Basheera Banu Khatib and Others vs H.P. Shivaji and Others

N.K. Patil, J.—Though these appeals are posted for orders, with the consent of the learned Counsel appearing for both the parties the same are taken up for final disposal.

These two appeals are respectively by the claimants and insurer directed against the same impugned judgment and award dated 2nd March 2012 passed in M.V.C. No. 931/2009 on the file of the II Additional Senior Civil Judge and VI Additional Motor Accident Claims Tribunal at Davanagere (hereinafter referred to as ''Tribunal'' for short). The Tribunal by its impugned Judgment and Award, awarded a sum of Rs. 23,88,596/- with interest at the rate of 6% p.a. from the date of petition till the date of payment on account of the death of the deceased late A.M. Khatib in the road traffic accident.

It is the case of the claimants that the quantum of compensation awarded by the Tribunal is inadequate and requires enhancement. Whereas, it is the case of the appellant-Insurer that the quantum of compensation awarded by the Tribunal is disproportionate to the income of the deceased and the same is liable to be reduced. Thus, both felt necessitated to present these two appeals respectively.

Brief facts of the case on hand are that, the appellants/claimants 1 to 5 are none other than wife and children of the deceased Late A.M. Khatib. They have filed a claim petition under Section 166 of the Motor Vehicles Act against the 3rd respondent/insurer claiming compensation on account of untimely death of the deceased in the road traffic accident that occurred at about 6.00 A.M. on 20.06.2009, contending that the deceased was aged about 58 years, working as Special Deputy Commissioner, hale and healthy prior to the accident and was getting gross salary of Rs. 39,123/- p.m. and has declared his income as per Income tax assessment - Ex. P16 and he was the only earning member of the family consisting of wife and children and they were entirely depending on him. Whatever amount he earned he used to spend to the welfare of his entire family. On account of untimely death of deceased, the appellant No. 1 - wife has lost her beloved husband/life partner, children have lost love and affection, inspiration and guidance of their father. Further, they contended that when the deceased was traveling in a Tavera Jeep bearing Registration No. KA-17/A-6298 to go to Bababudengiri, near Honnali - Shimoga Main Road, the driver of the said vehicle drove the same in high speed in a rash and negligent manner and hit against the back side of Canter lorry bearing Registration No. KA-27/A-1800, which was parked on the side of the road. Due to the impact, the deceased sustained fatal injuries all over the body and immediately he was shifted to Nanjappa Hospital, Shimoga. In spite of giving best treatment they could not save the deceased and he succumbed to the injuries on the same day at about 2.50 p.m. in the Hospital. Taking all these aspects into consideration, they have filed claim petition before the Tribunal under Section 166 of the Motor Vehicles Act, claiming compensation against the Insurer, owner and the driver of the offending vehicle involved in the accident, contending that the accident occurred due to rash and negligent driving by the driver of the vehicle involved in the accident.

The said matter had come up for consideration before the Tribunal. The Tribunal in turn after due consideration of the oral and documentary evidence and other material available on record, held that due to rash and negligent driving by the Driver of the Tavera, the accident occurred and the charge sheet is filed against him. The policy of the said vehicle was in force as on the date of accident and the 3rd respondent/Insurer herein is held liable to indemnify the award amount.

Being dissatisfied with the impugned Judgment and Award passed by the Tribunal, the claimants and Insurer herein have presented these two appeals seeking appropriate relief as stated supra.

The submission of Sri. Iqbal Ahmed Khan, learned Counsel appearing for the appellants/claimants is that, the Tribunal has erred in not adding 15% of the income towards future prospects of the deceased in the light of the Judgment of Apex Court in the case of Rajesh and Others Vs. Rajbir Singh and Others, , wherein it is held that 15% of the income is to be added towards future prospects between the age group of 50 years and 60 years. Therefore, the impugned judgment and award is liable to be modified by enhancing reasonable compensation.

As against this, it is the submission of the learned Counsel appearing for the 3rd respondent-Insurer Sri. H.S. Lingaraj that, the Tribunal has committed grave arithmetical error while awarding compensation towards loss of dependency and conventional heads and therefore, the same is liable to be reduced substantially. He further submitted that the Tribunal ought to have applied split multiplier as the deceased was having only 1 1/2 years of service as Special Deputy Commissioner and also his wife - 1st claimant is getting family pension and also submitted that another appellant - 2nd claimant has got appointment on compassionate grounds in the Revenue Department. He placed reliance on the judgment of this Court reported in Union of India and others Vs. K.S. Lakshmi Kumar and Others, and submitted that the Tribunal ought to have adopted split multiplier and awarded compensation towards loss of dependency. Therefore, he submitted that the impugned judgment and award is liable to be modified.

