Francis Xavier D''Souza and Others vs Madhu S. and Others

N.K. Patil, J.—This is claimants'' appeal filed against the impugned judgment and award dated 30th August 2013 passed in MVC No. 57/2012 on the file of the Principal Senior Civil Judge and Member, MACT, Mangalore (hereinafter referred to as ''Tribunal'' for short), for enhancement of compensation.

The Tribunal by its judgment and award has awarded a sum of Rs. 4,19,000/- under different heads with interest at 6% per annum from the date of petition till the date of deposit, as against the claim of the claimants for a sum of Rs. 20,00,000/-, on account of the death of the deceased late Sri Rithesh D''Souza in the road traffic accident.

In brief, the facts of the case are:

The 1st and 2nd appellants are parents of the deceased and they have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation of Rs. 20,00,000/- on account of the death of the deceased in the road traffic accident, contending that, when the deceased Rithesh D''Souza on 14.12.2011 at 18.35 hours, was riding a motorcycle No. KA-19-R-1233, on N.H. 66, near Pavanje College (village), Mangalore Taluk, the driver of a lorry No. KA-20-A-5691 drove the same negligently and dashed the same against the motorcycle, causing accident, resulting in injuries to the deceased. Immediately he was shifted to Srinivas Hospital, Mukka, Mangalore, but unfortunately, he succumbed to the injuries. The appellants have spent huge amount towards transport and funeral expenses. It is the case of the appellants that the deceased was the only sole bread earning member and claimants were dependent on the deceased. It is the further case of the appellants that, the deceased was aged about 21 years at the time of accident, hale and healthy and working as Event Manager and D.J., owning and operating DJ musical system and earning more than Rs. 30,000/- p.m. and contributing the entire income to the welfare of his family. Due to his untimely death, they suffered socially and economically and sudden death of the deceased has caused great hardship to his family members. The said claim petition had come up for consideration before the Tribunal. The Tribunal after appreciating the oral evidence of PW1 and documentary evidence at Exs. P1 to P9 and other material available on record, has allowed the claim petition in part and awarded the compensation of Rs. 3,24,000/- towards loss of dependency, Rs. 30,000/- towards loss of estate, Rs. 50,000/- towards loss of love and affection, Rs. 15,000/- towards Funeral and Obsequies. In all Rs. 4,19,000/- is awarded, with interest at 6% p.a., from the date of petition till the date of deposit. Not being satisfied with the compensation awarded by the Tribunal, the appellants have presented this appeal, for enhancement of compensation.

The submission of the learned counsel appearing for the appellants at the outset is that, the Tribunal has failed to assess the just and reasonable income of the deceased and the income of Rs. 4,000/- per month assessed by the Tribunal is on the lower side since the accident has occurred on 14.12.2011 and he was aged about 21 years and only son to his parents. The Tribunal has not considered the income of the deceased properly as he was Event Manager and earning more than Rs. 30,000/- p.m. and he is contributing Rs. 15,000/- towards welfare of the family. Taking all these aspects, the income of the deceased may be reassessed at least between Rs. 10,000/- and 12,000/- p.m. and 50% may be deducted towards personal expenses. Further, he relied upon the judgments of Apex Court in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, and Munnalal Jain V/S. Vipin Kumar Sharma in CA 4497/2015 dated 15.5.2015 and submitted that age of the deceased may be taken into consideration for adopting multiplier and deduct 50% towards personal expenses of the deceased. The Tribunal also erred in not awarding reasonable compensation towards other conventional heads. Further he submitted that the rate of interest awarded at 6% per annum is also on the lower side since the accident is of the year 2011 and the same may be enhanced to 9% to 10% per annum. Therefore, the impugned judgment and award passed by the Tribunal is liable to be modified.

Per contra, the learned counsel appearing for the Insurer inter alia contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper. The Tribunal has rightly assessed income of the deceased at Rs. 4,000/- p.m. as the appellants have not produced any documents to show the income of the deceased and taking into consideration the materials on record, the Tribunal rightly assessed the income. It 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 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 21 years at the time of accident, hale and healthy and looking after the welfare of the appellants. The claimants are none other than the parents of the deceased, who have lost their future security due to his untimely death. He was Event Manager and was earning more than Rs. 30,000/-p.m. Having regard to the age, avocation and year of accident, we can safely re-assess the income of the deceased at Rs. 10,000/- 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. 5,000/-. The claimants have stated that the appellants are aged about 46 and 43 years respectively but that the Tribunal after critical evaluation of the oral and documentary evidence available on file particularly the DL and Ration card has re-assessed the age of the claimants as 62 and 57 years respectively. Thereafter the Tribunal has considered the age of the younger parents, mother and adopted the multiplier of ''9''. The same being just and proper. We accept the same, having regard to the facts and circumstances of the case. Accordingly, the appellants are entitled towards loss of dependency at Rs. 5,40,000/- (Rs. 5,000/- x 12 x 9) as against Rs. 4,19,000/- awarded by the Tribunal.

Considering the facts and circumstances of the case that, the parents have lost their son, his love and affection and future security in life, we deem it fit to award Rs. 25,000/- towards loss of estate, Rs. 50,000/- towards loss of love and affection at the rate of Rs. 25,000/- to each appellant and Rs. 25,000/- towards funeral and transportation expenses. In all, the claimants are entitled for Rs. 11,80,000/- as against Rs. 4,19,000/- awarded by the Tribunal.

As rightly pointed out by the learned counsel appearing for the appellants that the rate of interest awarded by the Tribunal at 6% is on the lower side as the accident occurred in the year 2011 and in the light of catena of Judgments, we deem it fit to 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 30th August 2013 in MVC No. 57/2012 is hereby modified. The total compensation payable comes to Rs. 11,80,000/- as against Rs. 4,19,000/- awarded by the Tribunal. There will be an enhancement of Rs. 7,61,000/- with 9% interest per annum.

The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 7,61,000/- with interest at 9% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment.

Out of the enhanced compensation, Rs. 75,000/- each with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the 1st and 2nd appellants/mother and father for a period of five years and renewable for another five years, with liberty to them to withdraw the interest accrued on it periodically.

The remaining Rs. 71,000/- with proportionate interest shall be released in favour of the 1st and 2nd appellants in equal proportion, immediately, on deposit by the 2nd respondent-Insurer.

Draw the award, accordingly.