Dondiba and Others vs Mohammed Salman and Others

P.S. Dinesh Kumar, J.—This appeal is filed by the claimants challenging the judgment and award dated 14.3.2013 in M.V.C. No. 1400/2011 on the file of the I Addl. District and Sessions Judge and MACT-II, Belgaum (Tribunal'' for short) for enhancement of compensation.

Briefly stated the facts of the case are the deceased, namely, Balkrishna Dhondiba Desai along with one Albert Pawalu Karwaloe as a pillion was riding a motor cycle bearing registration No. MH-07/K-2548. A truck with registration No. KA-32/A-8097, driven in a rash and negligent manner came from the opposite and wrong side and dashed against the motor cycle. Due to the impact, Balakrishna and the pillion sustained injuries and succumbed to the same. Claimants filed the instant petition claiming compensation of Rs. 25 lakhs contending that the deceased was aged 24 years. He was working as a Purchase Manager in a company called Ventile Engineers at Udyam Bagh, Belgaum and earning Rs. 12,000/- per month. Petition was resisted by respondent No. 2 -insurer by filing statement of objections. Two witnesses were examined on behalf of the claimants and 25 exhibits marked. On behalf of the respondents, neither any witness was examined nor any document marked. On consideration of the materials on record, the Tribunal has awarded a sum of Rs. 6,75,000/- with 6% interest p.a. Hence, this appeal for enhancement.

We have heard Sri M.G. Naganuri, learned Counsel for the appellants and Sri Suresh S. Bhat, learned Counsel for respondent No. 2/insurer.

Learned Counsel for the appellants reiterating the petition averments contended that the deceased was an young, energetic person with promising career ahead. He was earning Rs. 12,000/- per month and had a permanent job. Tribunal without correctly appreciating the facts of the case, assessed the income at Rs. 7,000/- per month. While computing compensation towards loss of dependency, future prospects were not added. It is settled in law that 50% of the earnings of deceased has to be added to the assessed earning capacity while computing loss of dependency. Further, the Tribunal also erred in taking the age of youngest among the claimants while applying the multiplier. He relied upon the judgment of the Hon''ble Supreme Court in the case of Munna Lal Jain and Others Vs. Vipin Kumar Sharma and Others and submitted that correct multiplier in the instant case ought to have been applied by considering the age of the deceased. He further submitted that no compensation is awarded towards loss of love and affection. Accordingly, he prayed for allowing this appeal.

Per contra, learned Counsel appearing for the insurer supporting the impugned judgment and award submitted that the quantum of compensation awarded is just and reasonable. He specifically adverted to Ex. P22 & 23- copies of wage registers and Ex. P11- a letter dated 28.2.2011 written by the employer of the deceased stating that the salary of deceased with effect from 1.4.2011 would be Rs. 10,000/- per month. He submitted that Ex. P22 and 23 do not co-relate with Ex. P11. Consequently, the earning capacity of deceased cannot be construed as Rs. 10,000/- per month. Tribunal rightly disbelieving Ex. P11 has assessed the earning capacity at Rs. 7,000/- per month, which does not call for any interference. Accordingly, he prayed for dismissal of this appeal.

We have carefully considered the submissions of the learned Counsel for the parties and perused the records.

Occurrence of accident and liability of insurer are not in dispute. Ex. P21 dated 18.1.2008 is the appointment letter. Ex. P13 is the employee badge, which shows that deceased was working as "Q.C. Incharge". Learned Counsel for the insurer is right in his submission that there is variance in the wage register Ex. P22 and 23 and Ex. P11- letter conveying promotion and enhancement of salary to Rs. 10,000/- per month. In the absence of incontrovertible evidence with regard to earning capacity, in our view, the Tribunal was correct in assessing the earning capacity at Rs. 7,000/- per month. Letter of appointment, letter conveying promotion, employee badge, letter of authorisation by employer to one of its employees to give evidence before Court are all documents relating to the employment of the deceased. Ex. P11 is a letter dated 28.2.2011, which reveals that the deceased was promoted to the post of Purchase Manager. Ex. P16 is a letter of authorization by the employer authorising P.W. 2 to tender evidence before the Tribunal. All these documents read in correct sequence lead us to infer that the deceased had a permanent employment. However, in view of certain discrepancies, in our view, the Tribunal was right in assessing the earning capacity of deceased at Rs. 7,000/- p.m. independent of wage register extracts. Hence, respectfully following the judgment of the Hon''ble Supreme Court in the case of Munna Lal, we are of the view that 50% of his earnings will have to be added towards future prospects. Deceased was aged 24 years at the time of death. Therefore, the correct applicable multiplier is 18. Tribunal has awarded Rs. 20,000/- towards medical expenses and Rs. 25,000/- towards funeral expenses and the same remain undisturbed. With these inputs, the compensation is reassessed as follows:

In the result, we pass the following:

"i) The appeal is allowed in part;

ii) The judgment and award dated 14.3.2013 in M.V.C. No. 1400/2011 on the file of the I Addl. District and Sessions Judge and MACT-II, Belgaum, is modified by awarding an enhanced compensation of Rs. 5,54,000/-;

iii) The respondent No. 2/insurer is directed to deposit the enhanced compensation with interest at 6% p.a. from the date of petition till the date of deposit within a period of four weeks from the date of receipt of copy of this order;

iv) The disbursement of compensation shall be in terms of judgment and award of the Tribunal. No costs."