After careful consideration of the submissions of the learned Counsel appearing for both the parties and after perusal of the impugned judgment and award passed by the Tribunal, the only point that arise for consideration is:

"Whether the claimants and insurer have made out a case for interference by this Court in the impugned judgment and award passed by the Tribunal ?"

The occurrence of accident and the resultant death of deceased in the road traffic accident are not in dispute. Further, it is not in dispute that the deceased was aged about 58 years and working as Special Deputy Commissioner. He had 1 1/2 years of service which is also not in dispute. The fact that the claimants are wife and children of the deceased is also not in dispute. The Tribunal after due consideration of the entire material available on record, has assigned valid and cogent reasons by following the judgments of Apex Court and this Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, and also in the case of K.R. Madhusudan and others v. Administrative Officer and another reported in 2011 (3) Civil L.J. 658 and also the Judgment of Division Bench of this Court reported in 2009 (2) Civil L.J. 148 at paragraphs 11 and 12 by answering Issue No. 3 and has taken his salary per annum at Rs. 4,69,476/- and after deducting towards Income Tax for the relevant year, the net salary is taken as Rs. 4,39,792/- per annum.

It is relevant to note here itself that the Tribunal committed arithmetical error and it ought to have taken income tax declaration submitted by the appellants/claimants and as per Ex. P16, his annual income was Rs. 3,69,097/- per annum and after deducting statutory benefits, Rs. 1,00,000/- exemption from the income tax. Out of which, permissible deductions towards income tax and professional tax comes is Rs. 32,094/-. The remaining net income comes to Rs. 3,37,003/-. The claimants are five (5) in number, claimant Nos. 1, 3, 4 and 5 are depending on the income of the deceased. Therefore, 1/4th is deducted towards personal expenses i.e. a sum of Rs. 84,250/-. The remaining net amount comes to Rs. 2,52,753/-. In the light of the judgment of Apex Court in the case of Sarla Verma and others, the appropriate multiplier applicable is ''9'' and accordingly, we redetermine the compensation towards loss of dependency at Rs. 22,74,277/-.

Having regard to the facts and circumstances of the case referred above, we deem fit to 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/- to each, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses. In all, the appellants/claimants are entitled to total compensation of Rs. 24,24,777/- as against Rs. 23,88,596/-awarded by the Tribunal. There will be enhancement of compensation by Rs. 36,181/-.

Regarding the reliance placed by the learned Counsel appearing for the claimants and Insurer, there is no dispute in respect of the well settled law of the Apex Court and this Court but the facts of the instant case are not applicable and are of no assistance to him in this case on hand.

The Tribunal erred in not awarding reasonable compensation towards loss of dependency and there is an arithmetical error also in calculating the compensation payable towards loss of dependency. Therefore, the appellants are entitled to additional compensation of Rs. 36,181/- as discussed supra.

Having regard to the facts and circumstances of the case as stated supra and taking all the relevant facts into consideration referred above, the instant appeal filed by the appellant/Insurer is dismissed as devoid of merits and the appeal filed by the appellants/claimants is allowed in part. The impugned Judgment and Award dated 2nd March 2012 passed in M.V.C. No. 931/2009 on the file of the II Additional Senior Civil Judge and VI Additional M.A.C.T., Davanagere is hereby modified awarding compensation of Rs. 36,181/- with interest at 6% p.a. from the date of petition till the date of realization, in addition to the compensation awarded by the Tribunal.

The appellant - Insurer herein is directed to deposit the enhanced amount with interest excluding the interest for the delayed period of 287 days within a period of three weeks from the date of receipt of copy of this judgment and award.

The enhanced compensation amount with interest shall be released in favour of the appellant No. 1 - wife of the deceased immediately on deposit made by the appellant-Insurer.

The amount in deposit in M.F.A. No. 5808/2012 before this Court shall be transmitted to the jurisdictional Tribunal immediately for disbursement.

Draw the award, accordingly.

In view of the disposal of both appeals, I.A. No. 2/2013 in M.F.A. No. 5808/2012 does not survive for consideration and is accordingly disposed of as having become infructuous.