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2020 DIGILAW 1268 (KAR)

Hajira v. Taranath

2020-06-29

ALOK ARADHE, 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 dated 2.1.2015 passed by the Principal Senior Civil Judge and A.C.J.M. and Additional Motor Accident Claims Tribunal, Puttur, in M.V.C. No.557/2012. 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 31.3.2010 at about 12.20 p.m., the deceased Abdul Hameed was traveling in an Ambassador Car bearing registration No.KA-21-8033 from B.C. Road towards Mangalore. At that time, a lorry bearing registration No.CNG-9586 which was being driven by its driver in a rash and negligent manner, came from the opposite side violating traffic rules and dashed against the car of the deceased on National Highway No.48. As a result of the aforesaid accident, the deceased sustained grievous injuries and was initially shifted to Fr. Mullers Medical College hospital and from there to Highland hospital, where he was an inpatient till 20.4.2010 and succumbed to the injuries on the said date. 5. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 40 years at the time of accident and was employed as a waiter in a hotel and was earning '.15,000/- p.m. He was the sole breadwinner of the family. The claimants claimed compensation to the tune of '.30,00,000/- along with interest. 6. On service of notice, the respondents appeared and filed their statement of objections. The 1st respondent denied the accident and stated that the driver of the offending lorry was not driving it in a rash and negligent manner. It was in fact the car in which the deceased was traveling was driving in a rash and negligent manner. The hospitalization, cost of hospitalization were all denied. The 3rd respondentinsurance company filed its statement of objections contending that the accident did not occur due to the rash and negligent manner driving of the lorry by its driver. But it was on account of rash and negligent driving of the driver of the car which met with the accident. The hospitalization, cost of hospitalization were all denied. The 3rd respondentinsurance company filed its statement of objections contending that the accident did not occur due to the rash and negligent manner driving of the lorry by its driver. But it was on account of rash and negligent driving of the driver of the car which met with the accident. It was also contended that the driver of the said lorry did not have a valid and effective driving licence as on the date of the accident. The age, avocation and income of the deceased was also denied. It was also contended that the compensation sought 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 three witnesses. Claimant No.1-wife of the deceased herself was examined as P.W.1 and two other witness as P.Ws.2 and 3 and some witnesses of Court Commissioner were also taken and three doctors were examined as C.Ws.1 to 3 (P.Ws.4 to 6) and marked 102 documents namely Ex.P.1 to Ex.P.102 and through the Court Commissioner, one document was marked as Ex.C.1. On behalf of the respondents, the respondent Nos.1 to 3 though filed objections to petition, did into adduce any evidence, but marked one document insurance policy as Ex.R.1. 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 offending 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 '.12,25,000/- 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 grossly erred in taking the monthly income of the deceased at Rs.5,000/- per month as the claimants had produced Exs.P.13 and 14 which were the salary certificate of the deceased showing that the deceased was earning Rs.6,000/- per month at two hotels as a waiter. Learned Counsel for the appellants would further contend that the compensation awarded on all the other conventional heads are on the lower side. 11. Learned Counsel for the appellants would further contend that the compensation awarded on all the other conventional heads are on the lower side. 11. On the other hand, learned counsel for the respondents would support the judgment and award passed by the Tribunal and submitted that the judgment passed of the Tribunal is just and proper and does not call for any interference. 12. We have considered the submissions made by the learned counsel for the parties and have perused the record. The only issue that falls for our consideration is with regard to the quantum of compensation awarded by the Tribunal. 13. The claimants have produced Exs.P.13 and 14 as salary certificates of the deceased who was working in two places one as a waiter at National Restaurant (Ex.P.13) and as a sales man in Lakshmi Ganesh Enterprises (Ex.P.14). P.W.3, who is the representative of the National Restaurant deposes that the deceased used to supply things required for the hotel every day and he had issued a salary certificate as per Ex.P.13. In the cross examination also, P.W.3 holds that he was paying a salary of Rs.6,000/-. There is nobody examined to prove Ex.P.14 that the deceased was working as a sales man in Lakshmi Ganesh enterprises. Thus, the evidence put before the Tribunal by the claimants was that the salary of the deceased was Rs.6,000/- per month. The Tribunal though quotes the evidence of P.W.3, erroneously considers the monthly salary of the deceased at Rs.5,000/- per month. Hence, the salary of the deceased is to be taken at Rs.6,000/- per month. To this, 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 '.7,500/-. Out of which, we deem it appropriate to deduct 1/5th towards personal expenses and therefore, the monthly dependency comes to '.6,000/-. Taking into account the age of the deceased which was 40 years at the time of accident, multiplier of 15 has to be adopted. The claimants are entitled to '.10,80,000/- on account of loss of dependency. 14. In view of the law laid down by the Supreme Court in ' MAGMA GENERAL INSURANCE CO. LTD. Vs. Taking into account the age of the deceased which was 40 years at the time of accident, multiplier of 15 has to be adopted. The claimants are entitled to '.10,80,000/- on account of loss of dependency. 14. 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 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 '.2,40,000/-. In addition, the claimants are entitled to '.30,000/- on account of loss of estate and funeral expenses. The compensation awarded on the head of medical bills/bills at '.4,22,586/- is just and proper and does not call for interference. 15. Thus, in all, the claimants are entitled to total compensation of '.17,72,586/-. 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.