Jayalakshmi and Others vs Vikas Mohan Dupthe and Others

N.K. Patil, J.—This appeal is by the claimants directed against the impugned judgment and award dated 22nd January 2013 passed in M.V.C. No. 4278/2011 on the file of the XII Additional Small Causes Judge and Member, M.A.C.T., Bangalore (SCCH-8) (hereinafter referred to as ''Tribunal'' for short). The Tribunal by its impugned Judgment and Award, awarded a sum of Rs. 4,21,000/- with interest at the rate of 6% p.a. from the date of petition till the date of realization on account of the death of the deceased Shankarappa in the road traffic accident. The claimants have filed this appeal on the ground that the quantum of compensation and the rate of interest awarded by the Tribunal is inadequate and requires enhancement.

The brief facts of the case on hand are that, the appellant No. 1 is the wife and appellant No. 2 is the son of the deceased. They have filed a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs. 25,00,000/- with interest and costs of the petition, against the respondents on account of untimely death of the deceased in the road traffic accident contending that the deceased was aged between 51 years and 55 years and an agriculturist and also businessman, running Bricks Industry. He was the only earning member of the family. Be that as it may, that on 11.12.2011 at about 3.50 p.m. a Qualis Car bearing No. KA-05/MA-4714 driven by its driver on Hosakote - Kadugudi Main Road in a direction from Hosakote to Kadugudi at high speed and in a rash and negligent manner in front of Reddy Seenappa''s Garden land near Safal Market, came and dashed against the hind portion of the motor cycle bearing No. KA-53/L-6521 ridden by the deceased. Due to the impact, the deceased Shankarappa was thrown into the road side drainage and thereby sustained severe head and other injuries all over the body and he succumbed to the same on the way to the Government Hospital. On account of untimely death of the deceased in the road traffic accident, wife has lost her companion and son has lost love and affection, inspiration and guidance of father. The social and economic condition of the family is affected. Taking all these aspects into consideration, they filed a claim petition under Section 166 of the M.V. Act against the respondents before the Tribunal.

The said matter had come up for consideration before the Tribunal. The Tribunal in turn after due appreciation of the oral and documentary evidence, taken the income of the deceased as Rs. 4,500/- p.m. and deducted 1/3rd towards personal expenses of the deceased and by applying the multiplier ''11'' has allowed the same in part by awarding a sum of Rs. 3,96,000/- towards loss of dependency, Rs. 25,000/- towards conventional heads. In all, the Tribunal awarded a sum of Rs. 4,21,000/- with interest at 6% p.a. from the date of petition till realization. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants herein have presented this appeal seeking enhancement of compensation.

It is the submission of the learned Counsel appearing for the appellants Sri. Shripad V. Shastri at the outset that, the Tribunal has committed an error and material irregularity and also failed to consider the oral and documentary evidence available on record and assessed the income of the deceased at only Rs. 4,500/- per month. The accident occurred on 11.12.2011 and the deceased was aged between 51 years and 55 years, only earning member of the family, hale and healthy prior to the accident, a committed entrepreneur and also an agriculturist and running brick industry by availing loan of Rs. 25.00 lakhs from the Bank. The Tribunal ought to have taken into consideration the age, avocation and profession of the deceased and assessed the income of the deceased atleast at Rs. 20,000/- per month and out of which 1/3rd may be deducted towards personal expenses and by applying the appropriate multiplier of ''11'', award reasonable compensation towards loss of dependency. Further pointed out that the Tribunal has erred in not awarding reasonable compensation towards conventional heads and also erred in awarding interest at only 6% p.a. from the date of petition till realization. The accident occurred in the year 2011 and therefore, the interest may be awarded at 9% to 10% p.a. by modifying the impugned Judgment and Award passed by the Tribunal.

As against this, the learned Counsel appearing for the 2nd respondent - insurer Sri. H.S. Lingaraj, inter-alia contended and sought to substantiate stating that the impugned Judgment and award passed by the Tribunal is after due consideration of oral and documentary evidence available on record. Therefore, interference by this Court is not called for. Further, the appellants have not produced any authenticated documents to show the exact income of the deceased nor produced any credible documents. In the absence of the credible documentary evidence, the Tribunal is justified in taking the income of the deceased at Rs. 4,500/- per month and deducting 1/3rd towards personal expenses of the deceased and awarding reasonable compensation. However, after going through the records and in the light of the judgments of Apex Court and this Court he submitted that reasonable compensation may be awarded towards loss of dependency and conventional heads, in accordance with law.

