D.P. Papegowda and Others vs Mahesha C. and Others

N.K. Patil, J.—Though this appeal is posted for orders, it is taken up for final disposal with the consent of the learned counsel appearing for the parties.

This appeal by the claimants is directed against the impugned judgment and award dated 16th October 2014 passed in MVC No. 1278/2013 on the file of the Principal Judge, Court of Small Causes, MACT, Mysore as a Presiding Officer, MACT, Mysore (hereinafter referred to as ''Tribunal'' for short), for enhancement of compensation.

The Tribunal by its judgment and award has awarded a sum of Rs. 6,05,600/- under different heads after deducting 20% towards contributory negligence on the part of the deceased with interest at 6% per annum from the date of petition till the date of deposit, on account of the death of the deceased late Kumari. Padmmi, in the road traffic accident.

In brief, the facts of the case are:

"The 1st and 2nd appellants are parents and 3rd appellant is unmarried sister of the deceased and they have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation on account of the death of the deceased in the road traffic accident, contending that, on 11.11.2013 at 6.45 p.m when the deceased was riding the Honda Pleasure motorcycle bearing Registration NO.KA-11-W-4899 and when she reached in front of Rudset, Hinkal, Mysore at that time, the Tavera Car bearing Registration NO.KA-09-Z-3916 came in a rash and negligent manner with high speed from the opposite side and dashed against the said motorcycle. Due to impact deceased sustained injury on all over her body. Immediately she was shifted to B.M Hospital, Mysore and she succumbed to fatal injuries at 10.15 p.m on the same day. Due to the death of the deceased, the appellants have suffered mental agony and they have spent amount for transportation of the dead body, funeral and obsequies of the deceased. It is the further case of the appellants that, the deceased was aged about 20 years at the time of accident, hale and healthy and she was a very bright student and after completion of her Diploma in Electronics and Communications in the year 2011-12 she was a student of Final Year B.E and was conducting Tuition and earning more than Rs. 10,000/- p.m. and if she had been appointed, she would have got minimum salary between Rs. 25,000/- and Rs. 35,000/- p.m. She was the elder daughter to her parents and being the elder daughter, she had responsibility and out of income earned through tuition, she use to spend the entire amount to the welfare of the family and accident occurred on account of rash and negligent driving by the driver of the car. Due to her untimely death, they suffered socially and economically. The said claim petition had come up for consideration before the Tribunal. The Tribunal after appreciating the oral and documentary evidence and other material available on record has allowed the claim petition in part and awarded the compensation of Rs. 6,05,600/- under different heads with interest at 6% p.a., from the date of petition till the date of deposit after deducting 50% towards personal expenses of deceased and 20% towards contributory negligence fixed on the part of the deceased. Not being satisfied with the compensation awarded by the Tribunal, the appellants have presented this appeal, for enhancement of compensation and to set aside the contributory negligence."

The submission of Sri Mahadeva Swamy P, learned counsel appearing for the appellants is that, the Tribunal has erred in not awarding reasonable compensation towards loss of dependency and other conventional heads and not considering the evidence of PW2 and also contended that the deceased Kumari Padmmi after completion of her Diploma in Electronics and Communication was a student of final year B.E and a brilliant student and used to take tuitions and from that she was earning Rs. 10,000/- p.m and she used to spend that money for welfare of the family. Being the eldest daughter of the family, the parents and sister have lost their love and affection, security and they have suffered mental agony. Another daughter is prosecuting her studies. Tribunal has failed to assess the just and reasonable income of the deceased and the income assessed by the Tribunal is on the lower side since the accident has occurred on 11.11.2013 and further he submitted that in the light of judgment of Apex court and this Court, the income of the deceased may be reassessed at Rs. 30,000/- p.a including future prospects. The Tribunal has rightly applied multiplier of ''18''. The Tribunal has erred in not awarding reasonable compensation towards injury, pain and suffering, medical expenses, conveyance, nourishing food and attendant charges, loss of amenities, comfort and happiness and loss of future income.

Further, the Tribunal has erred in fixing 20% contributory negligence on the part of the deceased which is contrary to the oral and documentary evidence as there is no negligence on the part of the deceased. Therefore, in the light of judgment of Apex Court and this Court, the impugned judgment and award passed by the Tribunal is to be modified by awarding just and reasonable compensation under all heads, fixing entire negligence on the part of the driver of the offending vehicle.

