Divisional Manager, New India Assurance Company Ltd. vs Sunita Narasu Sawale

B. Manohar, J. - These two appeals are filed by the New India Assurance Company Limited as well as the claimants being aggrieved by the judgment and award dated 23-6-2009 made in MVC No. 1370/2006 passed by the Civil Judge (Sr. Dn.) and Additional MACT, Chikodi (hereinafter referred to as ''the Tribunal'' for short).

Since the judgment and award passed by the Tribunal has been challenged in these two appeals, both the appeals are clubbed together and disposed of by his common judgment.

The parties are referred to as per their ranking before the Tribunal.

The claimants are the wife, children and mother of the deceased Narasu Sawale. The case of the claimants is that the deceased Narsu Sawale was working as a weighman-cum-clerit at Shree Doodhaganga Krishna Sahakari Sakkare Karkhane Niyamit, Chikodi. On 8-3-2006 after completion of the work, while he was coming home on his motorcycle bearing Reg. No. KA-23/E-820 on the left side of the road, near Chandur, a Tempo Trax bearing Reg. No. MH-12/B A-5410 driven by its driver in a rash and negligent manner dashed against the motorcycle from hind side. Due to the said impact, the deceased fell down and sustained grievous injuries and subsequently, succumbed to the injuries. The police have registered a case in Crime No. 76/2006 against the driver of the offending vehicle. The claimants claimed that the deceased was aged about 50 years working as a weighman-cum-clerk and earning Rs. 7,263/- p.m. The family was dependent on him and the claimants lost the only bread earner of the family. Due to the actionable negligence on the part of the driver of the Tempo Trax, the accident occurred and hence, the respondent No. 1 owner of the Tempo Trax and respondent No. 2-insurer are liable to compensate the claimants and sought for compensation of Rs. 13,89,000/-.

In response to the notice issued by the Tribunal, respondent No. 1-owner of the vehicle filed written statement denying the entire averments made in the claim petition and also contended that, as on the date of the accident, the driver of the offending vehicle had the valid and effective driving licence and sought for dismissal of the claim petition as against respondent No. 1. Respondent No. 2-Insurance Company filed its written statement denying the entire averments made in the claim petition and also contended that the compensation claimed by the claimant is on the higher side. Further, the insurer of the motorcycle was not made as party to the proceedings and hence, sought for dismissal of the claim petition.

The Tribunal on the basis of pleadings of the parties, framed necessary issues.

The claimants in order to prove their case, got examined claimant No. 2 as P.W.1 and marked documents as Exs. P1 to P9. On behalf of the respondents, none of the witnesses were examined, however, the insurance policy was marked as Ex. R1.

The Tribunal after appreciating the oral and documentary evidence let in by the parties and taking into consideration the spot panchanama, inquest panchanama, seizure panchanama, MVI report, copy of the complaint and charge-sheet held that, due to the actionable negligence on the part of driver of the Tempo Trax, the accident occurred and the claimants are dependents of the deceased and they are entitled for the compensation.

With regard to the quantum of compensation is concerned, P.W. 1 produced Ex. P9-salary certificate of the deceased and it discloses that deceased was getting salary of Rs. 7,263/- p.m. As on the date of the accident, the deceased was aged about 50 years. Claimant Nos. 2 to 4 are the major sons of the deceased and they are not dependent of the deceased. Hence, the Tribunal deducting ⅓rd of the income of the deceased towards his personal expenses, determined the income of the deceased as Rs. 4,842/- p.m. and applying the multiplier of ''12'', awarded a sum of Rs. 6,97,248/- towards loss of dependency. A sum of Rs. 25,000/- has been awarded towards conventional heads. In all, a sum of Rs. 7,22,248/- has been awarded with interest at 6% p.a. Since the insurance policy covers the risk of the offending vehicle, the liability was fastened on the Insurance Company to compensate the claimants. Being aggrieved by the quantum of compensation awarded by the Tribunal, the Insurance Company filed MFA No. 24523/2010, whereas the claimants being not satisfied with quantum of compensation applying the wrong multiplier and awarding meager compensation towards loss of consortium, transportation of dead body and funeral expenses filed MFA No. 21188/2010 seeking enhancement of compensation.

I have carefully considered the arguments addressed by the learned counsel for the appellant Sri. Laxman B. Mannoddar appearing for the Insurance Company and Sri. Sachin S. Magadum, learned counsel appearing for the claimants and perused the impugned judgment and award and other relevant records.

There is no dispute that the deceased Narasu Sawale, the husband of claimant No. 1, father of claimant Nos. 2 to 4 and son of claimant No. 5 died in the road traffic accident, which occurred on 8-3-2006, due to rash and negligent driving of the Tempo Trax by its driver. Ex.P9-salary certificate of the deceased discloses that the deceased was working as a weighman-cum-clerk at Shree Doodhaganga Krishna Sahakari Sakkare Karkhane Niyamit, Chikodi and getting salary of Rs. 7,263/- p.m. However, Sri. Laxman B. Mannoddar, learned counsel appearing for the Insurance Company disputed the said salary certificate contending that the author of the said salary certificate was not examined and hence, the said salary certificate cannot be looked into. It is further contended that the net salary drawn by the deceased is Rs. 5,010/- and while assessing the income of the deceased, the gross salary cannot be taken into consideration.

The records clearly disclose that the deceased was working as a weighman-cum-clerk in Shree Doodhaganga Krishna Sahakari Sakkare Karkhane Niyamit, Chikodi, which was registered under the Co-operative Societies Act and getting salary of Rs. 7,263/- p.m. as a permanent employee of the society, which was registered under the Co-operative Societies Act and audited every year by the State authority. Though the author of the salary certificate was not examined, it cannot be denied that the deceased was working in the said factory and getting salary. While awarding compensation, the gross salary is taken into consideration and only deduction is in respect of professional tax. Hence, after deducting Rs. 200/- towards professional tax, the income of the deceased is determined as Rs. 7,060/- p.m. As on the date of the accident, the deceased was aged about 50 years and the appropriate multiplier would be ''13''. Taking into consideration the income of the deceased as Rs. 7,060/- p.m. and applying the multiplier of ''13'', the claimants are entitled for a sum of Rs. 7,34,240/- towards loss of dependency. A sum of Rs. 45,000/- is awarded towards conventional heads. In all, the claimants are entitled for total compensation of Rs. 7,79,240/-. Accordingly, I pass the following:

ORDER

i) MFA No. 24523/2010 filed by the Insurance Company is dismissed.

ii) MFA No. 21188/2010 filed by the claimants are allowed in part. The judgment and award dated 23-6-2009 made in MVC No. 1370/2006 passed by the Civil Judge (Sr. Dn.) & Additional MACT, Chikodi is modified. The claimants are entitled for total compensation of Rs. 7,79,240/- as against Rs. 7,22,248/-awarded by the Tribunal with interest at 6% p.a.

iii) The amount in deposit in MFA No. 24523/ 2010 shall be transferred to the MACT, Chikodi.