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2020 DIGILAW 1149 (KAR)

New India Assurance Company Limited v. Kaligowda

2020-06-19

K.NATARAJAN

body2020
JUDGMENT K. Natarajan, J. - This appeal is filed by the New India Assurance Company Limited (hereinafter referred to as 'insurer') being aggrieved by the judgment and award passed by the Motor Accident Claims Tribunal, Kollegal (hereinafter referred to as 'Tribunal') in MVC No.285/2010, dated 03.03.2012. 2. Heard the arguments of learned counsel for the appellant as well as learned counsel for respondent Nos.1 and 4. The other respondents served absent. 3. The status of the parties before the Tribunal is retained for the sake of convenience. 4. The claimants have filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'M.V. Act') for claiming compensation of Rs.12,20,000/- with interest at 18% per annum, inter alia contending that on 27.08.2010 at 9.30 a.m., the wife of petitioner No.1 namely Rajamma while tethering cattles by driving the cattles on the left side of the road, at that time a Maruthi Omni car bearing Registration No. CAU 8266 driven by its driver in a rash and negligent manner and dashed against Rajamma, as a result she sustained injuries and succumbed to the injuries. Petitioner No.1 is the husband and petitioner No.2 is the deceased son, petitioner Nos.3 and 4 were also daughter and son claimed the compensation on various heads. 5. Pursuant to the notice, the owner of the offending vehicle placed ex-parte. Respondent No.2-insurer filed objection by denying all the averments made in the claim petition as false and taken the contention that the driver of the offending vehicle had no valid driving licence. Therefore, there cannot be any liability on the insurer, hence, prayed for dismissing the petition. 6. Based upon the pleading, the Tribunal has framed the following issues: "i) Whether the petitioners prove that the accident in question occurred on 27-8-2010 at about 9.30 a.m. on account of rash and negligent driving of the driver of the Maruthi Omni bearing Regn. No.CAU 8266 near Munina Kere, Ajjipura Hanur road, Ajjipura and caused the death of Rajamma? ii) Whether the respondents prove that they are not liable to pay compensation for the reasons stated in the objection statement? iii) Whether the petitioners are entitled to compensation? If so, what is the quantum of compensation they are entitled to and from whom? iv) What Order or award?" 7. ii) Whether the respondents prove that they are not liable to pay compensation for the reasons stated in the objection statement? iii) Whether the petitioners are entitled to compensation? If so, what is the quantum of compensation they are entitled to and from whom? iv) What Order or award?" 7. The claimants to prove their case, petitioner No.1 examined himself as PW.1 and got marked six documents, the respondents not led any evidence. After considering the evidence on record, the Tribunal has awarded Rs.6,65,000/- with 6% interest per annum. Assailing the same, the insurer preferred this appeal. 8. Learned counsel for the Insurance Company has contended that the judgment and computation of income and deduction towards personal expenditure by the Tribunal was not correct. The age of the deceased was 47 years and though the claimants themselves have stated that the income of the deceased was Rs.70/- to Rs.80/- per day, but the Tribunal has considered Rs.5,000/- per month without any basis and petitioner No.1-her husband cannot be considered as dependant on his wife. The deceased-petitioner No.2-Pachamallu is married having a wife and a child (they are arrayed in this appeal as respondent No.2(a and b). The married son cannot be considered as a dependant. Petitioner Nos.3 and 4 were also major children. Therefore, deducting 1/4th of the income towards the personal expenditure of the deceased is against the principles laid down by the Hon'ble Supreme Court in the cases of Sarla Verma and Others vs. Delhi Transport Corporation Limited and Another, (2009) 6 SCC 121 and National Insurance Company Limited vs. Pranay Sethi and Others, (2017) 16 SCC 680 . Therefore, prayed for reduction of the amount. 9. Per contra, the learned counsel for respondent Nos.1 and 4 has supported the award passed by the Tribunal. However, fairly admits that claimant Nos.2 to 4 are the major children, but he has contended that petitioner No.4 was unmarried son and also unemployed. But merely, the children are major, that itself is not a ground to say that they were not dependant on their mother (Rajamma). Hence, prayed for dismissing the appeal. 10. Upon hearing the arguments and on perusal of the records, the death of Rajamma in the accident is not in dispute. But merely, the children are major, that itself is not a ground to say that they were not dependant on their mother (Rajamma). Hence, prayed for dismissing the appeal. 10. Upon hearing the arguments and on perusal of the records, the death of Rajamma in the accident is not in dispute. Claimant No.1 who is the husband, claimant No.2 is the married son having wife and child, (petitioner No.2 died during the pendency of the petition and his legal representatives are brought on record) claimant No.3 is a married daughter and claimant No.4 is unmarried son. Merely, they are all major children, that itself is not a ground to say that they were not dependant on their mother. Further, the deceased-petitioner No.2 was married son and petitioner No.4 was unmarried son. The Hon'ble Supreme Court in a recent judgment in the case of National Insurance Company Limited vs. Birender and others in Civil Appeal Nos.242-243 of 2020, dated 13.01.2020 has held that the claimants were working as agricultural labourers on contract basis and were earning meager income between Rs.1,00,000/- to Rs.1,50,000/- per annum, they were largely dependant on the earning of their mother. Therefore, except married daughter, remaining legal heirs cannot be said to be not dependant on the deceased- Rajamma. Therefore, as per the principles laid down by the Hon'ble Supreme Court in the case of Sarla Verma stated supra, the dependants cannot be considered as four persons. By excluding the married daughter, the dependants would be three persons. 11. Therefore, deduction towards the loss of dependency would be 1/3rd of the income, but not 1/4th as deducted by the Tribunal. 12. As regards to the income of the deceased, the Tribunal has considered Rs.5,000/- per month, but the claimants have stated in the petition that the deceased was earning Rs.70/- to Rs.80/- per day. However, the Tribunal by considering the background of the family and by relying upon the decision of the judgment of the Hon'ble Supreme Court reported in 2010 ACJ 2161 , has considered the income of the deceased at Rs.5,000/- p.m., which do not call for any interference. If 1/3rd of Rs.5,000/- is deducted, it would be Rs.1,667/-, which comes to Rs.3,333/-. The same is multiplied by 12 and further multiplier 14 comes to Rs.5,59,944/-. This would be the loss of dependency and the same is rounded off to Rs.5,60,000/-. If 1/3rd of Rs.5,000/- is deducted, it would be Rs.1,667/-, which comes to Rs.3,333/-. The same is multiplied by 12 and further multiplier 14 comes to Rs.5,59,944/-. This would be the loss of dependency and the same is rounded off to Rs.5,60,000/-. As per the principle laid down by the Hon'ble Supreme Court in the case of Pranay Sethi stated supra, the conventional amount of Rs.70,000/- is added (loss of spousal consortium, love and affection and funeral expenses), it comes to Rs.6,30,000/-. Therefore, the amount of compensation awarded by the Tribunal is required to be reduced from Rs.6,65,000/- to 6,30,000/-. Accordingly, I pass the following order: The appeal is allowed-in-part. The award passed by the Motor Accident Claims Tribunal, Kollegal, in MVC No.285/2010, dated 03.03.2012 is reduced to Rs.6,30,000/- with interest at 6% per annum from the date of the petition till realization. The amount in deposit shall be transmitted to the Tribunal, forthwith.