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2020 DIGILAW 932 (KAR)

Balappa Bhimappa Walake v. Sadashiv Ramu Mane

2020-06-01

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT S.G. Pandit, J. - The claimants-appellants are before this Court praying for enhancement of compensation not being satisfied with the quantum of compensation awarded under the judgment and award dated 22.02.2019 in MVC No.1428/2016 on the file of the Senior Civil Judge and Addl. MACT, Hukkeri, sitting at Sankeshwar (for short, 'Tribunal'). 2. Brief facts of the case are that the claimants are the parents of the deceased Sadashiv Balappa Waleke. They filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of their son Sadashiv Balappa Waleke in a road traffic accident. It is stated that on 02.02.2016, at about 19.30 hours, the deceased was proceeding on his motor cycle bearing registration No.KA-23-ED-8635, at that time, the tractor and trailers bearing registration Nos.KA-23-TA-1643, KA-23-TA-1644 and KA-23-TA- 9924 which was parked negligently on the middle of the road without putting any indicators. The deceased could not control his motor cycle and dashed to the Tractor and Trailers from its rare side; due to which, he sustained grievous injuries to head, left shoulder, left forearm and other injuries all over the body. Soon after the accident, the injured shifted to Government Hospital, Chikkodi and as per the advice of the doctor, the deceased was shifted to District Hospital, Belagavi for higher treatment. During the treatment period, he succumbed to the injuries on 03.02.2016. It is further stated that the deceased was earning a sum of Rs.12,000/- per month and he was aged about 24 years. 3. On issuance of notice, respondent No.1- owner appeared and failed to file any written statement. Respondent No.2-Insurance Company appeared and filed objections denying the averments of the claim petition. Further, it is also contended that the accident took place due to rash and negligent driving of the deceased. In support of the claim, the 2nd claimantmother herself examined as PW2 and marked the documents as Exs.P1 to P14. No evidence was led on behalf of the insurance company. The Tribunal on consideration of oral and documentary evidence on record awarded a total compensation of Rs.10,88,400/- under the following heads with interest at 6% per annum: Loss of Dependency = Rs. 10,58,400/- Conventional heads = Rs. 30,000/- Total = Rs. 10,88,400/- 4. The claimants being not satisfied with the compensation awarded by the Tribunal are before this Court in this appeal. 5. 10,58,400/- Conventional heads = Rs. 30,000/- Total = Rs. 10,88,400/- 4. The claimants being not satisfied with the compensation awarded by the Tribunal are before this Court in this appeal. 5. Heard the learned counsel for the appellants and learned counsel for respondent No.2-Insurance Company and perused the material on record. 6. Learned counsel for the appellants would submit that the compensation awarded by the Tribunal is on the lower side. She further submitted that the Tribunal had assessed the income of the deceased at Rs.7,000/- per month which is on the lower side. It is submitted that the deceased was earning a sum of Rs.12,000/- per month and to that effect, the claimants had produced identity card at Ex.P10 which demonstrates that the deceased was working as Security Guard at Wind Power Corporation, Itnal village. Learned counsel submits that this Court and Lok Adalath while settling the accident claims of the year 2016, would normally assess the notional income of the victim of the accident at Rs.8,750/- per month, but the Tribunal failed to take into account the notional income. Hence, she prays for taking the notional income of the deceased at Rs.8,750/- per month. Thus, she prays for enhancement of compensation by allowing this appeal. 7. Per contra, learned counsel for the respondent No.2-Insurance Company would submit that the claimants would not be entitled for enhancement of compensation and prays for dismissal of the appeal. She further submits that the income assessed by the Tribunal at Rs.7,000/- per month is proper and since no material is produced to indicate the exact income of the deceased. Thus, she prays for dismissal of the appeal. 8. Having heard the learned counsels for the parties and on perusal of the material on record, the only point that would arise for our consideration in this appeal is as to whether the income of the deceased assessed by the tribunal at Rs.7,000/- per month is proper or not? Our answer to the above point is in the negative for the following reasons: 9. The accident that had occurred on 2.2.2016 involving motor cycle bearing registration No.KA-23-ED- 8635 and tractor and trailers bearing Nos. KA-23-TA- 1643, KA-23-TA-1644 and KA-23-TA-9924 and death of the deceased in the said accident are not in dispute. Our answer to the above point is in the negative for the following reasons: 9. The accident that had occurred on 2.2.2016 involving motor cycle bearing registration No.KA-23-ED- 8635 and tractor and trailers bearing Nos. KA-23-TA- 1643, KA-23-TA-1644 and KA-23-TA-9924 and death of the deceased in the said accident are not in dispute. The deceased was aged about 24 years and it is stated that the deceased was working as Security Guard in Wind Power Corporation, Itnal village and earning a sum of Rs.12,000/- per month. The claimants have produced Ex.P10-Identity Card to demonstrate that the deceased was working as Security Guard at Wind Power Corporation, Itnal Village, but they have not produced any material document to indicate the exact income of the deceased. In the absence of any material on record to indicate the exact income of the deceased, it would be appropriate to take the notional income of the deceased. This Court and Lok Adalath while settling the accident claims of the year 2016 would normally assess the notional income at Rs.8,750/- per month. In this case, in the absence of any material on record to indicate the exact income of the deceased, it would be appropriate to assess the notional income of the deceased at Rs.8,750/- per month. Further, the tribunal has rightly added 40% of the assessed income towards future prospects of the deceased which needs no interference. The Tribunal has also awarded a sum of Rs.30,000/- under the conventional heads which in our view is just and proper as per 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 . The deceased was unmarried and the deduction towards personal expenses of the deceased would be 50% and the Tribunal has rightly taken deduction at 50%, which needs no interference. Thus, the claimants are entitled for modified compensation under the head of loss of dependency as follows: Rs.8750 + 40% - 50% x 12 x 18 = Rs.13,23,000/- 10. In all, the claimants are entitled for total compensation of Rs.13,53,000/- as against Rs.10,88,400/- awarded by the Tribunal. Thus, the claimants are entitled to enhanced compensation of Rs.2,64,600/- with interest at 6% per annum from the date of claim petition till date of payment. 11. In the result, we proceed to pass the following: ORDER 1. In all, the claimants are entitled for total compensation of Rs.13,53,000/- as against Rs.10,88,400/- awarded by the Tribunal. Thus, the claimants are entitled to enhanced compensation of Rs.2,64,600/- with interest at 6% per annum from the date of claim petition till date of payment. 11. 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 by awarding the enhanced compensation of Rs.2,64,600/- with interest at 6% per annum from the date of petition till the date of realization. 3. Respondent No.2-Insurance Company is directed to deposit the enhanced compensation amount with accrued interest within six weeks from the date of receipt of certified copy of this judgment. 4. The deposit and apportionment of the enhanced compensation shall hold good as per the order of the Tribunal. 5. Draw the modified award accordingly.