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2020 DIGILAW 1506 (KAR)

Shekasab v. P. D. Prabhu

2020-07-27

B.M.SHYAM PRASAD, V.SRISHANANDA

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JUDGMENT V. Srishananda, J. - The claimants are in appeal challenging the judgment and award dated 08.09.2010 passed in MVC No. 372/2007 by the Senior Civil Judge and MACT-VIII, Badami (for short "the Tribunal"). 2. The necessary facts for disposal of the appeal are as under: A claim petition came to be filed under Section 166 of the Motor Vehicles Act by the appellants/claimants contending that on 29.04.2007 one Smt. Bibijan W/o. Shekhsab Havaldar and others were traveling in KSRTC bus and the driver of the bus informed the inmates of the bus that the steering wheel of the bus is jammed and the bus needs to be stopped for repair and as such, the bus was stopped near Borim Bridge circle on the left side of the road and when the passengers were de-boarding the bus, a truck bearing No.KA-22/A-2942 came in a rash and negligent manner from Borim Bridge side and dashed against the KSRTC bus and as such, the bus turtled at about 22.45 hours. It is further contended that Smt. Bibijan suffered grievous injuries and ultimately she succumbed to the injuries in Hospice Hospital, Margo, Goa. It is further contended that she was agricultural coolie and earning Rs.3,000/- per month and was also indulged in agriculture and was deriving sum of Rs.1,500/- per month. Since the appellants/claimants lost the bread winner of their family, they sought for awarding suitable compensation. On issuance of notice, respondent No.1 remained absent and was placed exparte. Respondent No.2 appeared before the Tribunal and filed a written statement denying the entire claim petition averments and prayed for dismissal of the petition. 3. Based on the rival pleadings of the parties, the Tribunal raised following issues; 1. Whether the petitioner proves that deceased Bibijan W/o.Shekasab died due to the injuries sustained in an accident occurred on 29.04.2007 at about 22.45 hours on Borim bridge towards Ponda direction due to rash and negligent driving of Tipper bearing No.KA-22/A-2942 by its driver? 2. Whether the respondent No.2 proves that the driver of tipper had not possessed valid and effective driving licence on the alleged date and time of accident? 3. Are petitioners entitled for compensation? If so, how much and from whom? 4. To what order and award? 2. Whether the respondent No.2 proves that the driver of tipper had not possessed valid and effective driving licence on the alleged date and time of accident? 3. Are petitioners entitled for compensation? If so, how much and from whom? 4. To what order and award? In order to prove the case of the claimants, Shekhsab i.e., the husband of deceased Bibijan got examined himself as P.W.1 and another witness Smt. Channamma as P.W.2, who was also one of the inmates of KSRTC bus and ten documents were produced and marked vide Exs.P.1 to P.10. On behalf of the respondents no evidence is adduced. After hearing the learned counsel for parties and considering the material on record, the Tribunal allowed the claim petition in a sum of Rs.2,01,400/- with interest at the rate of 6% per annum from the date of petition till realization. It is that judgment, which is under challenge in this appeal. 4. The learned counsel for the appellants/claimants submits that the Tribunal has grossly erred in assessing monthly income of the deceased at Rs.1,200/- and sought for enhancement of compensation. The learned counsel also contends that the compensation awarded by the Tribunal on conventional heads is also on the lower side and sought for enhancement. 5. Per contra, the learned counsel for the respondent/insurance company submits that the Tribunal has rightly assessed the monthly income of the deceased as she was admittedly a housewife and contended that the compensation awarded by the Tribunal is just compensation and sought for dismissal of the appeal. 6. After hearing the learned counsel for parties, the points that would fall for consideration of this Court are as under: i) Whether the monthly income assessed by the Tribunal is proper and correct? ii) Whether the appellants/claimants have made out a case for enhancement of compensation? 7. We answer Point No.(i) in the negative and Point No.(ii) in the affirmative for the following: REASONS 8. In the present case, the accidental death of Smt. Bibijan W/o Shekhsab involving a Truck bearing No.KA-22/A-2942 when she was de-boarding KSRTC bus is not in dispute. As could be seen from Ex.P-6/charge sheet, the police have charge-sheeted the driver of the truck bearing No.KA-22/A-2942. The oral evidence of P.W.2 also establishes the negligent act of the driver of truck bearing No.KA-22/A-2942. 9. As could be seen from Ex.P-6/charge sheet, the police have charge-sheeted the driver of the truck bearing No.KA-22/A-2942. The oral evidence of P.W.2 also establishes the negligent act of the driver of truck bearing No.KA-22/A-2942. 9. Though it has been stated in the claim petition that the deceased was an agricultural coolie, earning Rs.3,000/- per month and was also having agricultural income of Rs.1,500/- per month, no documents were produced before the Tribunal to substantiate the monthly income. As such, the Tribunal considering the age of the deceased, notionally assessed the income at the rate of Rs.1,200/- per month and considered the dependency of the claimants at Rs.800/- per month to assess the compensation towards loss of dependency. 10. Whenever there is no proper proof of monthly income placed on record, this Court and the Lok-Adalaths, for the accidental claims of the year 2007, have assessed the monthly income notionally at Rs.4,000/-. In view of the same, we also deem it proper and correct to notionally assess the income of the deceased at Rs.4,000/- per month. 11. In view of principles enunciated by the Hon'ble Apex Court in the case of Sarla Verma and Others vs. Delhi Transport Corporation and another, (2009) AIR SC 3104 , since there are 5 dependants, 1/4th of the assessed income needs to be deducted towards the personal and living expenses of deceased. As such, the monthly income of the deceased would be Rs.3,000/-. 12. Having regard to the age of the deceased being 32 years as on the date of the accident, the proper multiplier would be 16' and accordingly the appellants/claimants would be entitled to Rs.5,76,000/- (Rs.3,000 x 12 months x 16 (multiplier) =Rs.5,76,000/-) towards loss of dependency. 13. Further, applying the principles enunciated by the Hon'ble Apex Court in National Insurance Company Ltd vs. Pranay Sethi and others, (2017) AIR SC 5157 , the claimants would be entitled for a sum Rs.84,000/- (Rs.70,000 + Rs.14,000 (10% addition for every three years)=Rs.84,000/-) on conventional heads. 14. Accordingly, the claimants would be entitled to total compensation of Rs.6,60,000/- on following heads: S. No. Heads Amount (in Rs.) 1 Loss of dependency 5,76,000/- 2 On conventional heads 84,000/- Total 6,60,000/- 15. In view of foregoing discussions, we answer Point No.(i) in the negative and Point No.(ii) in the affirmative and proceed to pass the following: ORDER The appeal is allowed in part. In view of foregoing discussions, we answer Point No.(i) in the negative and Point No.(ii) in the affirmative and proceed to pass the following: ORDER The appeal is allowed in part. The judgment and award passed by the Tribunal is modified and the claimants are entitled to a total compensation of Rs.6,60,000/- as against Rs.2,01,400/- awarded by the Tribunal, with interest at 6% per annum from the date of petition till realization. However, the claimants are not entitled to the interest for the delayed period of 1602 days in filing the appeal as per the order of this Court dated 10.07.2019. The 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 judgment. The apportionment and deposit ordered by the Tribunal would be in the same proportion. Draw the modified award accordingly.