Jayanthi and Others vs Lissy Thomas and Others

N.K. Patil, J.

Though this matter is posted today for orders, with the consent of learned counsel appearing for both the parties, the same is taken up for final disposal.

This appeal by the appellants-claimants is directed against the impugned judgment and award dated 07/02/2011, passed in MVC No. 48/2010, by the Presiding Officer, Fast Track Court, Udupi, (hereinafter referred to as ''Tribunal'' for short), for enhancement of compensation, on the ground that, a sum of Rs. 4,74,683/- awarded by the Tribunal under different heads with interest at 6% per annum from the date of petition till payment, as against the claim Rs. 20,70,500/-, on account of the death of the deceased Sri. Govinda Naika, in the road traffic accident is inadequate.

In brief, the facts of the case are:

"The appellants are the wife, three minor children and mother of the deceased. They filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents, on account of the death of the deceased in the road traffic accident, contending that, on 18.4.2009 at about 3.30 p.m. deceased was traveling as a pillion rider in bike bearing Reg. No. KL.14.F.9030 which was driven by one Devappa Naik, towards Kasargod side on Muliyaru-Kasargod Main road on an up gradient towards Kasargod, at that time, the driver of the stage carriage bus bearing Reg. No. KL.13.F.1899 came with high speed on down gradient road, as a result, bus went to the right side of the road and the right front rear portion directly hit the motor bike. On account of which, the pillion rider, deceased fell on tar road and the rider of the bike fell on mud portion of the road along with the bike. The right front wheel of the bus ran over the body of deceased, pillion rider. Immediately, he was taken to Unity Hospital, Mangalore, but inspite of best treatment, he died on the same day."

It is the further case of the appellants that, deceased was aged about 38 years, hale and healthy prior to the accident, working as Mason and earning Rs. 350/- per day and looking after the welfare of the family by contributing his entire earnings to the family. Due to his untimely death, wife has lost her husband, children are deprived of the love and affection, guidance and security of their father and mother has lost her son, suffered financial loss as they have lost their bread earner, apart from mental shock and agony.

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 file, has allowed the claim petition in part and awarded the compensation of Rs. 4,74,683/- under different heads with interest at 6% p.a., from the date of petition till payment.

Being dis- satisfied with the quantum of compensation awarded by the Tribunal, the appellants have presented this appeal, for enhancement of compensation.

We have heard the learned counsel appearing for the appellants and learned counsel for Insurer.

The submission of the learned counsel appearing for the appellants, at the outset is that, the income of the deceased assessed by the Tribunal at Rs. 3,000/- per month is on the lower side and is liable to be enhanced, on the ground that, deceased was a Mason by profession and dependants are his wife, three minor children and mother. Further, he submits that, the compensation awarded by the Tribunal towards conventional heads is on the lower side and is liable to be enhanced. Therefore, he submitted that the impugned judgment and award is liable to be modified by awarding reasonable compensation towards loss of dependency and towards conventional heads.

As against this, learned counsel Sri. C.R. Ravishankar, appearing for the Insurer, inter-alia, contended and substantiated that the compensation awarded by the Tribunal is just and proper and after due appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference.

After hearing learned counsel appearing for the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:

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

The occurrence of the accident and the resultant death of the deceased are not in dispute. Further, it is not in dispute that deceased was aged about 38 years, hale and healthy prior to the accident, working as Mason and the dependants are his wife, three minor children and mother. On account of untimely death of the deceased, the appellant No. 1, wife, aged about 33 years has lost her husband, appellant Nos. 2 to 4, children who are aged about 15, 14 and 8 years are deprived of the love and affection, guidance and security of their father and mother has lost her son. Further, it emerges that, the Tribunal has assessed the income of the deceased at Rs. 3,000/- per month, which is on the lower side and it needs to be enhanced. Having regard to the age and occupation of the deceased and the year of accident, we re-assess his income at Rs. 5,000/- per month instead of Rs. 3,000/- per month as assessed by the Tribunal. Out of which, if 1/4th ( Rs. 1,250/-) is deducted towards the personal and living expenses of the deceased since there are five dependants, his net income comes to Rs. 3,750/- per month. The appropriate multiplier applicable is ''15'' since the deceased was aged about 38 years as rightly adopted by the Tribunal and we accept the same. Therefore, we re-determine the loss of dependency at Rs. 6,75,000/- ( Rs. 3,750/- x 12 x 15) instead of Rs. 4,05,000/- as awarded by the Tribunal and accordingly, it is awarded.

Having regard to the facts and circumstances of the case as stated above, we award a sum of Rs. 50,000/- towards loss of consortium, Rs. 50,000/- towards loss of love and affection at the rate of Rs. 10,000/- each to the appellant Nos. 1 to 5, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses instead of Rs. 40,000/- awarded by the Tribunal.

However, a sum of Rs. 29,683/- towards medical expenses is just and reasonable and as per the medical bills produced by the appellants and therefore, it does not call for interference.

In all, the appellants are entitled to the total compensation of Rs. 8,54,683/- instead of Rs. 4,74,683/- awarded by the Tribunal. There would be an enhancement of Rs. 3,80,000/- with interest at 6% p.a., from the date of petition till its realization.

For the foregoing reasons, the appeal filed by the appellants is allowed in part. The impugned common judgment and award dated 07/02/2011, passed in MVC No. 48/2010, by the Presiding Officer, Fast Track Court, Udupi, is hereby modified, awarding a sum of Rs. 3,80,000/- with interest at 6% p.a., from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.

The Insurer is directed to deposit the enhanced compensation of Rs. 3,80,000/- with interest at 6% p.a., from the date of petition till the date of realization within a period of three weeks from the date of receipt of a copy of this judgment.

Immediately on deposit by the Insurer, out of the enhanced compensation of Rs. 3,80,000/-, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled or Grameena Bank, in the name of appellant No. 1 for a period of ten years and renewable by another ten years, with liberty reserved to her to withdraw the interest accrued on it, periodically.

A sum of Rs. 50,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled or Grameena Bank, in the names of each of the appellant Nos. 2, 3 and 4 till they attain 30 years, with liberty reserved to the appellant No. 1 to withdraw the interest accrued on it, periodically, for the welfare of appellant Nos. 2, 3 and 4 till they attain 21 years and from 22 years to 30 years, they are at liberty to withdraw the interest accrued on it periodically.

A sum of Rs. 50,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Grameena Bank, in the name of appellant No. 5 for a period of five years and renewable by another five years, with liberty reserved to her to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 80,000/- with proportionate interest shall be released in favour of the appellant Nos. 1 and 5 in equal proportion immediately.

Draw the award, accordingly.