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2020 DIGILAW 1303 (KAR)

Sunil Sumitra Sase v. Vijay Jaysingh Patil

2020-07-02

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT S.G.Pandit, J. - The claimants as well as the New India Assurance Company Limited the insurer of the offending vehicle are before this Court in these appeals against the judgment and award dated 21.02.2015 passed in M.V.C. No.2357 of 2012 on the file of the Senior Civil Judge & Additional Motor Accident Claims Tribunal, Chikodi, (for short 'the Tribunal'). While M.F.A. No.103100/2015 is by the claimants seeking enhancement of the compensation, M.F.A. No.102447/2015 is by the New India Assurance Company Limited questioning saddling of the liability to pay the compensation and the quantum of compensation. 2. The claimants are the parents of the deceased Ritwij. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation for the death of one Ritwij in a road traffic accident. It is stated that on 04.07.2011, when Ritwij was proceeding on his motorcycle bearing No.KA-23/W5 3112, a TATA Dumper vehicle bearing No.MH-42/B-7094 came in a rash and negligent manner and dashed to the motorcycle on which Ritwij was proceeding, due to which Ritwij sustained grievous injuries and succumbed to the injuries at the Government Hospital. It is stated that the deceased was studying VII Semester, Mechanical Engineering in Rajarambapu Institute of Technology, Islampur. He was aged 23 years as on the date of the accident. It is stated that after the graduation, the deceased would have got a good job in an engineering company and would have earned a minimum of Rs.25,000/- per month. 3. On issuance of notice, respondent Nos.1 to 4 appeared before the Tribunal. But, only respondent Nos.1 and 3 filed their written statements. The respondents, in their written statements, denied the occurrence of the accident. Respondent No.4-National Insurance Company Limited contended that the accident occurred solely due to the rash and negligent driving of TATA Dumper vehicle and not due to fault of the deceased Ritwij. 4. In support of their claim, claimant No.1 - father of the deceased got examined himself as P.W.1 and marked Exs.P.1 to P.10(a). On behalf of the respondents, R.W.1 was examined apart from marking Exs.R.1 to R.6. The Tribunal, based on the material on record, awarded a total compensation of Rs.12,73,000/- with interest at the rate of 9% per annum under the following heads: 1. Loss of dependency Rs.11,88,000/- 2. Expenses towards transportation of dead body and funeral and obsequies Rs.15,000/- 3. On behalf of the respondents, R.W.1 was examined apart from marking Exs.R.1 to R.6. The Tribunal, based on the material on record, awarded a total compensation of Rs.12,73,000/- with interest at the rate of 9% per annum under the following heads: 1. Loss of dependency Rs.11,88,000/- 2. Expenses towards transportation of dead body and funeral and obsequies Rs.15,000/- 3. Love and Affection Rs.50,000/- 4. Loss of Estate Rs.20,000/- Total Rs.12,73,000 While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.18,000/- per annum, deducted 50% of the income towards personal expenses of the deceased and applied multiplier 11' taking the age of the younger parent. 5. The claimants not being satisfied with the quantum of compensation are before this Court praying for enhancement of the compensation, whereas the insurer is before this Court questioning the quantum of compensation awarded by the Tribunal as well as the saddling of the liability on the appellant-insurance company. 6. Heard the learned counsel for the claimants and the learned counsel for the appellant-insurer. Perused the Trial Court records. 7. Learned counsel for the appellant-insurer submits that the accident occurred solely due to negligence of the deceased himself and as such the Tribunal is not justified in saddling the liability on the insurer. The learned counsel further submits that the driver of the offending vehicle against whom charge sheet was filed has been acquitted and as such, the Tribunal could not have saddled the liability on the appellantinsurer. The learned counsel inviting the attention of this Court to the evidence of R.W.1, states that R.W.1 has clearly deposed that the deceased lost control of the motor cycle and fell to the back of left side tyre of TATA Dumper. The learned counsel with regard to the quantum of compensation awarded by the Tribunal submits that the deceased was a student of VII Semester B.E. in Mechanical Engineering and as such, the assessment of income at the rate of Rs.18,000/- per month is on the higher side. It is his submission that the notional income is to be assessed as would be done by this Court and Lok Adalats while settling the accidental claims of the year 2010. Thus, he prays for allowing the appeal (M.F.A. No.102447/2015). 