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2020 DIGILAW 1170 (KAR)

Suman v. Sanjay Nagesh Patankar

2020-06-22

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT V. Srishananda, J. - Claimants in MVC No.670/2011 on the file of the Presiding Officer, Fast Track Court-I, Chikodi have questioned the validity of the judgment and award dated 04.12.2012 in this appeal. 2. Germane facts for disposal of the appeal are as under: It is contended in the claim petition that on 12.02.2011 at about 8.30 p.m. near Danoli Forest Office, one Suhash was proceeding on his motorcycle bearing No.MH-07/M-2594 and at that juncture, one Tata Specio vehicle bearing No.KA-22/M-9299 came in a rash and negligent manner and dashed against the motorcycle, due to which Suhash sustained grievous injuries and succumbed to the injuries on the spot. It is further contended that he was indulged in agricultural work and was earning Rs.5,00,000/- per annum and was also doing milk vending business and was earning Rs.5,000/- per month. It is contended that the claimants were depending on his income and thus, they claimed compensation. On issuance of notice, the first respondent remained absent. The second respondent/insurance company appeared before the Tribunal and filed its written statement. In the written statement, the claim petition averments were denied in toto and it is contended that the accident did not occur on account of rash and negligent driving of Tata Specio vehicle but it occurred due to the rash and negligent riding of the motorcycle by its rider himself. It is further contended that there was another vehicle viz., Innova Car bearing No.GA-09/A-2863 involved in the accident and hence, there was contributory negligence since there were three vehicles involved in the accident. Based on the pleadings of the parties, the Tribunal raised the following issues: 1) Whether petitioners proves that on 13.2.2011 at 8.30 p.m., near Danoli Forest Office, while deceased Suhash was going on motorcycle bearing No.MH-07/M-2594 by the side of the road, Tata Specio bearing No.KA- 22/M-9299 of respondent No.1 came in high speed, rash and negligent manner and dashed to the motorcycle and he died due to the injuries sustained in the accident? 2) Whether they further proves that they are entitled for the compensation? 3) What order/award? In order to discharge the burden cast on the claimants, Smt. Suman/claimant No.1 got examined herself as P.W.1 and relied on the documentary evidence which were marked vide Exs.P.1 to P.12 on their behalf. 2) Whether they further proves that they are entitled for the compensation? 3) What order/award? In order to discharge the burden cast on the claimants, Smt. Suman/claimant No.1 got examined herself as P.W.1 and relied on the documentary evidence which were marked vide Exs.P.1 to P.12 on their behalf. On behalf of respondent/insurance company, respondent No.1 got examined as R.W.1 and relied on documentary evidence, which were marked vide Exs.R.1 to R.4. After hearing the learned counsel for parties and on cumulative consideration of the material on record, the Tribunal allowed the petition by awarding a sum of Rs. 6,88,000/- with interest @ 6% per annum from the date of petition till realization on following heads. Sl. No. Heads Amount in Rs. 1 Loss of dependency 6,48,000/- 2 Love and affection 10,000/- 3 Loss of estate 10,000/- 4 Loss of consortium 10,000/- 5 Funeral Expenses 5,000/- 6 Conveyance 5,000/- Total 6,88,000/- Further, the Tribunal attributed 25% of contributory negligence on the owner and insurer, 25% on the owner and insurer of Innova car and 50% on the owner and insurer of Tata Specio vehicle. 3. The appellants are before this court seeking enhancement of the compensation and challenging the saddling of liability @ 25% of the compensation on the deceased. 4. Learned counsel for the appellant vehemently contended that the adjudged compensation is on the lower side. Further it is submitted that the Tribunal ought to have assessed the monthly income of the deceased at Rs.6,000/- since the accident occurred in the year 2011. It is also their case that the Tribunal did not consider the grant of compensation towards future prospects as per the legal principles enunciated in National Insurance Company Ltd vs. Pranay Sethi and others, (2017) AIR SC 5157 and sought for enhancement of compensation. It is also submitted on behalf of the claimants that the Tribunal attributing 25% of contributory negligence on the deceased is erroneous and sought for allowing the appeal. It is further contended that the Tribunal has erred in not awarding any amount towards filial and parental consortium as per the legal principles enunciated in Magma General Insurance Co.Ltd vs. Nanu Ram and others, (2018) ACJ 2782 , and sought for enhancement of compensation. 5. Per contra, the learned counsel for the respondent/insurance company contends that the compensation awarded by the Tribunal is just and requires no interference. 5. Per contra, the learned counsel for the respondent/insurance company contends that the compensation awarded by the Tribunal is just and requires no interference. The learned counsel for the respondent/insurance company submits that having regard to the involvement of third vehicle viz., Innova Car bearing No.GA-09/A-2863, the award passed by the Tribunal holding that owner and insurer of the motorcycle and Innova Car are liable to pay 25% each of the adjudged compensation is just and proper and does not call for interference and sought for dismissal of the appeal. 6. In view of the rival contentions, the following points would arise for our consideration: i) Whether the appellants have made out a case for enhancement of compensation? ii) Whether the Tribunal attributing contributory negligence on the owner and insurer of motorcycle and the owner and insurer of Innova car at 25% each is correct? 7. We answer the Point No.(i) in affirmative and Point No.(ii) in partly affirmative for the following: REASONS 8. The learned counsel for the appellant vehemently contends that the Tribunal has erred in law in adjudging the monthly income of the deceased at Rs.4,500/- even though the claimants have stated that the deceased was having agricultural income of Rs.5,00,000/- per annum and was also earning Rs.5,000/- per month from doing milk vending business. There is no proof available to prove the said income. 