Imam vs Vithal

A.S. Pachhapure, J.—The appellants dissatisfied with the amount of compensation granted by the Tribunal for the death of Noorjan and Umar, and injuries to Iqbal in the motor vehicle accident have approached this Court in these appeals, seeking enhancement.

The facts relating to the accident are not in dispute. Iqbal [injured] and, Noorjan and Umar [deceased] were proceeding on the motorcycle bearing reg. No. KA-28/E-7580 and were hit by goods vehicle bearing reg. No. KA. 28/B-1570. In he said accident, Noorjan and Umar died on the spot, whereas Iqbal sustained injuries and therefore, the claim petitions were filed in MVC Nos. 130/2012, 132/2012 and 131/2012 respectively. The cases were clubbed. Common evidence was recorded and the Tribunal awarded a sum of Rs. 3,76,000-00 in MVC No. 130/2012, Rs. 2,65,600-00 in MVC No. 131/2012 and Rs. 1,80,000-00 in MVC No. 132/2012. Dissatisfied with the sum awarded, the present appeals are filed.

I have heard learned counsel for both the parties.

The point that arises for my consideration is;

"Whether the appellants are entitled for enhancement of compensation? If so, to what extent?" 5. Learned counsel for the appellants would submit that in the case of death of Umar, who was 5 years old, a paltry sum of Rs. 1,80,000-00 has been granted. Therefore, he seeks reasonable compensation for the death of Umar.

It is also his submission that in the case of death of Noorjan, the husband and the sons are the claimants and the Tribunal has deducted 1/4th towards personal expenses of the deceased as there are 4 claimants. It is his submission that the assessment of income is on the lower side and needs enhancement. He further submits that the compensation on each of the heads is on the lower side and requires enhancement.

In the injury case, he submits that the disability and the income assessed is on the lower side and reasonable compensation has not been granted on each of the heads. On these grounds, he has sought for enhancement of compensation in all the cases

On the other hand, learned counsel for the respondents supports the Judgment and Award. They submit that just and reasonable compensation has been granted by the Tribunal and no grounds are made out to call for interfere in the impugned Judgment and Award.

MFA No. 32976/2013 J-In MVC 130/2012]: Noorjan [deceased] i.e., the wife of the 1st appellant died in the accident. She was 48 years old at the time of the accident. Her income has been assessed by the Tribunal at Rs. 3,000-00 p.m. Though she is the wife, her service will have to be valued in terms of money. Even for a labourer a sum of Rs. 5,250-00 will be considered as the income per month for the accident in the year 2000. Therefore, her services will have to be valued at Rs. 5,250-00.

So far as the claimants are concerned, the 1st appellant is the husband, whereas appellant Nos. 2 to 4 are the sons. Appellant No. 2 was 30 years old, appellant No. 3 was 28 years old and appellant No. 4 was 24 years old. Their avocation is shown as agriculture in the cause title of the claim petition itself. As they have attained the age of majority and pursued their avocation, they cannot be dependents.

It is relevant to note that the concept of compensation is a matter based on dependency. Even under the heads of compensation, the first head wherein the compensation is considered is loss of dependency. The word "dependency" itself would indicate that it is only the dependent, who could make a claim for compensation. Though the sons are legal representatives under the provisions of personal law and are the legal representatives even in the definition provided to the provisions of Motor Vehicles Act, it is not only the representation of the estate of the deceased, but in addition, it is the dependency, which is relevant for consideration. The sons who have attained the age of majority and who are not dependent have no right to claim for compensation except for loss of love and affection and other conventional heads.

Learned counsel for the appellants submits that deduction if sons are excluded will have to be 1/3rd and therefore, he submits that the personal expenses of the sons of the deceased will have to be considered only at 1/3rd. It is relevant to note that the deceased is the wife and so far as the husband is concerned, he can still earn for his livelihood. There is no much dependency except the assistance that was rendered by the wife in the day-to-day life. If the husband dies and wife is the claimant, she will be without any sort of security and to survive in the society, more protection is essential and therefore, in such circumstances, 1/3rd could be taken as personal expenses of the deceased. But, in my considered opinion, when a claim is by the husband for the death of his wife, the dependency is not to that extent. Hence, it is appropriate to deduct one half towards personal expenses of the deceased.

