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2020 DIGILAW 949 (KAR)

Jayamma v. Fakkirappa

2020-06-02

S.G.PANDIT, V.SRISHANANDA

body2020
JUDGMENT V. Srishananda, J. - Though these matters are listed for admission, with the consent of the learned counsel for parties, heard finally and disposed of. 2. Mfa No.101653/2019 is preferred by the insurance company and MFA Crob No.100119/2019 is preferred by the claimants assailing the judgment and award passed by the Principal Senior Civil Judge and M.A.C.T., Haveri (hereinafter referred to as "the Tribunal" for short) in MVC No.36/2018, dated 23.01.2019. 3. The brief facts which are germane for the disposal of the appeal and cross-objection are as under:- It is contended in the claim petition that on 22.10.2017, one Peeresh S/o. Keshappa was proceeding from Byadagi towards Shidenur on a motorcycle bearing No.KA-27/EG-5116 obeying the traffic rules. At about 7.00 p.m., when he was near the land of Kabbur of Agasanahalli village, a Tractor Trailer unit bearing No.KA-27/TA-4969-4970 (for short "TT unit") came in a rash and negligent manner from opposite direction and collided against the motorcycle resulting in fatal injuries to the motorcyclist and he became unconscious. It is further contended that, immediately he was shifted to the Government Hospital, Byadagi for treatment and then to Aaraike Hospital, Davanagere where he was treated as an inpatient and thereafter was shifted to A.J. Hospital and Research Centre, Mangalore for higher treatment, where he was treated as an inpatient in ICU and undergone multiple surgeries and despite the best medical treatment, on 29.10.2017, he succumbed on account of fatal injuries sustained by him in the accident. It is further contended by the claimants that a huge amount was spent towards medical treatment of the deceased, transportation of his dead body, funeral expenses etc. It is further contended that the deceased was aged 45 years as on the date of the accident and was earning Rs.30,000/- per month by doing tailoring work and Rs.30,000/- through agricultural operations. It is further contended that the accident had occurred solely on account of rash and negligent driving of the TT unit by its driver and hence sought for compensation. On issuance of notice, both the respondents appeared before the Tribunal and resisted the claim by filing separate objection statements. Both the respondents denied the averments made in the claim petition in toto. On issuance of notice, both the respondents appeared before the Tribunal and resisted the claim by filing separate objection statements. Both the respondents denied the averments made in the claim petition in toto. The owner of the TT unit however contended that he had effective and valid insurance policy as on the date of the accident and therefore, in the event of Tribunal holding that the claimants are entitled to compensation, the liability be fastened on to insurance company. The insurance company has contended that the accident was not occurred on account of rash and negligent driving of the driver of TT unit and sought for dismissal of the claim petition. In order to establish the claim before the Tribunal, claimant No.1/Smt. Jayamma, who is the wife of deceased/Peeresh examined herself as P.W.1 and as many as 34 documents were relied on as documentary evidence, which were marked vide Exs.P.1 to P.34. The respondents have not let in evidence on their behalf however, with consent insurance policy was marked as Ex.R.1. The Tribunal, after cumulative consideration of oral and documentary evidence on record, allowed the claim petition by awarding compensation in a sum of Rs. 26,58,000/- under the following heads:- 1. Towards Loss of dependency Rs.22,68,000/- 2. Towards loss of estate Rs. 15,000/- 3. Towards funeral expenses Rs. 15,000/- 4. Towards loss of consortium Rs. 40,000/- 5. Towards medical expenses Rs. 3,20,000/- Total Rs.26,58,000/- 4. Sri. G. N. Raichur, the learned counsel for the insurance company, has vehemently contended that the Tribunal has wrongly adjudged the compensation as stated above by applying a wrong multiplier of "16" and should have applied multiplier "14" having regard to the age of the deceased, which was 45 years as on the date of the accident and sought for modification of the award accordingly. 5. Per contra, the learned counsel for the claimants, in cross-objection has contended that the Tribunal has wrongly assessed the monthly income of the deceased. It is further contended that the Tribunal ought to have taken into account the grant of compensation under the head of future prospects following the principles laid down 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 enhancement of the compensation. 6. It is further contended that the Tribunal ought to have taken into account the grant of compensation under the head of future prospects following the principles laid down 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 enhancement of the compensation. 6. In view of the rival contentions of the parties, the following points would arise for our consideration: i) Whether the appellant/insurance company has made out a case for modification of the judgment and award passed by the Tribunal in view of applying wrong multiplier? ii) Whether the cross-objectors/claimants have made out a case for enhancement of compensation? 