8. It is his submission that the notional income is to be assessed as would be done by this Court and Lok Adalats while settling the accidental claims of the year 2010. Thus, he prays for allowing the appeal (M.F.A. No.102447/2015). 8. Per contra, learned counsel for the claimants submits that the deceased was aged 23 years and he was a student of VII Semester B.E. in Mechanical Engineering. He submits that after the completion of his B.E. course, the deceased would have got a good job in a company and would have earned more than Rs.25,000/- per month and the income assessed by the Tribunal at Rs.18,000/- per month is on the lower side. Hence, he prayed for enhancing the monthly income assessed by the Tribunal. Further, the learned counsel submits that the Tribunal failed to award any compensation towards future prospects. Since the deceased was aged 23 years as on the date of the accident, the claimants are entitled to addition of 40% of the assessed income towards future prospects. It is also his submission that the multiplier adopted by the Tribunal is not proper. The Tribunal has adopted the multiplier 11' considering the age of the younger parent which is not the correct position of law. As on this day, the correct position of law is that while adopting the multiplier the age of the deceased will have to be taken and, in the instant case, if the age of the deceased is taken into consideration, the proper multiplier would be 18'. Thus, he prays for allowing the appeal (M.F.A. No.103100/2015). 9. On hearing the learned counsels for the parties and on perusal of the trial Court records, following points would arise for consideration: i) Whether the Tribunal is justified in saddling the entire liability on the appellant-New India Assurance Company Limited? ii) Whether the income assessed by the Tribunal at Rs.18,000/- per month is proper and correct? iii) Whether the claimants are entitled for addition of 40% of the assessed income towards future prospects? iv) Whether the multiplier adopted by the Tribunal considering the age of younger parent is proper and correct? 10. The answer to point Nos.i) and iii) is in the affirmative and to point Nos.ii) and iv) is in the negative for the following reasons: Point No.i): The accident is of the year 2010. iv) Whether the multiplier adopted by the Tribunal considering the age of younger parent is proper and correct? 10. The answer to point Nos.i) and iii) is in the affirmative and to point Nos.ii) and iv) is in the negative for the following reasons: Point No.i): The accident is of the year 2010. It is stated that the deceased was proceeding on his motor cycle bearing No.KA-23/W-3112 and at that time, a TATA dumper vehicle bearing No.MH-42 B-7094 came in a rash and negligent manner and dashed to the motor cycle of the deceased from hind side, due to which the deceased fell down and sustained grievous injuries and succumbed to the same. The police registered a case against respondent No.3, the driver of the offending vehicle and also filed charge sheet against him. The contention of the appellant-insurer is that the accident occurred solely due to the negligence of the rider of the motorcycle i.e., the deceased himself. At the first instance, it is to be noted that the appellant-New India Assurance Co., Ltd., has not filed any objection to the claim petition. There is no material on record to substantiate the said contention. Respondent No.1 is the owner of the offending vehicle. Even though R.W.1 is not an eye witness to the accident, in his evidence, he says that the alleged accident took place due to the negligence of the deceased, who lost control of the bike and fell down to the left back side tyre, cannot be taken note of, since he is an interested witness and moreover, no sketch is placed on record which would have correctly shown the spot and occurrence of the accident. The driver of the offending vehicle TATA Dumper is not examined. He would have been the best person to narrate the occurrence of the accident. Merely on the statement that driver of TATA Dumper is acquitted by placing a copy of judgment, it cannot be concluded that deceased was responsible for the accident. Further much importance cannot be given to a judgment in a criminal case where strict rules of evidence is followed and whereas before the Tribunal the claimants have to establish their case on preponderance