9. The Tribunal in Para No.12 has considered that except marking Ex.P.11 and 12, Records of Rights there is no other document to establish that the deceased was earning Rs.5,00,000/- per annum from agricultural work and was earning Rs.5,000/- per month by doing milk vending business. In the absence of documentary evidence on record, the Tribunal assessed the income of the deceased at Rs.150/- per day and calculated the same for and amount Rs.4,500/- per month. 10. For accidental claims of the year 2011, this Court and the Lok Adalaths usually assess the income at Rs.6,000/- per month notionally, in the absence of any formal proof thereof. In the present case, we also deem it appropriate to assess the income at Rs.6,000/- per month in the absence of evidence on record with regard to the income of the deceased. 11. In the present case, we also deem it appropriate to assess the income at Rs.6,000/- per month in the absence of evidence on record with regard to the income of the deceased. 11. In the case of Pranay Sethi referred to supra, the Hon'ble Apex Court has held that persons aged below 40 years would be entitled for 40% of the assessed income towards future prospects. Hence, we deem it appropriate to add 40% of the assessed income towards future prospects in the present case also. After adding 40% of the assessed income, the monthly income of the deceased would become Rs.8,400/-. 12. The number of dependants being four, who are wife, children and mother of the deceased, the Tribunal deducting 1/4th of the income towards personal and living expenses of the deceased is just and proper. Accordingly, after deducting 1/4th of the income, it would come to Rs.6,300/- per month. 13. As per the decision of the Hon'ble Apex Court in Sarla Verma and Others vs. Delhi Transport Corporation and Another, (2009) AIR SC 3104 ) having regard to the age of the deceased, multiplier "16" applied by the Tribunal is correct. Accordingly, the claimants would be entitled to Rs.12,09,600/- (Rs.6,300 x 12 x 16 = Rs.12,09,600/-) towards loss of dependency including future prospects. 14. As per the principles enunciated in Pranay Sethi's case, the claimants are entitled to Rs.77,000/- on conventional heads. 15. Further, claimants 2 and 3 being minor children and claimant No.4 being the mother of the deceased are entitled to Rs.40,000/- each towards filial and parental consortium as per the decision of the Hon'ble Apex Court in Magma General Insurance Comapany's case. Accordingly, the claimants would be entitled for modified compensation of to Rs.13,99,600/- as under: 1. Loss of dependency including future prospects Rs.12,09,600/- 2. On conventional heads Rs.70,000/- 3. Towards filial and parental consortium Rs.1,20,000/- Total Rs.13,99,600/- 16. The Tribunal has held that the third vehicle Innova car bearing No.GA-09/A-2863 was also involved in the accident. Accordingly, the claimants would be entitled for modified compensation of to Rs.13,99,600/- as under: 1. Loss of dependency including future prospects Rs.12,09,600/- 2. On conventional heads Rs.70,000/- 3. Towards filial and parental consortium Rs.1,20,000/- Total Rs.13,99,600/- 16. The Tribunal has held that the third vehicle Innova car bearing No.GA-09/A-2863 was also involved in the accident. In the instant case , the investigating officer has filed charge-sheet against first respondent only but in Para No.13 of the impugned judgment, the Tribunal has discussed that there was Innova car involved in the accident and the claimants have not impleaded the owner and insurer of the motorcycle and Innova car in the case and saddled the liability on the owner and insurer of the motorcycle and the Innova car @ 25% each and saddled the liability on the insurance company of Tata Specio vehicle bearing No.KA-22/M-9299 to pay 50% of the compensation. 17. What prevented the claimants to implead the owner and insurer of the motorcycle and the innova car is not forthcoming from the case papers. Before this Court, the learned counsel for the appellant is unable to satisfy us as to why the owners and insurers of motorcycle and innova car were not impleaded in the court below. 18. The Tribunal, in the absence owner and insurer of Innova car made as party, as is rightly observed by the Tribunal itself, the Tribunal directing the claimants to recover 25% of the compensation amount from the owner and insurer of the Innova car bearing No.GA-09/A- 2863, in the considered opinion of this Court, cannot be countenanced. Further, as could be seen from Ex.P.4/charge-sheet, the investigating officer has chargesheeted only the driver of Tata Specio car bearing No.KA- 22/M-9299. Therefore, Tribunal attributing 25% of contributory negligence on the owner and insurer of Innova car is not proper and correct. At the most, the Tribunal could have attributed 25% of contributory negligence on the rider of the motorcycle (deceased) alone. 19. Therefore, we hold that there was contributory negligence attributable at 25% on the deceased and 75% on Tata Specio vehicle bearing No.KA-22/M-9299. Accordingly, we answer point No.(i) in the affirmative and Point No.(ii) in partly affirmative and proceed to pass the following: ORDER The appeal is allowed in part. 19. Therefore, we hold that there was contributory negligence attributable at 25% on the deceased and 75% on Tata Specio vehicle bearing No.KA-22/M-9299. Accordingly, we answer point No.(i) in the affirmative and Point No.(ii) in partly affirmative and proceed to pass the following: ORDER The appeal is allowed in part. Since there is contributory negligence attributed @ 25% on the deceased, out of the modified compensation of Rs.13,99,600/- the claimants would be entitled to 75% of the modified award i.e. Rs.10,49,700/- with interest @ 6% per annum from the date of petition till realization of entire amount. The respondent/insurer of Tata Specio vehicle bearing No.KA-22/M-9299 is directed to deposit 75% of the modified award with interest @ 6% per annum from the date of petition till realization. The order of apportionment and deposit ordered by the Tribunal would be in the same proportion. Draw the modified award accordingly.