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2020 DIGILAW 961 (KAR)

Devaraj A E v. Eashawarappa

2020-06-03

S.G.PANDIT, V.SRISHANANDA

body2020
JUDGMENT S.G.Pandit, J. - The claimants/appellants are before this Court in this appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 18.07.2016 passed in M.V.C. No.873 of 2015 on the file of the Principal Senior Civil Judge and Additional Motor Accident Claims Tribunal, Ranebennur (for short 'the Tribunal'), and praying for enhancement of the compensation. 2. Even though the appeal is listed for Admission, with the consent of the learned counsel for the parties, the appeal is taken up for disposal. 3. The claimants are the husband and children of the deceased Chandana. The claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') seeking compensation for the death of Chandana in a road traffic accident that occurred on 28.03.2015. It is contended that on 28.03.2015 when Chandana was proceeding as a pillion rider on the motorcycle bearing registration No.KA-15/Q-6159, the rider of the motorcycle drove the same in a rash and negligent manner, due to which the rider lost control over the vehicle and thereby the Chandana fell down and sustained grievous injuries. Immediately, she was shifted to the general hospital at Shikaripur for treatment and subsequently to Shimoga Hospital for higher treatment. During the course of the treatment, Chandana succumbed to the injuries. It is stated that the claimants spent Rs.1,00,000/- towards hospital charges and also incurred other incidental expenses. It is stated that the deceased Chandana was aged 28 years as on the date of the accident and she was doing tailoring and embroidery work, and was earning Rs.15,000/- per month. 4. On issuance of notice, respondent Nos.1 and 2 appeared and filed their objections. The 2nd respondentinsurance company, in its objection, denied the averments made in the claim petition. Further, it contended that respondent No.1 with the full knowledge had voluntarily handed over the said vehicle to a rider who did not possess a valid and effective driving licence. It also stated that there was violation of terms and conditions of the insurance policy. 5. The claimants, in support of their case, examined claimant No.1, the husband of the deceased Chandana, as P.W.1 and marked Exs.P.1 to P.17. The respondents did not examine any witness. However, copy of the insurance policy was marked as Ex.R.1. It also stated that there was violation of terms and conditions of the insurance policy. 5. The claimants, in support of their case, examined claimant No.1, the husband of the deceased Chandana, as P.W.1 and marked Exs.P.1 to P.17. The respondents did not examine any witness. However, copy of the insurance policy was marked as Ex.R.1. The Tribunal on scrutiny of the entire material on record, both oral and documentary, awarded a total compensation of Rs.5,39,000/- with interest at the rate of 8% per annum, on the following heads: S. No. Heads Amount 1. Loss of dependency Rs. 4,59,000-00 2. Loss of consortium Rs. 20,000-00 3. Towards transportation of the dead body and funeral Rs. 20,000-00 4. Towards loss of estate Rs. 10,000-00 5. Towards loss of love and affection Rs. 30,000-00 Total Rs. 5,39,000-00 While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.3,000/- per month, deducted 1/4th towards personal expenses of the deceased. Claimants not being satisfied with the quantum of compensation awarded by the Tribunal, are before this Court in this appeal. 6. Heard the learned counsel for the appellant and the learned counsel for the respondent No.2- insurance company. 7. The learned counsel for the appellants would submit that the Tribunal committed an error in assessing the income of the deceased at Rs.3,000/- per month. He submits that the claimants produced two certificates i.e. Ex.P.8 and Ex.P.9, which are the certificates issued by Jan Shikshan Sansthan, to show that the deceased had completed her hand embroidery and cutting of tailoring course. He submitted that the deceased was also carrying on milk vending work. He also submitted that the deceased was earning a sum of Rs.15,000/- per month, but the Tribunal failed to take into account the evidence of P.W.1 and the documents placed on record, thereby committed an error in assessing the income of the deceased at Rs.3,000/- per month. Further, the learned counsel relying upon the decision of the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, (2017) ACJ 2700 submits that since the deceased was aged 28 years, the claimants would be entitled for addition of 40% of the assessed income towards future prospects. Thus, he prays for allowing the appeal. 8. Further, the learned counsel relying upon the decision of the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, (2017) ACJ 2700 submits that since the deceased was aged 28 years, the claimants would be entitled for addition of 40% of the assessed income towards future prospects. Thus, he prays for allowing the appeal. 8. Per contra, the learned counsel for the 2nd respondent-insurance company would submit that the quantum of compensation awarded by the Tribunal is just compensation which needs no interference. He further submits that even though the claimants have placed Ex.P.8 and Ex.P.9, no documents is produced to indicate the exact income of the deceased and as such, the income assessed by the Tribunal is just and proper. He further submits that the Tribunal committed an error in deducting 1/4th of the income of the deceased towards personal expenses. The claimants/dependants are only three in numbers and in view of the decision of the Hon'ble Apex Court in the case of Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 , the deduction towards personal expenses of the deceased ought to have been 1/3rd. Thus, he prays for dismissal of the appeal. 