Per contra, Sri. B. Pradeep, learned counsel appearing for R2 inter alia contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper and is passed after considering the oral and documentary evidence and interference by this Court is not called for. However, he submitted that the impugned judgment and award passed by the Tribunal may be modified in the light of Judgment of Apex Court in accordance with law.

After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arise for consideration is:

"Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"

It is not in dispute that the deceased died in the road traffic accident. Further it is not in dispute that, the deceased was aged about 20 years at the time of accident, hale and healthy and looking after the welfare of the appellants. The accident has occurred on 11.11.2013 and the deceased had completed Diploma in Electronics and Communication in the year 2011-12 and was a student of final year B.E and was conducting tuition. She was very brilliant student and was active in other curricular activities of the college and she had taken all the responsibility of the family being the eldest daughter of the family. She was earning more than Rs. 10,000/- from tuition and if she had been appointed she would have got more than Rs. 25,000/- p.m. Due to her un-timely death, claimants have lost their only breadwinner and facing great mental shock and monetary loss. The claimants are none other than the parents and sister of the deceased, who have lost their future security due to her untimely death. Having regard to all these aspects, we are of the view that the appellants have made out a case for enhancement of reasonable compensation under different heads. Having regard to the age, avocation and year of accident, we can safely re-assess the income of the deceased at Rs. 16,000/- per month, to meet the ends of justice as against the income assessed by the Tribunal. Out of it, if 50% is deducted towards the personal expenses of the deceased, it comes to Rs. 8,000/-. In the light of the decision in SARLA VERMA''S CASE [2009 ACJ 1298], the appropriate multiplier applicable is 18. Accordingly, the appellants are entitled towards loss of dependency at Rs. 17,28,000/- (Rs. 8,000/- x 12 x 18).

Considering the facts and circumstances of the case that, the parents have lost their daughter at an young age and future security, and the sister has lost the love and affection, inspiration and guidance in life and we deem it fit to award Rs. 25,000/- towards loss of estate, Rs. 75,000/- towards loss of love and affection, and Rs. 25,000/- towards funeral and transportation expenses. In all, the claimants are entitled for Rs. 18,53,000/-.

Regarding contributory negligence fixed by the Tribunal at 20% on the part of the deceased, it can be seen that the Tribunal after critical evaluation of the oral and documentary evidence available on file, particularly Ex. P6 sketch and evidence of RW1 has fixed contributory negligence at 20% on the part of the deceased. The reasoning given by the Tribunal at Para-33 & 34 of its judgment is just and proper, as the same is passed on the basis of documentary evidence available on file. Hence interference by this Court is not called for and we uphold the contributory negligence fixed on the part of the deceased at 20%.

Therefore from the total compensation of Rs. 18,53,000/- if 20% towards contributory negligence on the part of the deceased is deducted, it comes to Rs. 14,82,400/- as against Rs. 6,05,600/- awarded by the Tribunal.. The interest awarded by the Tribunal at 6% is on lower side therefore in the light of judgment Apex Court & this court in catena of judgments, we award 9% interest per annum on enhanced compensation.

Having regard to the facts and circumstances of the case as stated above, appeal is allowed in part. The impugned judgment and award passed by the Tribunal dated 16th October 2014 in MVC No. 1278/2013 is hereby modified. The total compensation payable comes to Rs. 14,82,400/- as against Rs. 6,05,600/- awarded by the Tribunal. There will be an enhancement of Rs. 8,76,800/- with 9% interest per annum.

The 2nd respondent is directed to deposit the enhanced compensation of Rs. 8,76,800/- with interest at 9% p.a., from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment.

Out of the enhanced compensation of Rs. 8,76,800/- a sum of Rs. 2,50,000/- each with proportionate interest shall be invested in the Fixed Deposit in any Nationalized/Scheduled/Gramena Bank, in the name of the 1st and 2nd appellants for a period often years and renewable for another ten years, with liberty to them to withdraw the periodical interest accrued on it.

Out of the remaining enhanced compensation Rs. 2,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized/Scheduled/Gramena Bank, in the name of the 3rd appellant for a period of ten years and renewable for another five years, with liberty to her to withdraw the periodical interest accrued on it.

The remaining Rs. 1,76,800/- with proportionate interest shall be released in favour of 1st and 2nd appellants immediately, on deposit by the Insurer in equal proportion.

Draw the award, accordingly.