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2020 DIGILAW 1339 (KAR)

Archana v. Uday Arjun Hongekar

2020-07-06

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT S.G.Pandit, J. - The claimants, who are the wife, children and mother of the deceased Vinayak Yadav Genji, are before this Court in this appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 05.04.2019 passed in M.V.C. No.2237 of 2018 on the file of the IV Additional District Judge and Motor Accident Claims Tribunal-V, Belagavi (for short 'the Tribunal'). 2. The claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') seeking compensation for the accidental death of one Vinayak Yadav Genji in a road traffic accident that occurred on 25.10.2018 involving car bearing No.KA-22/N-4970. On issuance of notice, respondent Nos.1 and 2 appeared and filed their objections. The claimants, in support of their case, examined claimant No.1 as P.W.1, apart from marking the documents as Exs.P.1 to P.12. The respondent No.2-insurance company marked insurance policy as Ex.R.1. The Tribunal, on analyzing the entire material placed before it, awarded a total compensation of Rs.21,40,000/- with interest at the rate of 6% per annum, from the date of petition till realization, as under: S. No. Heads Amount 1 Loss of dependency 20,70,000/- 2 Loss of estate 15,000/- 3 Loss of consortium 40,000/- 4 Funeral expenses 15,000/- Total Rs.21,40,000/- While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.10,000/- per month, added 40% of the assessed income towards future prospects, deducted 1/4th towards personal expenses of the deceased and applied multiplier of 15'. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court praying for enhancement of the compensation. 3. Heard the learned counsel for the appellant and the learned counsel for the respondent No.2- insurance company. Perused the trial Court records. 4. The learned counsel for the appellants would submit that the accident is of the year 2018 and the income of the deceased assessed by the Tribunal at Rs.10,000/- per month is on the lower side. He further submits that the deceased was working as a Lathe Machine Operator earning Rs.18,000/- per month. The claimants had produced Ex.P.7-certificate which indicates that the deceased was earning Rs.15,000/- per month. But, the Tribunal ignoring the oral evidence of P.W.1 and the certificate at Ex.P.7 assessed the income of the deceased at Rs.10,000/- per month which needs to be enhanced. The claimants had produced Ex.P.7-certificate which indicates that the deceased was earning Rs.15,000/- per month. But, the Tribunal ignoring the oral evidence of P.W.1 and the certificate at Ex.P.7 assessed the income of the deceased at Rs.10,000/- per month which needs to be enhanced. Further, the learned counsel for the appellants would submit that the mother of the deceased and the minor children of the deceased would be entitled for loss of filial consortium and parental consortium as held by the Apex Court in the case of Magma General Insurance Co. Limited v. Nanu Ram and Others, (2018) ACJ 2782 . 5. Per contra, the learned counsel for respondent No.2-insurance company would submit that the compensation awarded by the Tribunal is just and proper which needs no interference. He further submits that even though the claimants have placed Ex.P.7 the same is not proved in accordance with law. Hence, the income of the deceased assessed by the Tribunal at Rs.10,000/- per month is just and proper which needs no interference. Thus, he prays for dismissal of the appeal. 6. Having heard the learned counsels for the parties and on perusal of the records, the following points would arise for our consideration: i) Whether the income of the deceased assessed by the Tribunal at Rs.10,000/- per month is proper and correct? ii) Whether the claimants would be entitled for enhancement of the compensation? 7. The answer to the points would be in the negative and affirmative respectively, for the following reasons: a) The accident that had taken place on 25.10.2018 involving the motorcycle bearing registration No.KA-22/N-4970 and the accidental death of Vinayak Yadav Genji is not in dispute in this appeal. The claimants' appeal is for enhancement of the compensation. The claimants have stated that the deceased was working as a Lathe Machine Operator and was earning Rs.18,000/- per month. Ex.P.7-certificate is produced which would indicate that the deceased was earning Rs.15,000/- per month. But the same is not proved in accordance with law by examining the author of Ex.P.7. In the absence of any material to establish the income of the deceased, the Tribunal assessed the income, notionally, at Rs.10,000/- per month. However, the same is on the lower side. But the same is not proved in accordance with law by examining the author of Ex.P.7. In the absence of any material to establish the income of the deceased, the Tribunal assessed the income, notionally, at Rs.10,000/- per month. However, the same is on the lower side. This Court and the Lok Adalats, while settling the accidental claims of the year 2018, in the absence of any material to establish the income, would normally assess the notional income of a person at Rs.11,750/- per month. In the instant case also, we deem it appropriate to assess the notional income of the deceased at Rs.11,750/- per month in order to determine the compensation. b) The deceased was aged 37 years as on the date of the accident and the Tribunal has rightly added 40% of the assessed income towards the future prospects. Since the dependants are four in numbers, the Tribunal has rightly deducted 1/4th of the income towards personal and living expenses of the deceased. So also, the multiplier 15' applied by the Tribunal is also proper. Thus, on taking the income of the deceased at Rs.11,750/- per month, adding 40% of the assessed income towards future prospects, deducting 1/4th towards personal and living expenses of the deceased and applying multiplier of 15', the claimants would be entitled for a sum of Rs.22,20,840/- towards 'loss of dependency' (including future prospects). 8. Claimant Nos.2 and 3 are the daughter and son of the deceased, and claimant No.4 is the mother. Claimant Nos.2 and 3 have lost their father at their young age and have also lost the guidance, love and affection of their father for the rest of their life. Claimant No.4, the mother, has lost his son at the evening of her life and she has lost his love and affection. Hence, claimant Nos.2 to 4 would be entitled to compensation on the head 'loss of parental consortium' and 'loss of filial consortium' in a sum of Rs.40,000/- each. 9. The compensation awarded by the Tribunal on the other conventional heads would not require any interference and the same are left undisturbed. 10. On reassessment, the claimants would be entitled for the following modified compensation: 1. Loss of dependency (including future prospects) Rs.22,20,840/- 2. Loss of estate Rs. 15,000/- 3. Loss of consortium Rs. 40,000/- 4. Funeral expenses Rs. 15,000/- 5. 10. On reassessment, the claimants would be entitled for the following modified compensation: 1. Loss of dependency (including future prospects) Rs.22,20,840/- 2. Loss of estate Rs. 15,000/- 3. Loss of consortium Rs. 40,000/- 4. Funeral expenses Rs. 15,000/- 5. Parental consortium and filial consortium (Rs.40,000/- x 3 to claimant Nos.2, 3 and 4) Rs. 1,20,000/- Total Rs.24,10,840/- Thus, in all, the claimants would be entitled to a total compensation of Rs.24,10,840/-, as against Rs.21,40,000/- awarded by the Tribunal, along with interest at 6% per annum from the date of petition till the date of realization. Accordingly, the appeal is allowed in part. The judgment and award dated 05.04.2019 passed in M.V.C. No.2237/2018 passed by the Tribunal is hereby modified. The claimants are entitled to a total compensation of Rs.24,10,840/-, as against Rs.21,40,000/- awarded by the Tribunal, along with interest at 6% per annum from the date of petition till the date of realization. The apportionment of the compensation and deposit of the compensation among the claimants shall be in the same proportion as ordered by the Tribunal.