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2020 DIGILAW 1245 (KAR)

Jayaram H , @ Jayaramappa v. Venkateshappa

2020-06-26

M.NAGAPRASANNA

body2020
JUDGMENT M Nagaprasanna, J. - This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties. 2. 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 5.12.2013 passed by the II Additional Senior Civil Judge, Motor Accident Claims Tribunal, Kolar, in M.V.C. No.147/2011. 3. Parties will be referred to as per their ranking before the Claims Tribunal. 4. Facts giving rise to the filing of the appeal briefly stated are that on 12.5.2011 at about 8.45 a.m., the deceased was standing in front of her house on the footpath of Kolar Shapur Road at her village Yaranghatta in Kolar Taluk. At that time, a TATA Ace vehicle bearing registration No.KA-50-3161 which was being driven by its driver in a rash and negligent manner, came on the wrong side of the road and dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and was shifted to NIMHANS for treatment, where she succumbed to the injuries on 13.5.2011 at 4.30 p.m. 5. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 55 years at the time of accident and was employed as a coolie and was earning Rs.6,000/- p.m. The claimants claimed compensation to the tune of Rs.15.00 lakhs along with interest. The claimants contended that they were entirely depended upon the earnings of the deceased. 6. On service of notice, the 1st respondent failed to appear before the Tribunal and was placed ex-parte. The 2nd respondent appeared and filed statement of objections contending that the 1st respondent had entrusted the vehicle to a person, who did not have a valid and effective driving licence. The age, avocation and income of the deceased was denied. It was also contended that the compensation claimed was highly excessive and exorbitant. 7. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. 8. The claimants, in order to prove their case, examined claimant No.5 as P.W.1 and got exhibited 7 documents namely Ex.P1 to Ex.P.7. On behalf of the respondents, the respondents neither examined any witnesses nor produced documents. 9. 7. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. 8. The claimants, in order to prove their case, examined claimant No.5 as P.W.1 and got exhibited 7 documents namely Ex.P1 to Ex.P.7. On behalf of the respondents, the respondents neither examined any witnesses nor produced documents. 9. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the TATA Ace vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.73,000/- along with interest at the rate of 6% p.a. Being aggrieved, this appeal has been filed by the claimants for enhancement of compensation. 10. Learned counsel for the appellants submitted that the Tribunal has committed an error in taking the age of the deceased at 70 years as against the documentary evidence on record like Post Mortem report and FIR which showed the age of the deceased as 55 years. The learned Counsel would also contend that as the age of the deceased was taken as 70 years, the Tribunal arrived at a finding that the deceased had no income at all and held that the claimants were entitled to compensation on other conventional heads to the tune of Rs.73,000/-. 11. On the other hand, learned counsel for the respondent-Insurance Company while supporting the judgment passed by the Tribunal submitted that the judgment passed by the Tribunal is just and proper and does not call for any interference. 12. I have considered the submissions made by the learned counsel for the parties and have perused the record. The only issue that falls for my consideration is with regard to the quantum of compensation awarded by the Tribunal. 13. The Tribunal considered the age of the deceased at 70 years on the basis of the ration card which was not even produced either by the claimants or the insurance company. On a statement made by the insurance company in the statement of objections, the Tribunal holds that the age of the deceased was 70 years as against the Post Mortem report (Ex.P.6), which discloses the age of the deceased at 55 years. On a statement made by the insurance company in the statement of objections, the Tribunal holds that the age of the deceased was 70 years as against the Post Mortem report (Ex.P.6), which discloses the age of the deceased at 55 years. The evidence of P.W.1 also indicates that the age of his mother was 55 years at the time of the incident and sustained this statement even in his cross examination. Hence, there was no warrant for the Tribunal to consider the age of the deceased at 70 years. Hence, I hold that the age of the deceased was 55 years at the time of the accident. 14. Admittedly, the claimants have not produced any 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 2011, the notional income has to be taken at Rs.6,500/- p.m. To the aforesaid amount, 10% 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.7,150/-. Out of which, we deem it appropriate to deduct 1/5th towards personal expenses and therefore, the monthly dependency comes to Rs.5,720/-. Taking into account the age of the deceased which was 55 years at the time of accident, multiplier of 11 has to be adopted. The claimants are entitled to Rs.7,55,040/- on account of loss of dependency. In addition, the claimants are entitled to Rs.70,000/- towards as loss of funeral expenses and loss of love and affection in terms of Pranay Sethi's case (Supra). Thus, the claimants are entitled to total compensation of Rs.8,25,040/-. 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.