Bharti Axa General Insurance Co. Ltd. vs Jayalakshmi

N. Kirubakaran, J.—The appeal has been preferred by the Insurance Company against the award of Rs.9,99,000/- awarded by the tribunal for the death of one Mr.Krishnan who died in the accident occurred on 06.01.2011 when he was riding in his two-wheeler which was hit by the bus insured with the appellant/insurance company. The wife, two minor children and the parents of the deceased filed claim petition.

On contest, the tribunal found that the bus was driven rash and negligently and fastened the liability on the insurance company by awarding a sum of Rs.9,99,000/- which is being challenged before this Court.

Heard Mrs.Rathna Thara, learned counsel appearing for the appellant/insurance company and Mr.S.Sathiaseelan, learned counsel appearing for the respondents/claimants. Though the learned counsel appearing for the appellant/insurance company would submit that the accident was head on collision accident and therefore contributory negligence should be fixed on the rider of the two wheeler namely the deceased, the said point was rightly considered by the tribunal believing the evidence of eye-witness P.W.2, who stated that when the deceased was riding in his TVS 50 from Dharmapuri to Pennagaram in the east to west road on the left side of the road, the offending bus came in the opposite direction rash and negligently and dashed against the victim and caused the accident and found that the accident occurred because of the rash and negligent driving of the bus. Moreover, there is no contra evidence on the part of the appellant/insurance company to rebut P.W.2 eye-witness evidence. FIR, Ex.P1 was also registered against the driver of the bus. In those circumstances, this Court has got no occasion to interfere with the finding with regard to the negligence, as found by the tribunal and hence the same is confirmed.

Even though the appellant/insurance company has not challenged the quantum of compensation awarded by the tribunal, a perusal of the award would show that the tribunal has not taken into consideration properly and awarded a just compensation to the respondents/claimants. Even in the absence of appeal or cross objection by the respondents/claimants, this Court has got powers and jurisdiction under Order 41 Rule 33 and Section 151 of C.P.C and Article 227 of the Constitution of India to enhance the compensation, if it is found that the just compensation was not awarded.

In the case on hand, the deceased was aged 27 years at the time of accident and he was doing vegetable business by selling the same in Bangalore. Even though the claimants claimed a sum of Rs.8000/-, the tribunal took Rs.6,000/- as the monthly income of the deceased. As rightly pointed out by the learned counsel appearing for the respondents/claimants, no amount was added towards future prospects. The Hon''ble Supreme Court in Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, determined the monthly income of the vegetable vendor at Rs.6,500/- with regard to the accident occurred on 14. 02.2008 whereas in this case, the accident had occurred after three years of the said accident, i.e. on 06.01.2011. The future prospects was also added following the judgment in SARLA VERMA''s case at 50%. Following the aforesaid judgments, this Court determines the monthly income of the deceased at Rs.6,500/-. If 50% is added towards future prospects, the loss of income works out to Rs.9,750/- [Rs.6500 + 50%] and this court determines Rs.9750/- as the loss of income.

The size of the family is five in numbers and therefore 1/4th has to be deducted towards personal expenses of the deceased which was rightly done by the tribunal. Hence, the loss of income comes to Rs.7,312/- [9750 x 3/4] Since the age of the deceased was 27 years at the time of accident, as per SARLA VERMA''s case, the appropriate multiplier would be 17 and the loss of income is calculated as Rs.14,91,650/- [7312 x 12 x 17].

The first respondent widow was aged about 20 years at the time of accident. She was granted only Rs.20,000/- towards loss of consortium. Loss of husband at the age of 20 years was very horrible. It would cause agony to both physiologically and psychologically, apart from that, stigma is also attached as she may not be able to take part in the social functions like any other women. These are the factors which have to be taken into consideration while determining the amount for loss of consortium. As per the judgment of the Hon''ble Supreme Court in Rajesh and Others Vs. Rajbir Singh and Others, , atleast Rs.1,00,000/- has to be awarded towards loss of consortium. In view of the above, Rs.20,000/- awarded by the tribunal towards loss of consortium is hereby enhanced to Rs.1,00,000/-. Similarly, 2nd and 3rd respondents/claimants were minor aged about 3 years and 1 year respectively. The minor claimants lost their father''s love & care affection and guidance throughout their life which any child is entitled and therefore a sum of Rs.50,000/- each is awarded under the head loss of love & affection. The other dependents being the parents of the deceased are entitled to Rs.25,000/- each towards loss of love & affection. Rs.10,000/- awarded towards funeral expenses, Rs.10,000/- towards transportation, Rs.1,000/- towards damages to clothes are all reasonable and the same are confirmed. The rate of interest awarded by the tribunal at 7.5% per annum shall remain unaltered. Accordingly, the compensation awarded by the Tribunal is hereby enhanced to Rs.16,60,000/-, break-up as follows -

Rounded off to Rs.17,60,000/-.

In the result, the Civil Miscellaneous Appeal is disposed of enhancing the compensation of Rs.9,90,000/- awarded by the tribunal to Rs.17,60,000/- alongwith interest @ 7.5% per annum from the date of petition till the date of deposit. No costs. Consequently, connected Miscellaneous Petition is closed.

It is represented by the learned counsel appearing for the appellant/insurance company that pursuant to the order of this Court, the entire amount awarded by the Tribunal has been deposited before the Tribunal. As far as the enhanced amount is concerned, the appellant/insurance company is directed to deposit the same within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the respondents/claimants 1, 4 & 5 are permitted to withdraw their share alongwith proportionate interest, on the basis of apportionment fixed by the tribunal. As far as the share of the minor respondents /claimants 2 & 3 are concerned, the tribunal is directed to deposit the same in any one of the Nationalised Bank, till they attain majority. The 1st respondent/claimants, being the mother of the minor claimants 2 and 3 is permitted to withdraw the accrued interest, once in three months, on such deposit.

The learned counsel appearing for the respondents/claimants is directed to pay the necessary court fee for the enhanced compensation amount, as per Rules.