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2020 DIGILAW 1191 (KAR)

Yashodha H /o Late Hemachandra B v. Sharath Kumar Acharya

2020-06-23

ALOK ARADHE, M.NAGAPRASANNA

body2020
JUDGMENT M Nagaprasanna, J. - This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimants being aggrieved by the judgment and award dated 24.10.2016 passed by the Motor Accident Claims Tribunal - IV, D.K., Mangaluru in M.V.C.No.1043/2015. 2. Facts giving rise to the filing of the appeal briefly stated are that, on 03.05.2015, the deceased Hemachandra was traveling as a pillion rider on the motorcycle bearing registration No.KA-19-ED-9562 from Lalbagh to Urwa side. One Ranjith kumar was riding the motorcycle and the claimants contended that he was riding the vehicle in a rash and negligent manner. At about 10.30 p.m., near Chikitha Junction on Urwa Marigudi sulthan Batheri Road, while trying to avoid a street dog lost control over the motorcycle. The deceased fell on the ground and sustained grievous injuries and he was thereafter shifted to KMC hospital, inspite of best treatment, he succumbed to the injuries on the next day at about 8.40 p.m. 3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 48 years at the time of accident, he was employed as a Goldsmith and earning Rs.24,000/- p.m. and doing jewellery work. On the loss of the deceased, who was the sole bread winner, the claimants claimed compensation to the tune of Rs.30,00,000/- along with interest at 9% p.a. 4. On service of notice, the first respondent remained absent and was placed exparte. The second respondent insurance company filed its statement of objections denying the relationship of the claimants with the deceased, the place and manner of the accident. Even the rash and negligent driving of the motorcycle was denied. According to the insurance company, it was a case of contributory negligence. It was further contended that there was gross violation of policy conditions as the driver of the motorcycle did not possess valid driving license. 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants in order to prove their case, examined claimant No.1 examined as PW-1 and three witness as PWs-2 to 4 and got exhibited documents namely Ex.P1 to Ex.P17. The respondent No.2 examined the clerk of KMC Hospital as RW.1 and got exhibited three documents as Exs.R.1 to R.3. The claimants in order to prove their case, examined claimant No.1 examined as PW-1 and three witness as PWs-2 to 4 and got exhibited documents namely Ex.P1 to Ex.P17. The respondent No.2 examined the clerk of KMC Hospital as RW.1 and got exhibited three documents as Exs.R.1 to R.3. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the motorcycle and awarded compensation in a sum of Rs.8,45,000/- holding that the owner of the motorcycle and the insurer are jointly and severally liable to pay compensation. The claimants being aggrieved by the quantum of compensation have preferred the instant appeal. 6. Learned counsel for the appellants would contend that though the income of the deceased was Rs.24,000/- p.m. and evidence to that effect has been produced before the Tribunal, despite that, the Tribunal took only Rs.7,000/- p.m. and awarded meager compensation on loss of dependency and all other heads. 7. On the other hand, learned counsel for the insurance company would contend that the compensation awarded by the Tribunal is just and proper. 8. We have considered the submissions made by Sri G. Ravishankar Shastry, learned counsel for the appellants and Sri C.M.Poonacha, learned counsel for respondent No.2 and have perused the record. 9. The only issue that falls for our consideration is with regard to the quantum of compensation awarded to the claimants. 10. The claimants have submitted the salary certificate as per Ex.P.8 to claim the income of the deceased as Rs.24,000/- p.m. and to substantiate the same, they have also produced the statement of accounts of Vijaya Bank and Vishwakarma Sahakara Bank as per Exs.P.11 and P.12 and have also examined PW.2 under whom the claimants contended that the deceased was working. The evidence of PW.2 does not confirm the fact that the deceased was given a salary of Rs.24,000/- p.m. Exs.P.11 and P.12, the statement of accounts maintained by the deceased also does not disclose an amount of Rs.24,000/- being deposited on any month. PW.2 in his crossexamination states that he was giving Rs.12,000/- p.m. to one of the workers for a work of Rs.50,000/- when entrusted to them. No evidence was led with regard to the monthly income paid to the deceased. PW.2 in his crossexamination states that he was giving Rs.12,000/- p.m. to one of the workers for a work of Rs.50,000/- when entrusted to them. No evidence was led with regard to the monthly income paid to the deceased. It is the admission of PW.2 that he has not maintained any document in respect of salary paid to the deceased or other workers. It is also admitted by him that though there are three workers under him, he had not maintained any documents with regard to the shop where the deceased was working or even the fact that the deceased was working under him as Goldsmith. 11. Looking at the aforementioned deposition of PW.2 and the documents placed in evidence, it is clear that there is no evidence with regard to the income of the deceased. Therefore, the notional income has to be fixed as per the guidelines issued by the High Court Legal Services Committee. Since the accident has taken place in the year 2015, the notional income has to be taken at Rs.9,000/- p.m. To the aforesaid amount, 25% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in ' NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS, (2017) AIR SC 5157 . Thus, the monthly income comes to Rs.11,250/-. Out of which, we deem it appropriate to deduct 1/3rd towards personal expenses and therefore, the monthly dependency comes to Rs.7,500/-. Taking into account the age of the deceased which was 48 years at the time of accident, multiplier of 13' has to be adopted. The claimants are entitled to Rs.11,70,000/- on account of loss of dependency. 12. In view of the law laid down by the Supreme Court in ' MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM, (2018) ACJ 2782 , the claimants are entitled to Rs.40,000/- each as loss of consortium and loss of love and affection. Thus, the total amount of compensation under this head is assessed at Rs.1,20,000/- . In addition, the claimants are entitled to Rs.30,000/- on account of loss of estate and funeral expenses. 13. Thus, the claimants are entitled to total compensation of Rs.13,20,000/- . Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. In addition, the claimants are entitled to Rs.30,000/- on account of loss of estate and funeral expenses. 13. Thus, the claimants are entitled to total compensation of Rs.13,20,000/- . Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. To the aforesaid extent, the judgment of the Claims Tribunal is modified. Accordingly, the appeal is disposed of.