After careful consideration of the submission of the learned Counsel appearing for both the parties and after perusal of the impugned judgment and award passed by the Tribunal, the only point that arises for consideration is:

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

The occurrence of the accident and the resultant death of the deceased in the road traffic accident that occurred on 11.12.2011 are not in dispute. It is also not in dispute that the deceased was aged between 51 years and 55 years, agriculturist and running brick industry and the claimants/appellants are none other than wife and son of the deceased and wife has lost her companion at the young age of 46 years, son has lost love and affection, inspiration and guidance. Further, as per the evidence of PW-1, the deceased was running brick industry and has availed handsome loan from the Bank to establish brick industry. The appellants have produced Ex. P16 - Bank Statement, Ex. P17 -Statement of Account and Ex. P15 - RTC Extracts. What emerges from the records is that the deceased was an agriculturist and also running a brick industry. After careful consideration and perusal of the said documents, nothing has been shown in respect of permanent source of income by the deceased and continuous payment towards installment of loan availed from the bank and no entry as such has been made, except Rs. 2.00 lakhs, Rs. 1.00 lakh and no material is forthcoming before this Court. So far as agricultural land is concerned, the same would continue to the benefit of the claimants in the absence of the supervision of the deceased and it emerges from the records that the industry is continued by the son of the deceased.

Taking all these aspects into consideration and having regard to the age, avocation of the deceased 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. If we deduct 1/3rd towards his personal expenses i.e. Rs. 3,333/- per month, the remaining net income towards the contribution on the part of the deceased to the family would be Rs. 6,667/- per month. The deceased was aged between 51 years and 55 years, agriculturist and entrepreneur running brick industry, we re-determine the compensation towards loss of dependency at Rs. 8,80,044/- (Rs. 6,667/- x 12 x 11), and accordingly awarded.

In the light of the judgments of the Apex Court and this Court in host of judgments and as rightly submitted by the learned Counsel appearing for the appellants, wife has lost her companion, son has lost love and affection, inspiration and guidance and also the facts and circumstances of the case stated supra, we deem it fit to award Rs. 1,00,000/- towards loss of consortium, Rs. 50,000/- towards loss of love and affection at the rate of Rs. 25,000/- each, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses. In all, the appellants/claimants are entitled to a total compensation of Rs. 10,80,044/- as against Rs. 4,21,000/- awarded by the Tribunal. There would be enhancement of Rs. 6,59,044/-.

As rightly contended by the learned Counsel appearing for the appellants, the rate of interest awarded by the Tribunal is also on the lower side. Following the hosts of judgments of Apex Court and this Court, we award interest at the rate of 9% p.a. on the enhanced compensation from the date of petition till realization.

Having regard to the facts and circumstances of the case referred above, the instant appeal filed by the appellants is allowed in part. The impugned Judgment and Award passed by the Tribunal dated 22nd January 2013 passed in M.V.C. No. 4278/2011 on the file of the XII Additional Small Causes Judge and Member, M.A.C.T., Bangalore is hereby modified awarding Rs. 6,59,044/- with interest at 9% p.a. from the date of petition till realization in addition to the compensation awarded by the Tribunal.

The 2nd respondent - Insurer herein is directed to deposit the enhanced compensation amount with interest at 9% p.a. from the date of petition till realization, within a period of three weeks from the date of receipt of copy of this judgment and award.

Out of the enhanced compensation of Rs. 6,59,044/-, Rs. 5,00,000/- with proportionate interest shall be invested in Fixed Deposit in the name of the appellant No. 1 - wife of the deceased in any Nationalized or Scheduled or Grameena Bank, for a period of 10 years and renewable for 5 years and she is entitled to withdraw the periodical interest accrued on it.

Remaining sum of Rs. 1,59,044/- with interest shall be released in favour of the appellant No. 1, immediately on deposit by the 2nd respondent - Insurer.

Draw the award, accordingly.