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2020 DIGILAW 999 (KAR)

Kotesh @ Koteppa v. Sampatkumar

2020-06-08

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT S.G. Pandit, J. - The appellants/claimants are before this Court not being satisfied with the compensation awarded by the VAdditional District and Sessions Judge and Motor Accident Claims Tribunal-VI, Belagavi (hereinafter referred to as "the Tribunal" for short) under judgment and award dated 23.01.2016 in MVC No.1450/2014 praying for enhancement of compensation. 2. Though this appeal is listed for admission, with the consent of the learned counsel for parties, heard finally and disposed of by this order. 3. The claimants are the parents and brother of deceased Ganapathi @ Ganesh, who died in a road traffic accident. The claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the death of the deceased Ganapathi. It is stated that on 01.11.2013 when the deceased was proceeding in a goods tempo bearing registration No.KA-48/4741 along with his goods, the driver of the tempo drove the same with high speed in a rash and negligent manner due to which the vehicle toppled. The deceased caught beneath the vehicle and sustained multiple injuries and succumbed to the injuries on the spot. It is stated that the deceased had the qualification of B.A. B.Ed., and M.A. in Hindi and had excellent opportunity of getting government job. It is stated that he was conducting private tutorials and was earning Rs.20,000/- per month and he was aged 27 years as on the date of the accident. On issuance of notice, respondents appeared before the Tribunal and filed their objections. Respondent No.1 denied the petition averments and contended that there was no negligence on the part of the driver of the offending vehicle. Respondent No.2/insurer contended that the driver of the offending vehicle had no valid and effective driving licence as on the date of the accident. It is also contended that there is delay in filing the complaint and the cause of delay is not explained by the complainant. The insurer also contended that the offending vehicle was not involved in the accident apart from contending that the deceased was traveling in goods vehicle as an unauthorized person. As such, it is contended that the insurer is not liable to pay any compensation. 4. Claimant No.1 examined himself as P.W.1 apart from marking Ex.P.1 to P.11. No evidence was let in on behalf of the respondent/insurance company except marking Ex.R.1/insurance policy. As such, it is contended that the insurer is not liable to pay any compensation. 4. Claimant No.1 examined himself as P.W.1 apart from marking Ex.P.1 to P.11. No evidence was let in on behalf of the respondent/insurance company except marking Ex.R.1/insurance policy. The Tribunal on appreciation of the material on record, awarded the total compensation of Rs.8,37,000/- with interest @ 9% per annum from the date of petition till the date of realization. While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.6,000/- per month and applied multiplier 17' and took deduction at 50% of the assessed income, since the deceased was a bachelor. The claimants not being satisfied with the compensation are before this Court in this appeal. 5. Heard the learned counsel for the appellant and the learned counsel for respondent/insurance company. 6. The learned counsel for the appellant/claimants would submit that the income of Rs.6,000/- per month assessed by the Tribunal ignoring the educational qualification of the deceased is on the lower side. Further, he submits that the deceased was conducting private tutorials and was earning Rs.20,000/- per month. The claimant No.1 was examined as P.W.1 and in his evidence, he has clearly stated that his son was earning Rs.20,000/- per month by conducting tutorials, which evidence is ignored by the Tribunal. It is also contended that the Tribunal failed to award compensation on the head of future prospects and the claimants are entitled for adding of 40% of the assessed income towards future prospects. It is also submitted that the appellants/claimants would be entitled for compensation of Rs.40,000/- each towards filial consortium as per the decision of the Hon'ble Apex Court in the case of Magma General Insurance Co.Ltd vs. Nanu Ram and others, (2018) ACJ 2782 and thus, he prays for enhancement of compensation. 7. Per contra, the learned counsel for respondent/insurance company would submit that the income assessed by the Tribunal at Rs.6,000/- per month is proper and correct, which needs no interference. He submits that no material is placed on record to establish the income earned by the deceased. Under such circumstances, the Tribunal has rightly assessed the income at Rs.6,000/- per month. It is further stated that the claimants would not be entitled for compensation under conventional heads also, since the claimant was not having any employment. He submits that no material is placed on record to establish the income earned by the deceased. Under such circumstances, the Tribunal has rightly assessed the income at Rs.6,000/- per month. It is further stated that the claimants would not be entitled for compensation under conventional heads also, since the claimant was not having any employment. Learned counsel for the insurance/company would submit that the Tribunal committed an error in awarding Rs.2,25,000/- on conventional heads. It is his submission that according to 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 claimants would be entitled for maximum of Rs.50,000/- on conventional heads. Thus, he prays for reducing the amount awarded on conventional heads and prays for reducing the compensation awarded by the Tribunal. 