9. Having heard the learned counsels for the parties and on perusal of the records, the following points would arise for our consideration: i) Whether the income of the deceased assessed by the Tribunal at Rs.3,000/- per month is proper and correct? ii) Whether the claimants would be entitled for addition of 40% of the assessed income towards future prospects? iii) Whether the Tribunal is justified in deducting 1/4th of the income of the deceased towards personal expenses? 10. The answers to point Nos.i) and iii) would be in the negative and the answer to point No.ii) would be in the affirmative, for the following reasons: a) The accident that had taken place on 28.03.2015 involving the motorcycle bearing registration No.KA-15/Q-6159 and the accidental death of Chandana is not in dispute in this appeal. The claimants appeal is for enhancement of the compensation. The claimants have stated that the deceased was earning more than Rs.15,000/- per month by doing hand embroidery and tailoring work. The claimants appeal is for enhancement of the compensation. The claimants have stated that the deceased was earning more than Rs.15,000/- per month by doing hand embroidery and tailoring work. To demonstrate that the deceased was carrying on the tailoring work Ex.P.8 and Ex.P.9-certificates are placed on record which indicate that the deceased had completed her hand embroidery and cutting of tailoring course. However, no material or document is placed on record to indicate the exact income of the deceased. It is also submitted that, apart from doing the tailoring work, the deceased was also carrying on milk vending business. To establish that the deceased was carrying on milk vending business, Exs.P.10 to 12, three cards are placed on record. But, those cards (Exs.P.10 to 12) would not indicate the income earned by the deceased by carrying on the milk vending business. In the absence of any material to determine the income of the deceased, it has to be determined notionally. The notional income of the deceased determined by the Tribunal is on the lower side. This Court and the Lok Adalats, while settling the accidental claims of the year 2015, normally would take Rs.8,000/- as the notional income of a person. In the instant case also, in the absence of any material to indicate the exact income of the deceased, we feel that it would be appropriate to assess the notional income of the deceased at Rs.8,000/- per month. b) The deceased was aged 28 years as on the date of the accident. The Hon'ble Apex Court in Pranay Sethi's case (supra), has held that the claimants would be entitled for addition of 40% of the assessed income towards future prospects where the deceased was below the age of 40 years. Hence, we feel it appropriate to grant future prospects at 40% of the assessed income. c). The contention of the learned counsel for the 2nd respondent-insurance company is that the Tribunal committed an error in deducting 1/4th of the income towards personal expenses of the deceased since the claimants/dependants are only three in numbers and therefore, the deduction towards personal expenses of the deceased ought to have been 1/3rd. c). The contention of the learned counsel for the 2nd respondent-insurance company is that the Tribunal committed an error in deducting 1/4th of the income towards personal expenses of the deceased since the claimants/dependants are only three in numbers and therefore, the deduction towards personal expenses of the deceased ought to have been 1/3rd. The said submission of the learned counsel for the 2nd respondent-insurance company has some force and the same will have to be accepted in view of the decision of the Hon'ble Apex Court in the case of Sarla Verma (supra). Accordingly, we make the deduction to the extent of 1/3rd of the income of the deceased towards personal expenses. 11. Taking the notional income of the deceased at Rs.8,000/- per month, adding 40% towards future prospects and thereafter deducting 1/3rd towards personal expenses of the deceased and applying the multiplier 17', the claimants would be entitled to a sum of Rs.15,23,268/- towards 'loss of dependency'. 12. The compensation awarded by the Tribunal on the other conventional heads would not require any interference and the same is left undisturbed. 13. On reassessment, the claimants would be entitled for the following modified compensation: S. No. Heads Amount 1. Loss of dependency (including future prospects) Rs. 15,23,268-00 2. Loss of consortium Rs. 20,000-00 3. Towards transportation of the dead body and funeral Rs. 20,000-00 4. Towards loss of estate Rs. 10,000-00 5. Towards loss of love and affection Rs. 30,000-00 Total Rs. 16,03,268-00 Thus, in all, the claimants would be entitled to a total compensation of Rs.16,03,268/-, as against Rs.5,39,000/- awarded by the Tribunal, along with interest at 8% per annum from the date of petition till the date of realization. Accordingly, the appeal is allowed in part. The judgment and award dated 18.07.2016 passed in M.V.C. No.873/2015 passed by the Tribunal is hereby modified. The claimants are entitled to a total compensation of Rs.16,03,268/-, as against Rs.5,39,000/- awarded by the Tribunal, along with interest at 8% per annum from the date of petition till the date of realization. Thus, the claimants would be entitled for enhanced compensation of Rs.10,64,268/-. Out of the enhanced compensation, Rs.3,00,000/- each shall be kept in fixed deposit in the names of claimant Nos.2 and 3-minors till they attain the age of majority. The balance amount be released in favour of the 1st claimant.