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2020 DIGILAW 190 (KAR)

Meenakshi And Others v. Vijaya Nemu Poojary And Others

2020-01-22

H.T.NARENDRA PRASAD

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JUDGMENT 1. This appeal is filed by the claimants challenging the judgment and award dated 1.12.2014 passed by the MACT and II Addl. Sr. Civil Judge, Mangalore D.K. in MVC 1183/2013. 2. Brief facts of the case: On 28.3.2013 at about 10.30 a.m., when the deceased Bhaskara was traveling as a pillion rider in motorcycle bearing Registration No.KA-19-U-1082 from Kaikamba towards Kandavara Bailu near Kandavara Padavu Cross, Kandavara Village of Mangalore, a tipper lorry bearing Registration No.KA- 19-D-3854 came in a rash and negligent manner and caused accident. As a result, the deceased sustained grievous injuries and died on the spot. Hence, the mother and brother of the deceased filed the claim petition before the Tribunal. In order to support their case, the brother of the deceased and another witness have been examined as PWs-1 and 2 respectively and submitted 11 documents. On the other hand, the Insurance Company did not examine any witnesses but produced five documents. After appreciation of the evidence, the Tribunal granted compensation of Rs.3,82,000/- with interest at 6% p.a. and directed the Insurance Company to pay 80% of compensation and respondent No.3, owner of the motorcycle to pay 20% of the compensation. Being aggrieved by the same, the present appeal is filed. 3. The learned counsel for the claimants has raised the following contentions: Firstly, the claimants claim that the deceased was earning Rs.14,000/- per month by working as Crane operator. But the Tribunal is not justified in taking the income of the deceased as merely as Rs.4,500/-. Secondly, the deceased was aged about 30 years at the time of the accident. The Tribunal has applied multiplier of 11 based on the age of the mother and the same is contrary to the law laid down by the Honble Apex Court. Thirdly, as per the law laid down by the Honble Supreme Court in the case of National Insurance Co. Ltd. v. Pranay Sethi And Others [ AIR 2017 SC 5157 ] , in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income towards loss of future prospects should be the warrant where the deceased was below the age of 40 years. Ltd. v. Pranay Sethi And Others [ AIR 2017 SC 5157 ] , in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income towards loss of future prospects should be the warrant where the deceased was below the age of 40 years. Therefore, since the deceased was 30 years aged at the time of accident, and since he was self-employed, 40% of his notional income has to be added towards future prospects, in order to calculate the "loss of dependency". Therefore, compensation under the head loss of dependency needs to be recalculated. Fourthly, the compensation awarded by the Tribunal under the conventional heads is on the lower side. As per the decision of Honble Supreme Court in Pranay Sethis case, the compensation to be awarded under the conventional heads, namely, for loss of estate is Rs.15,000/- and for funeral expenses is Rs.15,000/-. Fifthly, as per the judgment of the Honble Supreme Court in the case of Magma General Insurance Co. Ltd. v. Nanu Ram reported in 2018 ACJ 2782 , the claimants are entitled for compensation under the head loss of love and affection. Hence, the learned counsel appearing for the claimants prays for allowing the appeal. 4. Per contra, the learned counsel for the Insurance Company submits that the compensation awarded by the Tribunal under the head loss of love and affection is on the higher side. Further, on appreciation of oral and documentary evidence, the Tribunal has awarded just and reasonable compensation. Therefore, she prays for dismissal of the appeal. 5. Heard the learned counsel for the parties, and perused the judgment and award of the Tribunal. 6. It is not in dispute that deceased died in the accident occurred on 28.3.2013 due to the rash and negligent driving of the offending vehicle by its driver. 7. The claimants claim that the deceased was earning Rs.14,000/- per month by working as Crane Operator. But they have not established the same by producing any documents. Therefore, the Tribunal is left with no other option, but to asses the income of the deceased notionally. In catena of cases, this Court has relied upon the Chart prepared by this Court for the purpose of deciding the matters at Lok Adalath. According to the Chart, for an accident of the year, 2013, the income should be taken notionally as Rs.8,000/- per month. In catena of cases, this Court has relied upon the Chart prepared by this Court for the purpose of deciding the matters at Lok Adalath. According to the Chart, for an accident of the year, 2013, the income should be taken notionally as Rs.8,000/- per month. Therefore, this Court enhances the income of the deceased from Rs.4,500/- to Rs.8,000/- per month. The deceased was aged 30 years at the time of accident. The income of the deceased is assessed at Rs.8,000/- per month. The Tribunal considering that the deceased was a bachelor at the time of the accident has rightly deducted 50% of the income of the deceased towards personal expenses while calculating the "loss of dependency". The multiplier applicable to the age group of the deceased is 17 instead of 11 applied by the Tribunal. As per the decision of the Honble Supreme Court in the case of Pranay Sethi (stated supra), 40% of the income of the deceased has to be added towards future prospects. Hence, the compensation under the head of "loss of dependency" needs to be recalculated. Income of the deceased - 8,000/- Add: 40% towards future prospects - 3,200/- - 11,200/- LESS: 50% towards personal expenses - 5,600/- Actual monthly income - 5,600/- Multiplier - 17 Loss of dependency (5,600 x 17 x 12) - 11,42,400 8. As per the decision of the Honble Supreme Court in the case of Pranay Sethi (supra), the claimants are entitled for the compensation of Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. 9. Since the mother of the deceased has lost her son at an old age and lost the love, protection and companionship, which leads to great shock and agony throughout her lifetime, as per the decision of the Honble Supreme Court in the case of Magma General Insurance (supra), she is entitled for the compensation of Rs.40,000/- under the category of filial consortium. 10. This Court on 8.11.2016 has allowed the application for recalling the order of dismissal dated 14.6.2016 with a condition that the claimants are not entitled for interest from 14.6.2016 till date in the event, the appellants succeed in the appeal. 11. For the reasons stated above, this appeal is partly allowed. The judgment and award of the Tribunal stands modified. This Court on 8.11.2016 has allowed the application for recalling the order of dismissal dated 14.6.2016 with a condition that the claimants are not entitled for interest from 14.6.2016 till date in the event, the appellants succeed in the appeal. 11. For the reasons stated above, this appeal is partly allowed. The judgment and award of the Tribunal stands modified. The claimants are entitled to receive the following compensation: Compensation under different Heads Amount in (Rs.) Loss of dependency 11,42,400 Funeral expenses 15,000 Loss of estate 15,000 Filial consortium 40,000 Total 12,12,400 12. The Insurance Company is directed to deposit 80% compensation amount and owner of the motorcycle bearing Registration No.KA-19-U-1082 is directed to pay 20% of the compensation along with interest @ 6% per annum from the date of filing of the claim petition, till the date of realization, within a period of three months from the date of receipt of the certified copy of this judgment. As per the order dated 8.11.2016 passed by this Court, the claimants are not entitled for interest from 14.6.2016 till 8.11.2016. The apportionment and disbursement of the amount shall be made in accordance with the directions of the learned Tribunal. No order as to costs.