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2022 DIGILAW 1060 (KAR)

Balawwa v. Gadigeppa

2022-08-12

ANANT RAMANATH HEGDE, SHANKAR GANAPATHI PANDIT

body2022
JUDGMENT Shankar Ganapathi Pandit, J. - Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal. 2. The appellants/claimants are before this Court under Section 173(1) of the Motor Vehicles Act, 1988 (for short, 'Act') praying for enhancement of compensation, not being satisfied with the compensation awarded under judgment and award dated 28.02.2018 passed in MVC No. 512/2016 on the file of the learned Addl. Senior Civil Judge & Member, MACT-VI, Jamkhandi (for short, 'Tribunal'). 3. The claimants, who are the mother and sister of deceased Bahubali filed a claim petition under Section 166 of the Act, 1988 seeking compensation for the accidental death of Bahubali that occurred on 02.11.2015 when he was traveling in Mahindra Pick up van due to the rash and negligent driving of the driver of said vehicle. It is stated that the deceased was a bachelor, aged 26 years as on the date of the accident, was working as a coolie and earning Rs. 20,000/- per month. 4. On issuance of notice, respondents No. 1 and 2 being the owner and insurer respectively, appeared through their respective counsel and filed their separate statement of objections denying the entire allegations made in the claim petition. 5. Before the Tribunal, claimant No. 1-mother of the deceased examined herself as PW1. Documents are marked as per Exs.P1 to P15. On behalf of the respondents RW1 and RW2 were examined and got marked Exs.R1 to R4. 6. The Tribunal upon appreciation of the material on record awarded total compensation of Rs. 7,54,000/- on the following heads: Sl. No. Heads Amount 1. Loss of dependency Rs. 7,14,000.00 2. Love and affection (each) Rs. 10,000.00 3. Loss of estate Rs. 15,000.00 4. Funeral expenses Rs. 15,000.00 Total Rs. 7,54,000.00 7. While awarding the above compensation, the Tribunal assessed monthly income of the deceased at Rs. 7,000/-, applied multiplier of 17, as deceased was a bachelor deducted 50% towards personal expenses of the deceased. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court praying for enhancement of compensation. 8. Heard Sri. Prashant S. Kadadevar, learned counsel appearing for the appellants, Sri. S.S. Koliwad, learned counsel for respondent No. 2 and perused the appeal papers. 9. Sri. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court praying for enhancement of compensation. 8. Heard Sri. Prashant S. Kadadevar, learned counsel appearing for the appellants, Sri. S.S. Koliwad, learned counsel for respondent No. 2 and perused the appeal papers. 9. Sri. Prashant S. Kadadevar, learned counsel for the appellants/ claimants would contend that the income of the deceased assessed by the Tribunal at Rs. 7,000/- per month is on the lower side, inasmuch as the deceased was a coolie and earning Rs. 20,000/- per month. He further submitted that in the light of decision of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi & Others AIR 2017 SC 5157 , the claimants would be entitled to an addition of 40% of the assessed income towards future prospects. It is his submission that the Tribunal committed an error in not awarding Rs. 40,000/- towards filial consortium to the mother of the deceased as held by the Hon'ble Apex Court in Magma General Insurance Company Ltd., Vs. Nanu Ram and Others 2018 ACJ 2782 . Thus, he prays for allowing the appeal. 10. Per contra, Sri. S.S. Koliwad, learned counsel appearing for respondent No. 2-Insurance Company supporting the impugned judgment and award would submit that, except pleading that deceased was earning Rs. 20,000/- per month, no documents have been produced to establish the exact income of the deceased. In the absence of any corroborative document, the Tribunal rightly assessed the income of the deceased at Rs. 7,000/- per month which is just and proper. He therefore, submits that the compensation awarded by the Tribunal is just and proper and same requires no interference at the hands of this Court. Thus, he prays for dismissal of the appeal. 11. Having heard the learned counsel for both the parties and on perusal of the appeal papers, the only point that would fall for consideration in this appeal is as to, whether the income of the deceased assessed by the Tribunal at Rs. 7,000/- per month requires to be enhanced and whether claimants are entitled for enhanced compensation? 12. Our answer to the above point is partly in the affirmative for the following reasons. 