8. Having heard the learned counsel for the parties and on perusal of the material on record, the following points would arise of our consideration:- a. Whether the income of the deceased assessed by the Tribunal at Rs.6,000/- per month is proper and correct? b. Whether the claimants would be entitled for adding of 40% of the assessed income towards future prospects? c) Whether the Tribunal is justified in awarding Rs.2,25,000/- on conventional heads? 9. We answer the above Points (a) and (c) in the negative and answer Point (b) in the affirmative for the following:- REASONS 10. The accident is of the year 2013. The accidental death of Ganapathi @ Ganesh in a road traffic accident involving goods tempo bearing No.KA-48/4741 is not in dispute in this appeal. The claimants, in this appeal, seek enhancement of compensation. It is stated that the deceased was aged 27 years as on the date of the accident. The claimants have stated that the deceased was earning Rs.20,000/- per month by conducting private tutorials, but no material is placed on record to establish the income of the deceased in order to show that the deceased was conducting any tutorials. But the claimants have placed on record Ex.P7/B.Ed. certificate to indicate that the deceased was possessing B.Ed. qualification, Ex.P.8 to show that the deceased was possessing B.A. qualification and Ex.P.9/marks card to show that he had completed his M.A. in Hindi 4th semester, which would indicate that he completed the said course in second class. But the claimants have placed on record Ex.P7/B.Ed. certificate to indicate that the deceased was possessing B.Ed. qualification, Ex.P.8 to show that the deceased was possessing B.A. qualification and Ex.P.9/marks card to show that he had completed his M.A. in Hindi 4th semester, which would indicate that he completed the said course in second class. Thus, it is established that the deceased was possessing B.A., B.Ed., and M.A. degrees. Looking to the qualification of the deceased and the evidence of P.W.1/father of the deceased, the income assessed by the Tribunal at Rs.6,000/- per month is on the lower side. The notional income assessed by the Lok-Adalath and this Court while settling the claims for the accidents of the year 2013 is Rs.7,000/- per month. But in the instant case since the deceased had qualification of B.A., B.Ed., and M.A. in Hindi, we feel it proper to assess the income notionally at Rs.8,500/- per month. 11. The next contention of the appellants is that the Tribunal committed an error in not awarding any compensation towards future prospects. The deceased as stated above, was aged 27 years. The Hon'ble Apex Court in Pranay Sethi (supra) has held that the claimants would be entitled for adding of 40% of the assessed income towards future prospects, wherever the deceased was aged below 40 years. The Hon'ble Apex Court in subsequent decision reported in (SC) in the case of Oriental Insurance Company vs. Hem Raj and others, (2018) ACJ 05 has clarified that there cannot be distinction where there is a positive evidence of income and where minimum income is determined on guesswork for awarding compensation on the head of future prospects. Thus, we are of the view that the claimants would be entitled for compensation on the head of future prospects by adding 40% of the assessed income. After adding 40% of the assessed income the monthly income of the deceased would be Rs.11,900/- and since the deceased was unmarried, 50% of the said amount needs to be deducted towards his personal expenses, which work out to Rs.5950/-. Since the deceased was aged 27 years as on the date of the accident, multiplier 17' adopted by the Tribunal is correct and hence the claimants would be entitled to Rs.12,13,800/- (Rs.5,900 x 12 x 17 = Rs.12,13,800/-) towards loss of dependency and future prospects. 12. The Tribunal awarded total compensation of Rs. Since the deceased was aged 27 years as on the date of the accident, multiplier 17' adopted by the Tribunal is correct and hence the claimants would be entitled to Rs.12,13,800/- (Rs.5,900 x 12 x 17 = Rs.12,13,800/-) towards loss of dependency and future prospects. 12. The Tribunal awarded total compensation of Rs. 2,25,000/- on conventional heads. The Hon'ble Apex Court in Pranay Sethi (supra) has held that the claimants would be entitled to maximum of Rs.50,000/- towards conventional heads wherever the deceased was a bachelor in the accident. There is no dispute that the deceased was a bachelor. The Lok-Adalath and this Court while settling the accident claims fixed Rs.50,000/- as compensation under conventional heads, hence, we deem it appropriate to award Rs.50,000/- towards conventional heads as against Rs.2,25,000/- awarded by the Tribunal. 13. The claimant No. 1 and 2 are parents of the deceased, who have lost their son, who was looking after them and they were depending fully on the income of their son. As the parents have lost the love and affection of their son, we deem it appropriate to award Rs.40,000/- each towards filial consortium as held by the Hon'ble Apex Court in the case of Magma General Insurance Company Ltd (supra). Thus, the claimants would be entitled for the following modified compensation:- HEADS AMOUNT Towards loss of dependency and future prospects (Rs.5,900 x 12 x 17 = Rs.12,13,800/-) Rs.12,13,800/- Towards filial consortium Rs. 80,000/- Towards Conventional Heads Rs. 50,000/- Total Rs.13,43,800/- 14. Consequently, the appeal is allowed in part and the claimants are entitled for a total compensation of Rs.13,43,800/- as against Rs.8,37,000/- awarded by the Tribunal with interest @ 9% per annum. However, in view of the order of this Court dated 11.01.2019, the claimants would not be entitled for interest for delayed period of 645 days. 15. The apportionment and deposit would be as ordered by the Tribunal in the same proportion. Draw modified decree accordingly.