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2020 DIGILAW 1104 (KAR)

K. Pramilamma v. K. Govindappa

2020-06-17

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT S.G. Pandit, J. - The appellants/claimants are in appeal praying for enhancement of compensation not being satisfied with the compensation awarded under the judgment and award dated 15.06.2018 in MVC No.244/2016 on the file of the I Addl. Senior Civil Judge and Member, MACT-V, Ballari. 2. The claimants are the wife and major children of the deceased K.Veerabhadrappa. The claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the death of K.Veerabhadrappa in a road traffic accident. It is stated that on 26.10.2014 when the deceased was proceeding in a motorcycle, APSRTC bus bearing No.AP-28/Z-0868 came in a rash and negligent manner and dashed to the motorcycle of the deceased, due to which the deceased succumbed to the injuries. The deceased was aged 45 years and was doing agricultural work, earning Rs.25,000/- p.m. 3. On issuance of notice, both the respondents appeared and respondent No.2 filed statement which was adopted by respondent No.1. In the written statement, respondent No.2 denied the entire claim petition averments and contended that the insurer of the motorcycle was necessary party to the petition. Further, it is contended that the accident occurred due to the rash and negligent riding of the motorcycle of the deceased. 4. The claimant examined herself as PW.1 and also examined other two witnesses as PWs.2 and 3 apart from marking Exs.P.1 to P.30. Respondents examined RW.1 and no documents were marked. 5. The Tribunal on assessment of the material on record, awarded total compensation of Rs.7,86,000/- with interest at the rate of 9% p.a. from the date of petition till realization. While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.6,000/- p.m. and deducted 1/4th towards personal expenses of the deceased. The appellants not being satisfied with the compensation awarded by the Tribunal are before this Court in this appeal praying for enhancement of compensation. 6. Heard the learned counsels for the appellant and the respondents and perused the material on record. 7. The learned counsel for the appellant would submit that the income assessed by the Tribunal at Rs.6,000/- p.m. is on the lower side and prays for enhancing the same. It is his submission that the deceased was doing agricultural work, earning Rs.25,000/- p.m. The Tribunal ignoring the evidence of PW.1 and Ex.P.8 Patta passbook assessed the notional income at Rs.6,000/- p.m. erroneously. It is his submission that the deceased was doing agricultural work, earning Rs.25,000/- p.m. The Tribunal ignoring the evidence of PW.1 and Ex.P.8 Patta passbook assessed the notional income at Rs.6,000/- p.m. erroneously. Further, he submits that the Tribunal failed to award compensation on the head of future prospects which the claimants would be entitled to at 25% of the assessed income. Thus, he prays for enhancement of compensation. 8. Per contra, the learned counsel for the respondent would submit that the compensation awarded by the Tribunal is just and proper which needs no interference. Further, he submits that the claimants No.2 to 4 are major sons of the deceased and as such, the deduction towards personal expenses ought to have been taken at 1/3rd by the Tribunal and taking 1/4th deduction by the Tribunal is wholly erroneous. Thus, he pays for taking the deduction at 1/3rd towards personal expenses. 9. On hearing the learned counsels for the parties and on perusal of the material on record, the following points would arise for consideration: 1. Whether the income assessed by the Tribunal at Rs.6,000/- p.m. is proper and correct? 2. Whether the claimants would be entitled for future prospects at the rate of 25% of the assessed income? 3. Whether the Tribunal is justified in taking 1/4th deduction towards personal expenses of the deceased? 10. The answer to the above points No.1 and 3 would be in the negative and point No.2 in the affirmative for the following reasons: 11. The accident is of the year 2014. The income assessed by the Tribunal at Rs.6,000/- is on the lower side. The claimants stated that the deceased was doing agricultural work and was earning Rs.25,000/- p.m. but no document is produced to establish the income of the deceased. The claimants have placed on record Ex.P.8 Patta passbook of the deceased which would indicate the land possessed by the deceased, but would not indicate the income. In that circumstances, the Tribunal assessed the notional income at Rs.6,000/- which is on the lower side. This Court and Lok-Adalat while settling the accident claims of the year 2014 in the absence of any material to establish the income would normally assess the notional income at Rs.7,500/-. In that circumstances, the Tribunal assessed the notional income at Rs.6,000/- which is on the lower side. This Court and Lok-Adalat while settling the accident claims of the year 2014 in the absence of any material to establish the income would normally assess the notional income at Rs.7,500/-. In the instant case also, in the absence of any cogent material to establish the income of the deceased, it would be appropriate to take the notional income at Rs.7,500/- p.m. The Tribunal failed to award any compensation on the head of future prospects. The deceased was aged 45 years. 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 claimant would be entitled for adding 25% of the assessed income towards future prospects wherever the deceased was aged between 40-50 years. In the instant case, the deceased was aged 45 years. As such, the claimants would be entitled for adding 25% of the assessed income towards future prospects. The Tribunal committed an error in taking 1/4th deduction towards personal expenses of the deceased. The wife was the only dependant and the claimants No.2 to 4 are major sons. Wherever wife is the only dependant, as per the decision of the Hon'ble Apex Court in the case of Sarla Verma and Others vs. Delhi Transport Corporation and Another, (2009) AIR SC 3104 , the deduction would be 1/3rd towards personal expenses of the deceased. Hence, it would be appropriate to take 1/3rd deduction towards personal expenses of the deceased. Thus, the claimants would be entitled for the modified compensation as follows: Towards loss of dependency including future prospects (7,500+1,875 (25% of 7,500) =9,375 9,375-3,125 (1/3rd of 9,375) =6,250 6,250x12x14=10,50,000/-) :Rs. 10,50,000 Towards conventional heads : Rs. 77,000 Total : Rs. 11,27,000 12. Thus, the claimant No.1 would be entitled for total compensation of Rs.11,27,000/- as against Rs.7,86,000/- awarded by the Tribunal with interest at the rate of 9% p.a. from the date of petition till realization. Since the claimants No.2 to 4 are major sons, they are not entitled for any compensation. Accordingly, the appeal is allowed in part. 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 a certified copy of this judgment. Since the claimants No.2 to 4 are major sons, they are not entitled for any compensation. Accordingly, the appeal is allowed in part. 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 a certified copy of this judgment. It is made clear that the appellant No.1/claimant shall not be entitled for any interest for the delayed period in filing this appeal on the enhanced compensation. Draw the modified award accordingly.