Agnees vs Jayalakshmi and Others

N.K. Patil, J.

This appeal by one of the claimants (legally wedded wife of deceased) is directed against the common judgment and award dated 26th August 2011, passed in MVC No. 56/2001, by the Senior Civil Judge and CJM, Member, Additional Motor Accident Claims Tribunal, Chickballapur, for enhancement of compensation on the ground that, the compensation of Rs. 15,56,000/- awarded in favour of the claimants as against their claim for Rs. 14,00,000/-, is inadequate and also for reapportionment of compensation.

The facts in brief are that, claimants are the legal heirs of the deceased late M. Balaknshna. They filed the claim petition under Section 166 of the Motor Vehicles Act, contending that at about 1:30 P.M., on 10-04-2001, when the deceased M. Balaknshna was deputed to drive from Chickballapur to Bangalore, and Bangalore to Mantralaya and Mantralaya to Bangalore and back to chickballapur, he drove the Bus bearing Registration No. KA-07/F-431 in a moderate speed and following the traffic rules. When he came near Maruthi Gold Star Silk Factory at Hanpura, at that time, a Lorry bearing Registration No. AP-02/U-459, being driven by its driver at high speed, in a rash and negligent manner, lost control on the said Lorry and dashed against the said Bus as a result of the same, the Bus fell down and thereby caused injuries to deceased M. Balaknshna. Immediately, he was shifted to Govt. Hospital, Pennugonda, but, unfortunately, he succumbed to the accidental injuries in the said Hospital.

On account of the death of the deceased, the claimants filed the claim petition before the Tribunal, seeking compensation of a sum of Rs. 14.00 lakhs against the Insurer and others. The said claim petition had come up for consideration before the Tribunal on 26thAugust, 2011. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 15,56,000/- under different heads, with 6% interest per annum, from the date of petition till the year 2006 and at 9% interest per annum from 01-01-2011 till the date of realization, excluding interest for a period of four years from 2007 to 2011 and apportioned the said amount equally among the legally wedded wife, two legitimate daughters and two illegitimate daughters born out of the second wedlock. Being aggrieved by the quantum of compensation awarded by the Tribunal as also the apportionment of compensation, the legally wedded wife of deceased M. Balaknshna is in appeal before this Court, seeking enhancement of compensation and also proper apportionment of compensation.

We have heard the learned counsel appearing for the first claimant/legally wedded wife, learned counsel appearing for Insurer and learned counsel appearing for Respondents 3 to 5, for considerable length of time.

Shri. Vivek B. Ramakrishna, learned counsel appearing on behalf of agraa legal, for first claimant/legally wedded wife of deceased vehemently submitted that the appeal is filed only in so far as it relates to apportionment of compensation awarded by Tribunal. He submitted that, the Tribunal is not justified in apportioning the compensation equally in favour of the appellant, legally wedded wife, her two children and two children born out of the second marriage. The appellant being the legally wedded wife of deceased is entitled to at least 50% of the total compensation and the remaining 50% may be divided among the four children of the deceased. To substantiate his submission, he submitted that the appeal in R.A. No. 186/2004 filed by the second wife against the first wife was contested and ultimately disposed of on 25th May 2011, declaring the appellant herein as the legally wedded wife of deceased M. Balaknshna. When such being the fact, the appellant is definitely entitled to higher percentage of compensation than the children of deceased. Therefore, he submitted that, the impugned judgment and award passed by Tribunal is liable to be modified, apportioning the compensation awarded by Tribunal at least at 40% in favour of the appellant/legally wedded wife and remaining 60% in favour of the four children of the deceased, in equal proportion.

As against this, learned counsel appearing for Respondent Nos. 3 to 5 and learned counsel appearing for second respondent/Insurer, inter alia sought to substantiate the impugned judgment and award passed by Tribunal, stating that the same is passed after due consideration of the oral and documentary evidence available on file and also taking into consideration the relationship of the parties and also the relevant provisions of the Motor Vehicles Act. The same being just and proper, interference in the impugned judgment and award passed by Tribunal is uncalled for.

After hearing the learned counsel for the parties and after re-appreciation of the oral and documentary evidence available on file, the only point that arise for our consideration in this appeal is,

"Whether the apportionment of compensation made by Tribunal requires to be re-apportioned?"

After going through the entire material available on file, including the original records placed before us, it emerges that occurrence of accident and the resultant death of deceased M. Balaknshna @ Balaswamy are not in dispute. It further emerges that the said deceased had two wives and from both the wedlocks, he had two daughters each.

