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2022 DIGILAW 1124 (KAR)

Indravva v. Lachama

2022-09-01

ANANT RAMANATH HEGDE, S.G.PANDIT

body2022
JUDGMENT 1. Though this appeal is listed for admission, it is taken up for final disposal, with the consent of learned counsel for both the parties. 2. The claimants are before this Court praying for enhancement of compensation, not being satisfied with the compensation awarded under judgment and award dtd. 5/1/2019 passed in MVC No.1704/2017 on the file of the learned II Addl. Senior Civil Judge and Member, MACT, Belagavi (for short, 'Tribunal'). 3. The claimants, who are the wife, children and mother of the deceased Yallappa, filed a claim petition under Sec. 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of deceased Yallappa that took place on 26/1/2015 involving Tractor & trailers bearing registration Nos.KA-49/T-8520, KA-49/T9691 & KA-49/T-1256. It is stated that the deceased was aged about 46 years as on the date of the accident and he was earning Rs.5,00,000.00 per annum from agriculture. 4. On issuance of notice, respondents No.1 and 2 appeared through their learned counsel and filed their separate statement of objections denying the allegations made in the claim petition. Respondent No.2-Insurane company inter-alia contended that there is no nexus between the alleged injuries and death of deceased Yallappa as the accident occurred on 26/1/2015 and deceased died on 25/10/2015. It was further contended that the claimants 2 & 3 being major sons are not dependents of the deceased. It was further contended that as on the date of the accident, the driver of the offending vehicle had had no valid and effective driving license. Thus, prayed for dismissal of the claim petition. 5. Before the Tribunal, 1st claimant-wife of the deceased examined herself as PW1 and got marked the documents as Exs.P1 to P13. Respondents did not examine any witness, insurance policy and D.L. extract marked as Ex.R1 & R2 respectively. The Tribunal based on the material evidence on record awarded total compensation of Rs.10,40,849.00 with interest at 6% per annum on the following heads: Loss of Dependency Rs.7,92,000/- Funeral expenses, loss of estate & loss of consortium Rs. 70,000/- Loss of love & affection Rs. 25,000/- Medical expenses Rs.1,53,849/ Total Rs.10,40,849/- 6. While awarding the above compensation, the Tribunal assessed the notional income of the deceased at Rs.9,000.00 per month, deducted 1/3rd towards personal and living expenses of the deceased and applied multiplier of 11. 70,000/- Loss of love & affection Rs. 25,000/- Medical expenses Rs.1,53,849/ Total Rs.10,40,849/- 6. While awarding the above compensation, the Tribunal assessed the notional income of the deceased at Rs.9,000.00 per month, deducted 1/3rd towards personal and living expenses of the deceased and applied multiplier of 11. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court praying for enhancement of compensation. 7. Heard Sri. Gururaj Turmari, learned counsel for the appellants-claimants as well as Smt. Preeti Shashank, learned counsel for the respondent-Insurance Company and perused the appeal papers along with original records. 8. Sri. Gururaj Turmari, learned counsel for the appellants-claimants would submit that the notional income of the deceased assessed by the Tribunal at Rs.9,000.00 per month is on the lower side, since the deceased was an agriculturist and earning Rs.5,00,000.00 per annum. It is further submitted that the Tribunal committed an error in taking the age of the deceased as 55 years, since the deceased was aged 47 years as on the date of the accident as per Aadhar Card. 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 25% of the assessed income towards future prospects. It is further submitted that the Tribunal committed an error in not awarding any compensation towards loss of consortium. He further submits that the claimants being wife, children and mother of the deceased would be entitled to Rs.40,000.00 each towards spousal, parental & filial consortium as held by the Hon'ble Apex Court in the case of Magma General Insurance Company Ltd., Vs. Nanu Ram and Others, 2018 ACJ 2782 . . Thus, he prays for allowing the appeal. 9. Smt. Preeti Shashank, learned counsel appearing for the respondent-Insurance Company would contend that even though it is stated that the deceased was earning Rs.5,00,000.00 per annum from agriculture, the claimants have not produced any cogent or acceptable document to prove the exact income of the deceased. She further submits that in the absence of any documentary and cogent evidence to establish the income of the deceased, the Tribunal has rightly assessed notional income of the deceased at Rs.9,000.00 per month, which is just and proper. She further submits that in the absence of any documentary and cogent evidence to establish the income of the deceased, the Tribunal has rightly assessed notional income of the deceased at Rs.9,000.00 per month, which is just and proper. She further submits that the Tribunal on appreciation of the material on record has rightly awarded compensation under various heads, which does not call for any interference at the hands of this Court. Thus, she prays for dismissal of the appeal. 