7. We answer the above points in the affirmative for the following:- REASONS 8. In these matters, the death of Peeresh S/o. Keshappa in a road traffic accident that was occurred on 22.10.2017 at 7.00 p.m., near the land of Kabbur of Agansahalli involving the motorcycle bearing No.KA- 27/EG-5116 and the TT unit bearing No.KA-27/TA- 4969-4970 is not in dispute. The injured Peeresh being shifted to Government Hospital, Byadagi and then to Aaraike Hospital, Davanagere and thereafter to A. J. Hospital and Research Center, Mangalore for higher treatment and on 29.10.2017 he succumbed to the fatal injuries is also not in dispute. 9. The claimants contend that the deceased was having income of Rs.30,000/- per month from his tailoring work and Rs.30,000/- per month by agricultural operations, but the Tribunal has not considered the said aspect and has wrongly assessed the monthly income of the deceased. In order to substantiate that the deceased was having tailoring business, bill books were produced before the Tribunal, which were marked as Exs.P.21 to P.23. Further, in order to show that the deceased had some income from agricultural work, RTC extracts were also produced before the Tribunal, which were marked as Ex.P.19 and P.20. The Tribunal however, observed in the judgment that no documents are produced to show that the deceased had agricultural income except marking Ex.P.19 and 20 RTC extracts and observed that since the deceased was indulged in tailoring work, he could not have personally cultivated the land. 10. The Tribunal, on the ground that the deceased was doing tailoring business, has assessed the monthly income of the deceased at Rs.12,000/-. 10. The Tribunal, on the ground that the deceased was doing tailoring business, has assessed the monthly income of the deceased at Rs.12,000/-. Further, the Tribunal has observed that the deceased as per Ex.P.19 and 20 was the owner of 9 acres of agricultural land and therefore assessed supervisory remuneration to the tune of Rs.45,000/- per annum. 11. The learned counsel for the claimants sought for enhancement of compensation stating that the Tribunal did not consider the grant of future prospects based on the legal principles enunciated by the Hon'ble Apex Court in Pranay Sethi (supra). We find sufficient force in the said submission of the learned counsel for the claimants. The Tribunal having assessed the income of the deceased at Rs.12,000/- per month and agricultural supervisory remuneration to the tune of Rs.45,000/- per annum, should have taken into consideration the grant of future prospects. Admittedly, in this matter, the deceased was aged 45 years as on the date of the accident. The Hon'ble Apex Court in the case of Pranay Sethi (supra), has specifically held that for the age group between 40 to 50 years, there should be addition of 25% of the assessed income towards future prospects. Therefore, we deem it appropriate to add 25% of the assessed income towards future prospects. The Tribunal has assessed the income of the deceased to the tune of Rs.1,89,000/- per annum, which cannot be disturbed and in view of above discussion with regard to adding 25% of the assessed income towards future prospects, the annual income of the deceased would be Rs.2,36,250/- (Rs.1,89,000 + Rs.47,250 = Rs.2,36,250/-). 12. Further, 1/4th of the income i.e. Rs.59,062/- needs to be deducted towards personal and living expenses of the deceased and after deducting the same, the yearly income of the deceased would be Rs.1,77,188/-. 13. Having said thus, we also find that the arguments put forth on behalf of the learned counsel for the insurance company Sri. G. N. Raichur that the Tribunal ought to have applied multiplier "14" having regard to the age of the deceased is justifiable. Accordingly, the claimants would be entitled to Rs.24,80,632/- (Rs.1,77,188 x 14 = Rs.24,80,632/-) towards loss of dependency including future prospects. 14. As regards compensation awarded by the Tribunal on other heads is concerned, the same needs no interference. 15. Accordingly, the claimants would be entitled to Rs.24,80,632/- (Rs.1,77,188 x 14 = Rs.24,80,632/-) towards loss of dependency including future prospects. 14. As regards compensation awarded by the Tribunal on other heads is concerned, the same needs no interference. 15. In view of the foregoing discussions, the award passed by the Tribunal needs to be modified as under:- 1. Towards Loss of dependency including future prospects Rs.24,80,632/- 2. Towards loss of estate Rs. 15,000/- 3. Towards funeral expenses Rs. 15,000/- 4. Towards loss of consortium Rs. 40,000/- 5. Towards medical expenses Rs. 3,20,000/- Total Rs.28,70,632/- 16. Accordingly, the appeal and the corssobjections are disposed of modifying the judgment and award dated 23.01.2019 in MVC No.36/2018 passed by the Principal Senior Civil Judge And Motor Accident Claims Tribunal, Haveri. 17. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till realization. 18. The insurance company is directed to deposit the compensation amount with interest within a period of six weeks from the date of receipt of certified copy of this order. 19. The amount in deposit, if any, made by the insurance company shall be transmitted to the jurisdictional Tribunal, forthwith. Draw the modified award accordingly.