The appellant/first wife and her two daughters had filed the claim petition in M.V.C. No. 56/2001 and the second wife and her two daughters had filed the claim petition in M.V.C. No. 65/2001, seeking compensation on account of the death of the deceased M. Balaknshna in the road traffic accident. Since both the claim petitions arose out of the same accident, same deceased, both the claim petitions were clubbed together and a common judgment was passed. But, the said claim petitions could not be disposed of, without a proper declaration as to who is the legally wedded wife of deceased. Since there was a dispute as to who is the legally wedded wife of deceased, an appeal in R.A. No. 186/2004 was filed by the second wife and the same was contested by the first wife and ultimately the appeal in R.A. No. 186/2004 was disposed of, declaring that the appellant is the legally wedded wife, her two children are legitimate children and the two children of the second wife as the illegitimate children of deceased. Thus, it is clear that the appellant is the legally wedded wife of deceased M. Balaknshna. Respondent No. 3 is the second wife; Respondent Nos. 4 and 5 are the daughters born out of second wedlock and respondents 6 and 7 are the daughters born out of first wedlock. The Tribunal came to the conclusion that the respondent No. 3, being the second wife is not a legal heir and not entitled to any share in the compensation and held that, in all, the legal heirs of deceased M. Balaknshna are the appellant, the legally wedded wife and respondents 4 to 7, being the four daughters born out of first and second marriages. The reasoning given by Tribunal for coming to the said conclusion is just and proper and does not call for interference.

Further, after going through the compensation awarded by the Tribunal in the impugned judgment passed by it, it emerges that the Tribunal has after critical evaluation of the oral and documentary evidence available on file, has awarded total compensation of Rs. 15,56,000/- with 6% interest per annum, from the date of petition till the year 2006 and at 9% interest from 01-01-2011 till the date of realization, excluding interest for a period of four years from 2007 to 2011. The same is just and proper and does not call for interference by this Court.

However, after going through the apportionment of compensation made by Tribunal, equally in favour of the appellant/legally wedded wife, and four children of deceased, at the rate of 20% each, we are of the firm opinion that the same is unsustainable and liable to be re-apportioned, in the light of the judgment of the Apex Court and this Court in catena of decisions.

Admittedly, the appellant is the legally wedded wife of deceased and respondents 4 to 7 are the children of deceased. The appellant was entirely dependent upon the income of the deceased and has lost the life partner at an young age. Therefore, having regard to the totality of the case on hand and having regard to the facts and circumstances of the case, as stated supra, we are inclined to set aside the apportionment made by Tribunal and re-apportion the compensation awarded by Tribunal.

Thus, we hold that the appellant is entitled to 40% of total compensation and respondents 4 to 7 are entitled to equal share in the remaining 60% of compensation, at the rate of 15% each out of the total compensation of Rs. 15,56,000/-.

It can further be seen that, the claim petitions could not be disposed of for the reason that on many occasions, the respective parties failed to lead their evidence as there was a dispute pending between the parties as to who is the legally wedded wife of deceased. Thus there was delay in disposal of the claim petitions by four years, on account of the lapses on the part of the claimants in both claim petitions. Therefore, the Tribunal came to the conclusion that the claimants are not entitled for interest for a period of four years from the year 2007 to 2010. The reasoning given by Tribunal at paragraphs 26 and 27 for arriving at a conclusion that the claimants are not entitled to interest for four years is just and proper and it does not call for interference.

In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed in part. The impugned common judgment and award dated 26th August 2011, passed in MVC No. 56/2001, by the Senior Civil Judge and CJM, Member, Additional Motor Accident Claims Tribunal, Chickba Mapur, is hereby modified, only in so far as it relates to apportionment of compensation is concerned;

"It is needless to clarify that the Respondent No. 2/Insurer shall deposit the entire compensation awarded by Tribunal with interest at 6% per annum, from the date of petition till the year 2006 and at the rate of 9% per annum from 01-01-2011 till the date of realization, excluding interest for a period of 4 years from 2007 to 2010.

The first claimant in M.V.C. No. 56/2001, i.e. appellant herein, being the legally wedded wife is held entitled to 40% of total compensation of Rs. 15,56,000/-, i.e. Rs. 6,22,400/-, out of which, a sum of Rs. 5,00,000/- with proportionate interest shall be invested in the name of appellant - first wife of deceased, in Fixed Deposit, in any scheduled/Nationalized/Grameena Bank, for a period of ten years, renewable by five years, with liberty reserved to her to withdraw the periodical interest and the remaining sum of Rs. 1,22,400/- with proportionate interest shall be released in her favour immediately;

Respondents 4 to 7, being the children of deceased are held entitled to 15% of total compensation of Rs. 15,56,000/-, i.e. Rs. 2,33,400/-, out of which a sum of Rs. 2,00,000/- each with proportionate interest shall be invested in the name of each of respondent Nos. 4 to 7/children of deceased, in Fixed Deposit, in any scheduled/Nationalized/Grameena Bank, for a period of ten years, renewable by five years, with liberty reserved to them to withdraw their respective periodical interest and the remaining sum of Rs. 33,400/- with proportionate interest shall be released in favour of each of Respondent Nos. 4 to 7, immediately;"

Office to draw award, accordingly.