of probabilities and the standard of proof beyond reasonable doubt is not at all applicable. Further much importance cannot be given to a judgment in a criminal case where strict rules of evidence is followed and whereas before the Tribunal the claimants have to establish their case on preponderance of probabilities and the standard of proof beyond reasonable doubt is not at all applicable. In the absence of any material to substantiate the contention of the insurer that the accident had taken place solely due to the negligence of the deceased, the said contention is rejected. Point No.ii): The Tribunal assessed the income of the deceased at Rs.18,000/- per month. The accident is of the year 2010. Admittedly, the deceased was a student of VII Semester B.E. in Mechanical Engineering. This Court has consistently assessed the monthly notional income at Rs.15,000/- wherever the deceased was an engineering student and who was on the verge of completing his engineering course. The contention of the insurer that notional income of the year 2010 taken by this Court and Lok Adalat is to be taken, is liable to be rejected for the reason that, the notional income assessed while settling the claims before Lok Adalat is in respect of unskilled labourers in the absence of any material on record. But, in the instant case, materials are on record to indicate that the deceased was studying VII Semester Mechanical Engineering and if he were to complete B.E. degree he would have become a technically qualified Engineer. In those circumstances, taking note of the qualification and facts and circumstance of each case notional income will have to be assessed. In the present case, on reappreciation of the entire material on record, we feel that the income assessed by the Tribunal at Rs.18,000/- is on the higher side. Hence, we deem it appropriate to assess the notional income of the deceased at Rs.15,000/- per month. Point No.iii): The deceased was aged 23 years as on the date of the accident. The Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, (2017) ACJ 2700 has held that the claimants would be entitled for addition of 40% of the assessed income towards future prospects where the deceased was below the age of 40 years. In view of the said decision, the claimants are entitled to addition of 40% of the assessed income towards future prospects. Pranay Sethi, (2017) ACJ 2700 has held that the claimants would be entitled for addition of 40% of the assessed income towards future prospects where the deceased was below the age of 40 years. In view of the said decision, the claimants are entitled to addition of 40% of the assessed income towards future prospects. Point No.iv): The multiplier 11' applied by the Tribunal by considering the age of the younger parent is not proper. The legal position as on this day is that, in a death case, while applying the multiplier the age of the deceased will have to be taken. As such, in the instant case, the correct multiplier to be taken would be 18. 11. The deceased was unmarried and as such deduction of 50% of the income of the deceased towards his personal and living expenses is proper and correct. 12. Thus, on taking the notional income of the deceased at Rs.15,000/- per month, adding 40% of the assessed income towards future prospects, deducting 50% towards personal and living expenses of the deceased and applying multiplier 18', the claimants would be entitled to a sum of Rs.22,68,000/- (Rs.15,000 + 40% i.e. Rs.6,000 = Rs.21,000 2 = Rs.10,500/- x 12 x 18) on the head of 'loss of dependency' (including future prospects). 13. On reassessment, the claimants would be entitled for the following modified compensation: 1. Loss of dependency (including future prospects) Rs. 22,68,000/- 2. Conventional heads Rs. 50,000/- Total Rs. 23,18,000/- Thus, in all, the claimants would be entitled to a total compensation of Rs.23,18,000/-, as against Rs.12,73,000/- awarded by the Tribunal, along with interest at 9% per annum from the date of petition till the date of realization. 14. Accordingly, both the appeals are allowed in part. The judgment and award dated 21.02.2015 passed in M.V.C. No.2357/2012 passed by the Tribunal is hereby modified. The claimants are entitled to a total compensation of Rs.23,18,000/-, as against Rs.12,73,000/- awarded by the Tribunal, along with interest at 9% per annum from the date of petition till the date of realization. The apportionment and deposit of the compensation among the claimants shall be in the proportion as ordered by the Tribunal. The amount in deposit before this Court be transmitted to the concerned Tribunal.