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2020 DIGILAW 1440 (KAR)

Bibijan v. Shrinivas S Mahishwadagi

2020-07-20

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT V. Srishananda, J. - The claimants in MVC No.2541/2016 on the file of the Senior Civil Judge and JMFC., Raibag (hereinafter referred to as "the Tribunal" for short) have questioned the validity of the judgment and award dated 04.04.2018 in this appeal. 2. Though the appeal is listed for admission, with the consent of the learned counsel for parties, heard finally and disposed of. 3. The brief facts which are necessary for disposal this appeal are as under: A claim petition was filed under Section 166 of the Motor Vehicles Act by the dependants of one Davalasab Mulla contending that on 09.08.2016 at about 9.30 p.m. near Harugeri cross, when said Davalsab Mulla was proceeding on a motorcycle bearing No.KA-23/M- 9338 as a pillion rider, the rider of the motorcycle ridden the said motorcycle in a rash and negligent manner and lost control over the vehicle due to which the motorcycle toppled and fell into a ditch resulting in Davalasab Mulla sustaining grievous injuries. Immediately he was shifted to Paramshetti Hospital at Miraj and thereafter to KLE Hospital, Belagavi but ultimately he succumbed to the injuries on 12.09.2018. It is contended that the deceased was aged 36 years and was working as police constable, earning Rs.20,000/- per month. It is contended that the deceased was contributing his entire salary to the family and since the claimants have lost the bread winner, a claim petition came to be filed. 4. After issuance of notice, second respondent appeared before the Tribunal and filed written statement denying the claim petition averments in toto and prayed for rejection of the claim petition. 5. Based on the rival contentions of the parties, the Tribunal framed the following issues: 1. Whether the petitioners prove that, on 09.08.2016 at about 21.30 hours, on Kudachi-Harugeri cross road, within the limits of Kudachi P.S, the deceased was proceeding as pillion rider on Motor Cycle bearing No.KA-23/M-9338, and at that time the rider lost control over the vehicle and caused the accident, thereby the pillion rider sustained grievous injuries and died under the treatment? 2. Whether the petitioners are entitled for the compensation? If so what extent, and from whom? 3. What judgment or award? In order to prove their case, claimant No.4, who is the father of deceased Davalasab Mulla, got examined as P.W.1 and relied on documentary evidence which were marked vide Exs.P.1 to P.14. 2. Whether the petitioners are entitled for the compensation? If so what extent, and from whom? 3. What judgment or award? In order to prove their case, claimant No.4, who is the father of deceased Davalasab Mulla, got examined as P.W.1 and relied on documentary evidence which were marked vide Exs.P.1 to P.14. On behalf of respondents, there was no evidence adduced. After hearing the learned counsel for parties and considering the material on record, the Tribunal allowed the claim petition and awarded a sum of Rs.35,08,001/- with interest @ 6% per annum from the date of petition till realization, on following heads: 1. For loss of dependency 28,78,200/- 2. For medical treatment 4,29,801/- 3. For loss of consortium 75,000/- 4. For loss of love and affection 75,000/- 5. For funeral expenses 50,000/- Total 35,08,001/- 6. It is that judgment, which is under challenge in this appeal. 7. The learned counsel for appellants/ claimants vehemently contends that the Tribunal, while adjudging the compensation, has grossly erred in not awarding compensation towards future prospects. He also submits that the Tribunal has not taken into consideration the amount payable to the claimant No.2 to 5 towards loss of parental and filial consortium and hence, sought for enhancement of compensation. 8. Per contra, the learned counsel appearing for the respondent-insurance company vehemently contends that the Tribunal has grossly erred in awarding Rs.2,00,000/- on conventional heads, which is against the principles enunciated by the Hon'ble Apex Court in the case of National Insurance Company Ltd vs. Pranay Sethi and others, (2017) AIR SC 5157 , and sought for dismissal of the appeal. 9. In view of the rival contentions of the parties, the following points would arise for our consideration: 1. Whether the monthly income adjudged by the Tribunal is proper and correct? 2. Whether the appellants/claimants are entitled for addition of 50% of the assessed income towards future prospects? 3. Whether the claimant Nos.2 to 5 are entitled for filial and parental consortium? 10. We answer point No.1 in the negative, point No.2 and 3 in the affirmative for the following: REASONS 11. The accident in question and the death of one Davalasab Mulla on account of accidental injuries involving motorcycle bearing No.KA-23/M-9338 is not in dispute. So also, the motorcycle involved in the accident in question being insured with respondent/insurance company and there was a valid insurance policy is not in dispute. The accident in question and the death of one Davalasab Mulla on account of accidental injuries involving motorcycle bearing No.KA-23/M-9338 is not in dispute. So also, the motorcycle involved in the accident in question being insured with respondent/insurance company and there was a valid insurance policy is not in dispute. 12. Admittedly, the deceased was working as Police Constable. The salary slip of the deceased, which is marked at Ex.P.14 would depict that the deceased was getting salary of Rs.19,988/- per month. The Tribunal has failed in not deducting Rs.200/- in the monthly salary of the deceased towards professional tax and thus, after deducing the same the monthly income of the deceased would be Rs.19,778/-. 13. Admittedly, the deceased was having a permanent job and was aged below 40 years. As per Pranay Sethi's case, he would be entitled for addition of 50% of the assessed income towards future prospects but the Tribunal did not consider this aspect of the matter while passing the impugned judgment. Having regard to the number of the dependants, 1/5th of the income has to be deducted towards personal and living expenses of the deceased. 14. Further, having regard to the age of the deceased, multiplier 15' adopted by the Tribunal is correct. Accordingly, the claimants would be entitled for Rs.42,74,280/- towards loss of dependency including future prospects as under: Rs.19,788 + Rs.9,894 =Rs.29,682/- Rs.29,682 Rs.5,936 = Rs.23,746/- Rs.23,746 x 12 x 15 = Rs.42,74,280/- 15. The claimants are entitled for a sum of Rs.70,000/- on conventional heads as per Pranay Sethi's case. 16. Further, the claimant No.2 and 3 being minor children of the deceased, who lost their father at their young age and claimant No.4 and 5 being parents of the deceased, who lost their son at the evening of their life are entitled to Rs.40,000/- each towards parental and 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 . 17. The amount of compensation awarded by the Tribunal towards medical expenses is undisturbed. 18. Accordingly, the claimants are entitled to the reassessed compensation of Rs.49,34,081/- with interest @ 6% per annum from the date of petition till realization on following heads:- 1. For loss of dependency including future prospects 42,74,280/- 2. For medical treatment 4,29,801/- 3. Towards conventional heads 70,000/- 4. 18. Accordingly, the claimants are entitled to the reassessed compensation of Rs.49,34,081/- with interest @ 6% per annum from the date of petition till realization on following heads:- 1. For loss of dependency including future prospects 42,74,280/- 2. For medical treatment 4,29,801/- 3. Towards conventional heads 70,000/- 4. Towards filial and parental consortium 1,60,000/- Total 49,34,081/- 19. In view of the foregoing discussions, we answer point No.1 in the negative and Point No.2 and 3 in the affirmative and proceed to pass the following: ORDER The appeal is allowed in part. The appellants/claimants are entitled for the reassessed compensation of Rs.49,34,081/- with interest @ 6% per annum from the date of petition till realization. The respondent/insurance company is directed to deposit the entire compensation amount with interest within a period of six weeks from the date of receipt of certified copy of this order. The apportionment and deposit ordered by the Tribunal would be in the same proportion. Draw the modified award accordingly.