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2021 DIGILAW 40 (KAR)

M. E. Susheela v. Khaleel M. M.

2021-01-06

H.T.NARENDRA PRASAD

body2021
JUDGMENT : H.T. NARENDRA PRASAD, J. 1. This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimants being aggrieved by the judgment dated 26.4.2013 passed by the Motor Accident Claims Tribunal. 2. Facts giving rise to the filing of the appeal briefly stated are that on 18.2.2012 the deceased Mullerea S. Erappa was walking on the extreme left side of BM Road near SVS weigh Bridge, in Periyapatna Town, at that time, a motorcycle bearing registration No. KA-12-J-9966 which was being ridden in a rash and negligent manner, dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries. 3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 55 years at the time of accident and was working as coolie and earning Rs. 300 to 400/- per day. The claimants claimed compensation to the tune of Rs. 20,00,000/- along with interest. 4. On service of summons, the respondent No. 2 appeared through Counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the rider of the motorcycle was not having valid licence as on the date of the accident. The liability if any, is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition. The respondent No. 1 did not appear inspite of service of notice and was placed ex-parte. 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No. 1 as P.W. 1 and another witness as P.W. 2 and got exhibited documents namely Ex. P1 to Ex. P11. On behalf of respondents, neither any witness was examined nor any document was produced. The claimants, in order to prove their case, examined claimant No. 1 as P.W. 1 and another witness as P.W. 2 and got exhibited documents namely Ex. P1 to Ex. P11. On behalf of respondents, neither any witness was examined nor any document was produced. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its rider, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs. 1,93,000/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed. 6. The learned Counsel for the claimants has raised the following contentions: Firstly, the claimants claim that the deceased was earning Rs. 300 to 400 per day by working as coolie. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs. 3,000/-. Secondly, the deceased was aged about 58 years and multiplier applicable to his age group is 9'. But the Tribunal has wrongly applied 7' multiplier. Thirdly, as per the law laid down by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and Others [ AIR 2017 SC 5157 ], in case the deceased was self-employed or on a fixed salary, an addition of 10% of the established income towards 'future prospects' should be the warrant where the deceased was between the age group of 50-60 years. Fourthly, the compensation awarded by the Tribunal under the conventional heads is on the lower side. Hence, the learned Counsel appearing for the claimants prays for allowing the appeal. 7. On the other hand, the learned Counsel for the Insurance Company has raised the following counter-contentions: Firstly, even though the claimants claim that the deceased was earning Rs. 300 to 400/- per day by working as coolie, the same is not established by the claimants by producing documents. Therefore, the Tribunal has rightly assessed the income of the deceased notionally. Secondly, P.W. 1 has admitted that the deceased was aged about 65 years at the time of the accident and therefore, the Tribunal has rightly applied multiplier of 7'. Therefore, the Tribunal has rightly assessed the income of the deceased notionally. Secondly, P.W. 1 has admitted that the deceased was aged about 65 years at the time of the accident and therefore, the Tribunal has rightly applied multiplier of 7'. Thirdly, there is only one dependent and therefore the deduction towards personal expenses should be 50% instead of 1/3rd deducted by the Tribunal. Fourthly, since the claimants have not established the income of the deceased, they are not entitled for compensation towards 'future prospects'. Fifthly, on appreciation of oral and documentary evidence, the Tribunal has awarded just and reasonable compensation. Hence, the learned Counsel for the Insurance Company prays for dismissal of the appeal. 8. Heard the learned Counsel for the parties and perused the records. 9. It is not in dispute that deceased died in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver. The claimants have not produced any evidence or documents with regard to the income of the deceased. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2012, the notional income has to be taken at Rs. 7,000/- p.m. In respect of the age of the deceased is concerned, as per Ex. P-8 PM report, Ex. P-10 Election ID card, the age of the deceased is shown as 58 years. Therefore, the age of the deceased is taken as 58 years and multiplier applicable is 9'. Regarding deduction towards personal expenses is concerned, the Apex Court in the case of Sarla Verma and Others Vs. Delhi Transport Corporation and Another ( AIR 2009 SC 3104 ) : (2009) 6 SCC 121 has observed as follows:- "We have already noticed that the personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents. No evidence need be led to show the actual expenses of the deceased. In fact, any evidence in that behalf will be wholly unverifiable and likely to be unreliable. Claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may be so. In fact, any evidence in that behalf will be wholly unverifiable and likely to be unreliable. Claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may be so. No claimant would admit that the deceased was a spendthrift, even if he was one. It is also very difficult for the respondents in a claim petition to produce evidence to show that the deceased was spending a considerable part of the income on himself or that he was contributing only a small part of the income on his family. Therefore, it became necessary to standardize the deductions to be made under the head of personal and living expenses of the deceased. This lead to the practice of deducting towards personal and living expenses of the deceased, one-third of the income if the deceased was a married, and one-half (50%) of the income if the deceased was a bachelor. This practice was evolved out of experience, logic and convenience". Therefore, it is well settled law that if the deceased was married and the claimant is the wife of the deceased, one-third of the income of the deceased has to be deducted towards personal expenses of the deceased. To the monthly income of the deceased i.e., Rs. 7,000/-, 10% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in 'Pranay Sethi' (supra). Thus, the monthly income comes to Rs. 7,700/-. Out of which, it is appropriate to deduct 1/3rd towards personal expenses and therefore, the monthly income comes to Rs. 5,133/-. Thus, the claimants are entitled to compensation of Rs. 5,54,364/- (Rs. 5,133 x 9 x 12) on account of 'loss of dependency'. Further, the claimant is entitled for compensation of Rs. 40,000/- under the head of loss of consortium', Rs. 15,000/- on account of 'loss of estate' and Rs. 15,000/- on account of 'funeral expenses'. 10. Thus, the claimants are entitled to the following compensation: Compensation under different Heads Amount in Rs. Loss of dependency 5,54,364 Funeral expenses 15,000 Loss of estate 15,000 Loss of spousal consortium 40,000 Total 6,24,364 The claimants are entitled to a total compensation of Rs. 6,24,364/- as against Rs. 1,93,000/- awarded by the Tribunal. 15,000/- on account of 'funeral expenses'. 10. Thus, the claimants are entitled to the following compensation: Compensation under different Heads Amount in Rs. Loss of dependency 5,54,364 Funeral expenses 15,000 Loss of estate 15,000 Loss of spousal consortium 40,000 Total 6,24,364 The claimants are entitled to a total compensation of Rs. 6,24,364/- as against Rs. 1,93,000/- awarded by the Tribunal. The Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. within a period of four weeks from the date of receipt of copy of this judgment. To the aforesaid extent, the judgment of the Claims Tribunal is modified. Accordingly, the appeal is allowed-in-part.