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Judgment
N.K. Patil, J.—These two appeals are by the claimants and insurer being aggrieved by the impugned judgment and award dated 19.08.2013 passed in MVC No. 2767/2011 on the file of the XII Addl. Small Causes Judge and Member, MACT, Bangalore (SCCH-8), (hereinafter referred to as Tribunal'' for short). By its impugned judgment and award, the Tribunal has awarded a sum of Rs. 56,82,576/- with interest at 6% p.a. from the date of petition till its realization.
It is the case of the claimants that the compensation awarded by the Tribunal is inadequate and requires enhancement. It is the case of the appellant-insurer that the amount awarded by the Tribunal is disproportionate to the income of the deceased and therefore, prays for reducing the quantum of compensation awarded by the Tribunal by modifying the impugned judgment and award.
The brief facts of the case are that, claimant No. 1 is the wife, claimant No. 2 is the minor son and claimant Nos. 3 & 4 are the parents of the deceased. They have filed a claim petition under Section 166 of the M.V. Act, claiming compensation on account of untimely death of deceased Dr. Raghavendra in a road traffic accident that occurred on 03.02.2011, at about 3.00 P.M. while Dr. Raghavendra was proceeding on a motor cycle bearing No. KA-05-EP-9002 on the Birur-Kadur (NH-206), near Amrutha Mahal. At that time, a Lorry bearing No. CG-04-J-6305 came from opposite direction i.e. from Kadur side driven by its driver in a rash and negligent manner and dashed against the motor cycle. Due to the impact, the deceased fell down from the motor cycle and died on the spot. It is further case of the appellant that deceased was a doctor by profession working in a Government Hospital getting a gross salary of Rs. 32,796/- per month and he had excellent professional career and bright future as he had secured gold medal and had another 25 years of service to attain superannuation. The first claimant-wife has lost her companion, the son has lost the love and affection of his father and the parents have lost security in life and suffered mental pain and agony.
Taking all these factors into consideration, they have filed a claim petition against the insurer and others. On behalf of the claimants, P.Ws. 1 to 3 are examined and got marked documents at Exs. P1 to P25, whereas the insurer has not entered witness box but however got marked 3 documents at Exs. R1 to R3. The subject matter had come up for consideration before the Tribunal. The Tribunal after appreciation of the oral and documentary evidence, has recorded a finding of fact in paras 10 & 11 of its judgment that due to rash and negligent driving of the Lorry by its driver, the accident took place and awarded a compensation of Rs. 56,82,576/- with interest at 6% p.a. from the date of petition till realization. The Tribunal fixed the entire liability jointly and severally on the owner and insurer & directed the insurer to indemnify the award amount on the ground that the policy was duly insured and was in force as on the date of accident. Being aggrieved by the said judgment and award, both the claimants and insurer felt necessitated to file their respective appeals.
Learned Counsel for the claimants at the outset submits that the Tribunal has erred in not awarding reasonable compensation under loss of dependency'' and conventional heads and what is awarded is inadequate. Taking through the evidence of P.Ws. 1 to 3, he contended that deceased was aged 35 years, doctor by profession and a gold medalist and had still 25 years of service to attain superannuation and he was the only earning member of the family. The wife has lost her companion, the minor son aged 2 years and 8 months has lost love and affection of his father and parents are senior citizens and there is social and economic loss to the family. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified. Learned Counsel further submits that the rate of interest awarded is also on the lower side and the same may be awarded at 9% to 10% p.a. instead of 6% awarded by the Tribunal.
Per contra, learned counsel for the insurer inter alia submitted that the Tribunal committed an error much less material irregularity and miscarriage of justice while passing the impugned judgment and award. Without due appreciation of the evidence on record and the documents namely Ex. P5-sketch, Ex. P7-seizure mahazer, Ex. P9- IMV report and Ex. P4-spot mahazar, the Tribunal has fixed the negligence on the part of the driver of a Lorry which is not justifiable. The Tribunal ought to have fixed at least 10% to 20% contributory negligence on the part of the deceased. Learned Counsel further submitted that the Tribunal also erred in deducting 1/4th towards personal expenses instead of 1/3rd. To substantiate his submission, he is quick to point out that 4th claimant-father was not dependent on the deceased as he is an ex-serviceman, drawing pension. These aspects of the matter are not properly considered. Therefore, he prays for modifying the impugned judgment and award by allowing the appeal filed by it.
After careful consideration of the submission of the learned Counsel for the claimants and learned Counsel for the insurer and after perusal of the impugned judgment award and after critical evaluation of the material available on record, the points that arise for consideration are:
1) Whether the Tribunal is justified in fixing the entire negligence on the part of the driver of the Lorry?
2) Whether the quantum of compensation awarded is just and reasonable?