The income is assessed by the Tribunal at Rs. 3,000-00 p.m. As held, it is Rs. 5,250-00 p.m. and adopting the multiplier of 13, the net compensation towards loss of dependency would be;

"Rs. 5,250/2 x 12 x 13 = Rs. 4,09,500-00" A sum of Rs. 3,21,000-00 was paid. The 1st appellant is entitled to an additional sum of Rs. 58,500-00 towards loss of dependency. The Tribunal has granted only a sum of Rs. 10,000-00 towards loss of love and affection. There are 3 sons and each of them are entitled to a sum of Rs. 10,000-00 each, totally Rs. 30,000-00 towards loss of love and affection and Rs. 20,000-00 towards loss of consortium. Deducting a sum of Rs. 10,000-00, they are entitled to a sum of Rs. 40,000-00. Therefore, the appellants are entitled to a sum of Rs. 40,000-00 as additional compensation on both these heads. Only a sum of Rs. 5,000-00 is granted towards funeral expenses. An additional sum of Rs. 10,000-00 would be reasonable. Thereby the net compensation payable to the appellant would be Rs. 58,500-00 towards loss of dependency, Rs. 40,000-00 towards loss of consortium and loss of love and affection, Rs. 10,000-00 towards funeral expenses. Therefore, the appellants are entitled to a sum of Rs. 1,08,500-00 with interest at 9% p.a. from the date of the petition till its payment, in addition to the compensation awarded by the Tribunal.

MFA No. 32978/13 [In MVC 132/12]: Umar [deceased] was 5 years old at the time of the accident. The claimants are the parents of the deceased. The Tribunal has granted a sum of Rs. 1,80,000-00 towards global compensation. Taking into consideration the age of the deceased, in the light of different Judgments of the superior courts, I think it is just and proper to grant a sum of Rs. 4,50,000-00. Therefore, appellants are entitled to a sum of Rs. 2,70,000-00 [Rs. 4,50,000 - Rs. 1,80,000 = Rs. 2,70,000-00] with interest at 9% p.a. from the date of the petition till its payment, in addition to the compensation awarded by the Tribunal.

MFA No. 32977/13 [MVC 131/12]: Iqbal-the appellant has suffered fracture of 4 bones. The perusal of the injury certificate would reveal that he has suffered fracture of frontal bone, fracture of greater wing of sphenoid on right side, fracture of lamina papyracea on right side, fracture of zygomatic arch and other injuries. Ex. P8 is the injury certificate. Only a sum of Rs. 10,000-00 has been awarded towards compensation for pain, suffering and mental agony. As he has suffered head injury and 4 fractures, I think it is just and proper to grant an additional sum of Rs. 40,000-00 towards pain, suffering and mental agony.

The Tribunal has not granted any compensation separately towards loss of income during treatment. Taking into consideration the treatment taken and the period of treatment, to resume normal duty, it requires 4 months. Therefore, a sum of Rs. 21,000-00 is awarded towards loss of income during the period of treatment. Furthermore, he is entitled to a sum of Rs. 7,500-00 towards attendant charges, food and nourishment. He has suffered disfiguration because of the fracture of frontal bone i.e., a dent on the frontal portion. Hence, he is entitled to a sum of Rs. 10,000-00 towards loss of disfiguration.

Towards the disability, the Tribunal has assessed it at 10%. The Tribunal had an opportunity to observe the appellant/claimant. No grounds are made out to enhance the percentage of disability arrived at by the Tribunal. Accepting the disability at 10% and the income at Rs. 5,250-00 p.m., the total loss of future earning would be;

"Rs. 5,250 x 12 x 16 x 10/100 = Rs. 1,00,800-00" Deducting a sum of Rs. 57,600-00 awarded by the Tribunal, the appellant would be entitled to a sum of Rs. 43,200-00 towards loss of future earning, thereby the additional compensation payable to the appellant is as under:

The appellant is entitled to the aforesaid sum with interest at 9% p.a. from the date of the petition till its payment, in addition to the compensation awarded by the Tribunal. Therefore, the point is answered accordingly.

The appeals are allowed in part. The appellants in MFA No. 32976/13 [MVC 130/12] are entitled to a sum of Rs. 1,08,500-00 with interest at 9% p.a. from the date of the petition till its payment in addition to the compensation awarded by the Tribunal. Out of the enhanced compensation, a sum of Rs. 1,00,000-00 shall be paid to the 1st appellant and the remaining amount shall be distributed to the other appellants.

The appellants in MFA No. 32978/13 [MVC 132/12] are entitled to a sum of Rs. 2,70,000-00 with interest at 9% p.a. from the date of the petition till its payment in addition to the compensation awarded by the Tribunal.

The appellant in MFA No. 32977/13 [MVC 131/12] is entitled to a sum of Rs. 1,21,700-00 with interest at 9% p.a. from the date of the petition till its payment in addition to the compensation awarded by the Tribunal.