Babitha Kumari vs K. Harish

N.K. Patil, J.—Though this matter is posted today in orders list, with the consent of learned counsel for both the parties, the same is taken up for final disposal. This appeal by the appellants-claimants is directed against the impugned common judgment and award dated 02/04/2012 passed in MVC No. 840/2010, by the Principal Senior Civil Judge and Motor Accident Claims Tribunal, Shimoga, (hereinafter referred to as ''Tribunal'' for short), for enhancement of compensation, on the ground that, a sum of Rs. 14,20,845/- awarded by the Tribunal under different heads with interest at 6% per annum from the date of petition till its deposit against the claim of Rs. 41,20,845/-, on account of the death of the deceased Sri. K. Praneshappa alias Pranesh, in the road traffic accident is inadequate.

In brief, the facts of the case are:

The appellants are the wife, minor children and parents of the deceased. They filed a claim petition before the Tribunal u/s 166 of M.V. Act, claiming compensation against the respondents, on account of the death of the deceased in the road traffic accident, contending that, on 19.4.2010 at about 6.30 p.m. when the deceased along with his wife Babitha Kumari were coming in the motor cycle bearing Reg. No. KA.14.X.5363 from Shivamogga to his wife''s house at Harige and when they came near MRS, at that time, the rider of the Motor cycle bearing Reg. No. KA.14.S.6201 came from Harige side in a rash and negligent manner and dashed against their motor bike and caused the accident. Due to which, deceased fell down and sustained severe injuries. Immediately, he was shifted to Nanjappa Hospital, then to Shekar Hospital, Bangalore and then to NIMHANS where he died.

It is the further case of the appellants that, deceased was aged about 35 years, hale and healthy prior to the accident. He was a businessman by profession and running Esteem Cable Network in Shimoga, apart from that, he was running Dhanalakxmi Traders and one of the partners of Non Banking Finances i.e. R & P Finance in Shimoga and having the monthly income of Rs. 40,000/- and looking after the welfare of the family by contributing his entire earnings to the family. Due to his untimely death, appellants have suffered financial loss as they have lost their bread earner, apart from mental shock and agony.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of Rs. 14,20,845/- under different heads with interest at 6% p.a., from the date of petition till its deposit.

Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have presented this appeal, for enhancement of compensation.

We have heard learned counsel appearing for the appellants and learned counsel for Insurer.

The submission of learned counsel appearing for the appellants, at the outset is that, the Tribunal has erred in deducting 1/3rd towards personal expenses of the deceased instead of 1/4th in the light of the decision of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , since there are five dependants. Further, he submits that, the compensation awarded by the Tribunal towards loss of consortium and towards loss of love and affection is on lower side and it needs to be enhanced. Therefore, he submitted that the impugned judgment and award is liable to be modified by awarding reasonable compensation towards loss of dependency and towards conventional heads.

As against this, learned counsel appearing for the Insurer, inter-alia, contended and substantiated that the impugned judgment and award passed by the Tribunal is just and proper and after due appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference.

After hearing the learned counsel appearing for the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:

Whether the compensation awarded by the Tribunal is just and reasonable?

The occurrence of the accident and the resultant death of the deceased are not in dispute. Further, it is not in dispute that deceased was aged about 35 years, businessman by profession and hale and healthy prior to the accident and only earning member in the family and dependants are his wife, aged about 32 years, minor children aged about 6 and 4 years and parents aged about 70 and 61 years and due to his untimely, they suffered mental shock and agony, apart from financial insecurity. It is the case of the appellants that, deceased was the owner of R & P Finance and Investments after obtaining licence as per Exs. Pl 8 and 19 and as per Ex. P21, he was working as Manager in Sky Line Network and drawing the salary of Rs. 15,000/- per month. But in spite of granting sufficient opportunity, appellants have not produced any credible documents to prove his income. The Tribunal, having regard to the age, occupation of the deceased and the year of accident, has assessed his income at Rs. 10,000/- per month and we accept the same. Out of which, if 1/4th ( Rs. 2,500/-) is deducted towards the personal and living expenses of the deceased since there are five dependants in view of the decision of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , his net income comes to Rs. 7,500/- per month. Accepting the multiplier of ''16'' adopted by the Tribunal since deceased was aged about 35 years as just and proper, we re-determine the loss of dependency at Rs. 14,40,000/- (77,500/- x 12 x 16) instead of Rs. 12,79,872/- as awarded by the Tribunal and accordingly, it is awarded.

Having regard to the facts and circumstances of the case, we award a sum of Rs. 50,000/- towards loss of consortium; Rs. 50,000/- towards loss of love and affection at the rate of Rs. 10,000/- each, Rs. 10,000/- each towards loss of estate and transportation and funeral expenses instead of Rs. 30,000/- awarded by the Tribunal. However, a sum of Rs. 1,10,973/- awarded by the Tribunal towards medical expenses as per the medical bills produced by the appellants is just and reasonable and it does not call for interference. In all, the appellants are entitled to a total compensation of Rs. 16,70,973/- instead of Rs. 14,20,845/-. There would be an enhancement of Rs. 2,50,128/- with interest at 6% p.a., from the date of petition till its realization. For the foregoing reasons, the appeal filed by the appellants is allowed in part. The impugned common judgment and award dated 02/04/2012 passed by the Principal Senior Civil Judge and Motor Accident Claims Tribunal, Shimoga, so far as it relates to MVC No. 840/2010, is hereby modified, awarding a sum of Rs. 2,50,128/- with interest at 8% p.a., from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.

The 3rd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 2,50,128/- with interest at 8% p.a., from the date of petition till the date of realization, within a period of three weeks from the date of receipt of a copy of this judgment and award.

Immediately on such deposit by the Insurer, out of the enhanced compensation of Rs. 2,50,128/-, a sum of Rs. 50,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of the appellant No. 1, in any Nationalized or Scheduled Bank, for a period of 10 years and renewable by another 10 years, with liberty reserved to her to withdraw the interest accrued on it, periodically.

A sum of Rs. 50,000/- with proportionate interest shall be invested in the Fixed Deposit in the names of each of the appellant Nos. 2 and 3, in any Nationalized or Scheduled Bank, till they attain 30 years, with liberty reserved to the appellant No. 1 to withdraw the interest accrued on it, periodically, for the welfare of appellant Nos. 2 and 3, till they attain 21 years and thereafter, from 22 years to 30 years, they are at liberty to withdraw the interest accrued on it, periodically.

A sum of Rs. 50,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of the appellant No. 5, in any Nationalized or Scheduled Bank, for a period of 5 years and renewable by another 5 years, with liberty reserved to her to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 50,128/- with proportionate interest shall be released in favour of appellant Nos. 1, 4 and 5 in equal proportion

Draw the award, accordingly.

Learned counsel Sri. L. Srikanta Rao, is permitted to file vakalath for respondent No. 3, within four weeks.