Parashuram Gavadu Patil R/o Khirhalashi v. Ahemad Suleman Shaikh
2020-07-13
S.G.PANDIT, SHIVASHANKAR AMARANNAVAR
body2020
DigiLaw.ai
JUDGMENT S.G. Pandit, J. - The claimants are in appeal being dissatisfied with the compensation awarded under the judgment and award dated 23.09.2017 in MVC No.159/2016 by XI-Additional District and Sessions Judge and Additional Motor Accident Claims Tribunal, Belagavi, (hereinafter referred to as "the Tribunal" for short). 2. The claimants are parents of deceased Kisanrao Parasharam Patil, who died in road traffic accident, occurred on 21.12.2015. A claim petition was filed under Section 166 of the Motor Vehicles Act seeking compensation for the accidental death of deceased Kisanrao Parasharam Patil involving bus bearing No.MH-9/CA-0252. 3. Two claim petitions were filed in respect of accident occurred on 21.12.2015 in MVC No.159/2016 and 216/2016 and both the claim petitions were clubbed together and common evidence was let in. In support of their claim, claimant No.2/the mother of deceased Kisanrao was examined as P.W.1 apart from marking common documents as Exs.P.1 to P.23. The respondents did not chose to lead any evidence, however got marked Exs.R.1 and R.2 with consent. 4. The Tribunal on analyzing the entire material placed on record, awarded total compensation of Rs.9,05,000/- in MVC No.159/2016, with interest @ 9% per annum from the date of petition till filing of the petition on following heads: 1. Loss of dependency 7,80,000/- 2. Towards funeral expenses 25,000/- 3. Loss of love and affection 1,00,000/- Total 9,05,000/- 5. The Tribunal while awarding the above compensation has assessed the monthly income of the deceased at Rs.10,000/-, deducted 50% of the assessed income towards personal and living expenses of the deceased, applied multiplier 13' taking the age of younger parent and awarded a sum of Rs.7,80,000/- towards loss of dependency. The claimants not being satisfied with the same are before this court in this appeal. 6. Heard the learned counsel for the claimants and the learned counsel for respondent/insurance company. Perused the material on record. 7. The accident and the death of the deceased due to accidental injuries is not in dispute in this appeal. The claimants are before this Court seeking enhancement of compensation. 8. The learned counsel for appellants/claimants would submit that the Tribunal has erred in not awarding any compensation on the head of future prospects.
Perused the material on record. 7. The accident and the death of the deceased due to accidental injuries is not in dispute in this appeal. The claimants are before this Court seeking enhancement of compensation. 8. The learned counsel for appellants/claimants would submit that the Tribunal has erred in not awarding any compensation on the head of future prospects. It is his submission that the deceased was aged 25 years as on the date of the accident and thus, the claimants would be entitled for adding of 40% of the assessed income towards future prospects relying on the decision of the Hon'ble Apex Court in the case of National Insurance Company Ltd vs. Pranay Sethi and others, (2017) AIR SC 5157 . Further, it is submitted that the Tribunal has also erred in adopting multiplier 13' taking the age of the younger parent of the deceased. Relying on the decision of the Hon'ble Apex Court in the case of Sube Singh and another v. Shyam Singh (dead) and others, (2018) AIR SC 1195 , the learned counsel submitted that the age of the deceased has to be taken for computing compensation and thus prays for adopting multiplier 18'. It is his further submission that the claimants would be entitled for Rs.40,000/- each towards filial consortium as per the decision of the Hon'ble Apex Court in the case of Magma General Insurance Co.Ltd vs. Nanu Ram and others, (2018) ACJ 2782 . 9. Per contra, the learned counsel for respondent/insurance company submits that the monthly income assessed by the Tribunal at Rs.10,000/- is on the higher side. It is submitted that the Tribunal without there being any material placed on record has assessed the income of the deceased at Rs.10,000/- per month. He submits that this Court and Lok-Adalaths while settling the accident claims of the year 2015, would normally assess the income at Rs.8,000/- per month notionally, and as such, the notional income of the deceased could be assessed at Rs.8,000/- per month and not Rs.10,000/- per month. He relied on the decision of the Hon'ble Apex Court in the case of Jayakodi and others Vs. Branch Manager, National Insurance Co. Ltd., and another, (2010) ACJ 697 to say that the income could be reassessed and compensation could be re-determined, but overall compensation awarded should not be reduced.
