,000/- + 40% = Rs.14,000/-. Since the deceased was a bachelor, the deduction towards his personal expenses would be 50% i.e., Rs.14,000/- - 50% = Rs.7,000/-. Therefore, the total loss of dependency would be Rs.7,000/- x 12 x 18 = Rs.15,12,000/-. The claimants would also be entitled to a sum of Rs.15,000/- towards loss of estate and another sum of Rs.15,000/- towards funeral expenses. In addition, each of the parent is awarded to a sum of Rs.30,000/- towards loss of love and affection. Thus, the claimants are entitled for a total compensation of Rs.16,02,000/-. Hence, point No.(i) is answered in the affirmative. Accordingly, the claimants are entitled for an additional compensation of Rs.10,63,000/-. In the result, we pass the following: ORDER The appeal is allowed in part. The appellants are entitled to reassessed compensation of Rs.16,02,000/- on the aforesaid heads. The enhanced compensation of Rs.10,63,000/-, shall carry interest at 6% per annum from the date of claim petition till realization. The enhanced compensation shall be apportioned between the claimants/parents of the deceased in the following manner:- a) 30% of the compensation is ordered to be paid to the father of the deceased. Out of the compensation awarded to the father of the deceased, 50% shall be deposited in any Post Office and /or Nationalized Bank, for an initial period of three years, which shall be free from encumbrance. Out of the compensation awarded to the father of the deceased, 50% shall be deposited in any Post Office and /or Nationalized Bank, for an initial period of three years, which shall be free from encumbrance. He shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to him. b) The remaining 70% of the compensation is ordered to be paid to the mother of the deceased. Out of the enhanced compensation awarded to the mother of the deceased, 75% shall be deposited in any Post Office/Nationalized Bank for an initial period of ten years which shall be free from encumbrance. She shall be entitled to draw periodical interest on the said deposit. Balance 25% of the enhanced compensation shall be released to her after due identification. c) Respondent No.-2 Insurance Company shall deposit the balance compensation before the Claims Tribunal within a period of four weeks from the date of receipt of the certified copy of this judgment. Parties to bear their respective costs.