Re. point No. 1: The occurrence of the accident and death of deceased in the accident are not in dispute. It is significant to note that claimants got examined themselves as P.Ws. 1 to 3 and placed reliance on Exs. P1 to P18 and submitted that deceased Raghavendra died in the road traffic accident that occurred on Birur-Kadur (NH-206) road, near Amrutha Mahal, due to rash and negligent driving by the driver of the Lorry bearing No. C-04-J-6305, insured with the appellant-insurer. As on the date of the accident, the vehicle in question was duly insured which is not disputed. As per Ex. P9, IMV report, the front wheel assembly, handle bar, battery cover, crash guard, dash board and petrol tank of the motor cycle were damaged. ExP4-spot mahazar shows that the road runs from east to west. The motor cycle was coming from west to east i.e. from Biruru side and Lorry was proceeding towards Birur side from Kadur side. The place of accident shows 2 y2 feet away from the northern edge of the road. Even though, the body of the deceased is shown on the middle of the road, there is a clear recital of the spot mahazar drawn in respect of the place of the accident. That means the Lorry which was proceeding from east to west went to extreme right side of the road and dashed against the motor cycle. P.W. 5 in his evidence has disclosed that due to rash and negligent driving of the Lorry bearing No. CG-04-j-6305 by its driver, the accident has occurred. The appellant-insurer has cross-examined him at length but nothing has been elicited from the evidence of P.W. 5. Learned Counsel appearing for the appellants placed reliance on a judgment of the Apex Court reported in AIR 2011 (1) KAR 350 (P. ANKIREDDY v. ORIENTAL INSURANCE CO. LTD.) and contended that the Tribunal after going aforesaid has opined that the same is not applicable to the facts and circumstances of the present case and further recorded a finding of fact after evaluation of the evidence of P.Ws. 1 to 34 and documents Exs. P1 to P18, that the insured died in the road traffic accident due to rash and negligent driving of the Lorry by its driver. The said conclusion is arrived at after due appreciation of oral and documentary evidence on record and interference by this Court is not called for. Therefore, the contention of the learned counsel for the insurer that the Tribunal ought to have fixed the reasonable contributory negligence on the deceased cannot be accepted.
Re. point No. 2: It is the case of claimants that the first claimant is the wife, second claimant is the minor son and third and fourth claimants are the parents of the deceased. It is not in dispute that deceased was aged 35 years and a doctor by profession and he had excellent professional career and a gold medalist. Unfortunately, the deceased succumbed to the injuries on the spot and he was the only earning member of the family and used to contribute entire earnings to the welfare of his family. The wife has lost the companion and the child has lost the love and affection of its father and the parents have lost social and economic security and are deprived to see the bright future of their only son. Deceased was getting a gross salary of Rs. 32,796/- p.m. as per Ex. P22 and in the light of the decision reported in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , 50% towards future prospects of the income should be added. Then the total income comes to Rs. 49,194/- (Rs. 32,796/- + Rs. 16,398/-). The annual income comes to Rs. 5,90,328/- (Rs. 49,194/- x 12). Out of that, in the light of the judgment of Sarla Verma, if professional tax and income tax at Rs. 45,432/- is deducted, then the net income comes to Rs. 5,44,896/-. In the instant case, as rightly pointed out by the learned counsel, the Tribunal ought to have deducted 1/3rd instead of 1/4th towards personal expenses for the reason that claimant No. 4 - father is a retired ex-service man and getting pension and was not depending on the deceased. Therefore, if the said amount is deducted from Rs. 5,44,896/-, the net income comes to Rs. 3,63,264/-. The deceased was aged 35 years and appropriate multiplier applicable is 16. Accordingly, we award a sum of Rs. 58,12,224/- under the head loss of dependency (i.e. Rs. 3,63,264/- x 16).
In the light of catena of judgments of the Apex Court & this Court, the compensation under the conventional heads is liable to be re-determined. Accordingly, the claimants are entitled to the compensation as under:
Having regard to the facts and circumstances of the case as referred to above, the appeal filed by the claimants is allowed in part. The impugned judgment and award dated 19.08.2013 passed by the Tribunal in MVC No. 2767/2011 is hereby modified. The total compensation payable comes to Rs. 60,62,224/- as against Rs. 56,82,576/- awarded by the Tribunal. The enhanced compensation comes to Rs. 3,79,648/- which carries interest at 9% p.a. from the date of petition till its realization as the accident is of the year 2011.
The appeal filed by the insurer is dismissed as devoid of merits.
The appellant-insurer is directed to deposit enhanced compensation with interest at 9% p.a. within three weeks from the date of receipt of a copy of this judgment.
Out of enhanced compensation of Rs. 3,79,648/-, Rs. 1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the W. claimant for a period of 15 years and renewable for 10 years with liberty to withdraw the interest periodically.
Rs. 1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the 2nd claimant who is the minor son of the deceased, till he attains the age of 30 years. Claimant No. 1 who is the mother of claimant No. 2 is entitled to withdraw the interest periodically till claimant No. 2 attains the age of 21 years, for the welfare of claimant No. 2. From 22 years to 30 years, claimant No. 2 is entitled to withdraw the interest periodically.
The remaining amount of Rs. 1,79,648/- with proportionate interest shall be released in favour of claimant Nos. 1, 3 and 4 in equal proportion immediately after deposit by the Insurer.
The amount in deposit in MFA 10604/2013 is ordered to be transferred to the jurisdictional Tribunal forthwith.