He relied on the decision of the Hon'ble Apex Court in the case of Jayakodi and others Vs. Branch Manager, National Insurance Co. Ltd., and another, (2010) ACJ 697 to say that the income could be reassessed and compensation could be re-determined, but overall compensation awarded should not be reduced. Thus, he submits that the income may be reassessed and compensation may be recalculated without affecting compensation awarded by the Tribunal and prays for modification of the award. 10. On hearing the learned counsel for parties and on perusal of the materials placed on record, the points that would arise for our consideration are as under: i) Whether the income assessed by the Tribunal at Rs.10,000/- per month of the deceased is proper and correct? ii) Whether the claimants are entitled for enhancement of compensation? 11. We answer Point No.(i) in negative and Point No.(ii) in affirmative for the following: REASONS 12. The accident is of the year 2015. The accident involving bus bearing No.MH-9/CA-0252 and the accidental death of deceased Kisanrao Parasharam Patil is not in dispute in this appeal. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court and are praying for enhancement of compensation. It is submitted by the learned counsel for the appellants/claimants that the deceased was doing contract work, earning Rs.20,000/- per month, but no material is placed on record to establish that the deceased was having income of Rs.20,000/- per month . In the absence of material on record to establish the income of the deceased, the Tribunal assessed the monthly income of the deceased at Rs.10,000/- notionally, which is on the higher side. This Court and the Lok-Adalaths, while settling the accident claims of the year 2015, in the absence of material to establish the income, would normally assess the notional income at Rs.8,000/- per month. In the instant case, in the absence of any material to establish the income as well as the avocation of the deceased, we are inclined to assess the notional income of the deceased at Rs.8,000/- per month instead of Rs.10,000/-. If the notional income of the deceased is revised and reduced to Rs.8,000/- per month from Rs.10,000/-, the overall aggregate of compensation would not be reduced in view of the fact that the claimants would be entitled for adding of 40% of the assessed income towards future prospects.
If the notional income of the deceased is revised and reduced to Rs.8,000/- per month from Rs.10,000/-, the overall aggregate of compensation would not be reduced in view of the fact that the claimants would be entitled for adding of 40% of the assessed income towards future prospects. 13. This view is supported by the decision of the Hon'ble Apex Court in the case of Jayakodi (supra) at paragraph 5, which reads as follows: "It was submitted that as the Insurer has not challenged the award of Rs.30,000/- by the High Court under the head of 'shock and mental agony of parents', it should not be disallowed in an appeal filed by the claimants. It is true that in an appeal by the claimants for enhancement, the compensation awarded should not be reduced. But that is with reference to the 'total compensation' awarded, which is the aggregate of sums awarded under various heads. When an appeal is filed by claimants claiming enhancement, the appellate court will calculate the just compensation, in accordance with law. If the amount so calculated is in excess of what is awarded, the difference is awarded as additional compensation. If the amount calculated is found to be less than or equal to the amount awarded by the court below, then the amount awarded by the court below is maintained. But there cannot be any objection for recalculation of compensation under various heads in accordance with law. So long as the total amount awarded is not less than what is awarded by the court below, there cannot be any objection if the amount is reduced under any particular head." 14. A reading of the above decision would indicate that one cannot have any objection for recalculation of compensation in accordance with law, but the same should not result in reduction of compensation awarded by the Tribunal in an appeal filed for enhancement. The deceased was aged 25 years as on the date of the accident. In view of the decision of the Hon'ble Apex Court in the case of Pranay Sethi (supra), wherein it is held that the claimants would be entitled for adding of 40% of the assessed income towards future prospects, wherever the deceased was aged below 40 years, the claimants would be entitled for adding of 40% the assessed income towards future prospects.
Thus, after adding 40% of the assessed income and deducting 50% of the said income towards personal and living expenses of the deceased since the deceased was bachelor and applying multiplier 18', the claimants would be entitled for Rs.12,09,600/- towards loss of dependency including future prospects, computed as under: Rs.8000 + Rs.3,200 = Rs.11,200/- Rs.11200 Rs.5,600 = Rs.5,600/- Rs.5,600 x 12 x 18 = 12,09,600/- 15. The Tribunal has awarded only Rs.25,000/- towards funeral expenses and Rs.1,00,000/- towards loss of love and affection but the claimants would be entitled for Rs.50,000/- on conventional heads as per the decision of the Hon'ble Apex Court in Pranay Sethi (supra). The claimants being parents of the deceased are entitled to Rs.40,000/- each towards filial consortium as per the decision in Magma General Insurance Company supra. Accordingly, the claimants would be entitled to total compensation of Rs.13,39,600/- with interest @ 9% per annum from the date of petition till realization as under: S. No. Heads Amount in Rs. 1 Loss of dependency including future prospects 12,09,600/- 2. On conventional heads 50,000/- 3. Towards filial consortium (Claimants 1 and 2 for Rs.40,000/- each) 80,000/- Total 13,39,600/- 16. In the result, we proceed to pass the following: ORDER 1. The appeal filed by the claimants is allowed in part. 2. The judgment and award of the Tribunal is modified to the extent that the claimants would be entitled for total compensation of Rs.13,39,600/- with interest at 9% per annum from the date of petition till the date of realization. 3. The respondent-insurance company is directed to deposit the enhanced compensation amount before the Tribunal within six weeks from the date of receipt of certified copy of this judgment. 4. The apportionment and deposit would be in the same proportion as ordered by the Tribunal. 5. Draw the modified award accordingly.