10. Having heard the learned counsel for the parties and on perusal of the appeal papers, the only point that would fall for consideration in this appeal is, whether the claimants would be entitled for enhanced compensation in the facts and circumstances of the case? 11. Our answer to the above point is in the affirmative for the following reasons. 12. There is no dispute with regard to the accident resultant death of deceased Yallappa in this appeal. It is the contention of the appellants-claimants that the notional income of the deceased assessed by the Tribunal at Rs.9,000.00 per month is on the lower side. PW1-wife of the deceased in her evidence deposed that the deceased was an agriculturist and thereby earning Rs.5,00,000.00 per annum. To substantiate the said contention, the claimants have not produced any cogent or acceptable document. However, in the absence of any documentary evidence to establish the income of the deceased, the Tribunal has rightly assessed the notional income of the deceased at Rs.9,000.00 per month, which in our view is just and proper and requires no interference. The claimants have produced a copy of Aadhar Card, wherein year of birth of the deceased is mentioned as 1968. Accordingly, as on the date of the accident, the deceased was aged about 47 years. Therefore, the age of the deceased as on the date of the accident is considered as 47 years. 13. Further, the Tribunal committed an error in not adding 25% 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 40 to 50 years, the claimants would be entitled for addition of 25% of the assessed income towards future prospects. In the instant case, the deceased was aged 47 years as per Aadhar Card. In the case of Pranay Sethi (supra), the Hon'ble Supreme Court has held that wherever the deceased was in the age group of 40 to 50 years, the claimants would be entitled for addition of 25% of the assessed income towards future prospects. In the instant case, the deceased was aged 47 years as per Aadhar Card. Therefore, the claimants would be entitled for addition of 25% of the assessed income towards future prospects. Deduction of 1/3rd taken by the Tribunal towards personal and living expenses of the deceased is not disturbed which is just and proper. Proper multiplier applicable to the age of the deceased is 13'. Thus, the claimants would be entitled for compensation on the head of loss of dependency at Rs.11,70,000.00 (Rs.9,000.00 + 25% x 12 x 13 x 2/3). 14. It is well settled law that the claimants being wife, children & mother of the deceased would be entitled to Rs.40,000.00 each towards spousal, parental & filial consortium as held by the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd. (supra). As held by the Hon'ble Apex Court in the case of Pranay Sethi (supra), the claimants would be entitled to Rs.15,000.00 towards loss of estate, besides Rs.15,000.00 towards transportation of dead body and funeral expenses. The Tribunal awarded a sum of Rs.1,53,849.00 towards medical expenses as per medical bills produced by the claimants and the same is not disturbed. Thus, the claimants would be entitled for modified compensation on the following heads: Sl.No. Particulars Amount 1. Loss of dependency (Rs.9,000 (income per month) + Rs.2,250 (25% towards future prospects) =11,250 x 12 (months) x 13 (multiplier) x 2/3 (1/3rd deduction) Rs.11,70,000/- 2. Loss of estate & Funeral expenses & transportation of dead body Rs. 30,000/- 3. Spousal, Parental & Filial consortium (Rs.40,000/-each claimants) Rs. 1,60,000/- 4. Medical expenses Rs. 1,53,849/- Total Rs.15,13,849/- 15. Thus, the claimants would be entitled to total compensation of Rs.15,13,849.00 as against Rs.10,40,849.00 awarded by the Tribunal. 16. Hence, we pass the following: ORDER a) The above 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 Rs.15,13,849.00 as against Rs.10,40,849.00 awarded by the Tribunal. 16. Hence, we pass the following: ORDER a) The above 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 Rs.15,13,849.00 as against Rs.10,40,849.00 awarded by the Tribunal. c) The enhanced compensation amount will bear interest at the rate of 6% per annum from the date of claim petition till date of realization. d) The respondent-Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within six weeks from the date of receipt of certified copy of this judgment. e) Apportionment, deposit and disbursement of the enhanced compensation shall be made as per the award of the Tribunal. f) Draw modified award accordingly. g) Registry to transmit the records to the Tribunal forthwith. h) No order as to costs.