13. The accident which took place on 02.11.2015 and resultant death of Bahubali, the deceased, is not in dispute in the present appeal. 7,000/- per month requires to be enhanced and whether claimants are entitled for enhanced compensation? 12. Our answer to the above point is partly in the affirmative for the following reasons. 13. The accident which took place on 02.11.2015 and resultant death of Bahubali, the deceased, is not in dispute in the present appeal. It is the contention of the claimants that the income of the deceased assessed by the Tribunal at Rs. 7,000/- per month is on the lower side. The claimants have claimed that the deceased was earning Rs. 20,000/- per month. To prove the income of the deceased, the claimants have not produced any corroborative documents, however, the income of the deceased assessed by the Tribunal at Rs. 7,000/- is on the lower side. In the absence of any documentary evidence to establish the income of the deceased, this Court and Lok Adalath, while settling the accidental claims of the year 2015, would assess notional income of the deceased at Rs. 8,000/- per month, taking note of the chart prepared by KSLSA based on various factors including the minimum wage fixed. In the instant case also, taking note of the same, we deem it appropriate to re-assess the notional income of the deceased at Rs. 8,000/- p.m. instead of Rs. 7,000/- assessed by the Tribunal. Deduction of 50% of the assessed income of the deceased towards personal expenses and multiplier of 17' taken by the Tribunal are not disturbed, which are just and proper. 14. Further, the Tribunal committed an error in not adding 40% of the assessed income towards future prospects of the deceased. In the case of Pranay Sethi (supra), the Hon'ble Supreme Court has held that wherever the deceased was in the age group of 30 to 40 years, the claimants would be entitled for addition of 40% of the assessed income towards future prospects. In the instant case, the deceased was aged 26 years. Therefore, the claimants would be entitled for addition of 40% of the assessed income towards future prospects. Thus, the claimants would be entitled for compensation on the head of loss of dependency at Rs. 11,42,400/- (Rs. 8,000/- + 40% x 12 x 17 x 1/2). 15. Due to sudden demise of Bahubali, claimant No. 1 being mother of the deceased, has lost her son. Therefore, the claimant No. 1 would be entitled to Rs. Thus, the claimants would be entitled for compensation on the head of loss of dependency at Rs. 11,42,400/- (Rs. 8,000/- + 40% x 12 x 17 x 1/2). 15. Due to sudden demise of Bahubali, claimant No. 1 being mother of the deceased, has lost her son. Therefore, the claimant No. 1 would be entitled to Rs. 40,000/- towards filial consortium, as held by the Hon'ble Apex Court in the case of Magma General Insurance Company Ltd. (supra). A sum of Rs. 30,000/- towards loss of estate and funeral expenses. 16. It is contended that the claimants have spent more than Rs. 27,000/- towards treatment to the deceased between 02.11.2015, the date of accident till 04.11.2015, the date of death. Taking note of Exs.P.9 to P.13, which the Tribunal has failed to consider, we award a sum of Rs. 27,668/- towards medical expenses. 17. Thus, the claimants would be entitled for modified compensation on the following heads: Sl. No. Particulars Amount Rs. 1. Loss of dependency (Rs.8,000/- (income) + 40%(future prospects) x 12(months) x 17 (multiplier) x 1/2 (deduction 50%) 11,42,400.00 2. Filial Consortium (claimant No.1) 40,000.00 3. Medical expenses 27,668.00 4. Loss of estate & Funeral expenses 30,000.00 Total 12,40,068.00 Thus, the claimants would be entitled to total compensation of Rs. 12,40,068/- as against Rs. 7,54,000/- awarded by the Tribunal. 18. Hence, we pass the following: ORDER a) The appeal is allowed in part. b) The impugned judgment and award of the Tribunal is modified to the extent that the claimants are entitled to total compensation of Rs. 12,40,068/- as against Rs. 7,54,000/- awarded by the Tribunal. c) The enhanced compensation amount will bear interest at the rate of 6% per annum as awarded by the Tribunal from the date of claim petition till entire amount is deposited. d) Respondent No. 2 Insurance Company shall deposit the enhanced compensation amount with interest before the Tribunal within eight weeks from the date of receipt of certified copy of this judgment. e) The apportionment, disbursement and deposit of the enhanced compensation shall be made as per award of the Tribunal. f) Draw modified award accordingly.