Kullegowda and Others vs Azeez Khan B.H. and Others

N.K. Patil, J.

This appeal by the appellants-claimants is directed against the impugned judgment and award dated 19/12/2013, passed in MVC No. 1788/2012, by the Senior Civil Judge and Motor Accident Claims Tribunal, Malavalli, (hereinafter referred to as ''Tribunal'' for short), for enhancement of compensation., on the ground that, a sum of Rs. 3,90,000/- awarded by the Tribunal under different heads with interest at 6% per annum from the date of petition till the date of deposit, as against the claim Rs. 20,00,000/-, on account of the death of the deceased Smt. Rajamma, in the road traffic accident is inadequate.

In brief, the facts of the case are:

"The appellants are the husband, two children 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 5.10.2012 deceased was traveling in the Motor Cycle bearing Reg. No. KA.05.EJ.867 as a pillion rider and her brother by name B. Rajendra was riding the said motor cycle from Halagur side towards Malavalli Town on the left side of the road and at about 4 p.m. when he came near IB Circle cross and crossing the motor cycle towards Malavalli town side by putting the indicator and also giving hand signal, at that time, the driver of the Lorry bearing Reg. No. KA01.D.8477 came from Kollegala side in a very rash and negligent manner at high speed and without giving any signal turned towards Kanakapura side and dashed against the motor cycle and the motorcycle fixed by dashing to the front wheel mud guard and caused the accident. Due to which, the rider and deceased sustained injuries. Immediately, deceased was shifted to Malavalli General Hospital in 108 ambulance, after first aid, she was shifted to District Hospital, Mandya, wherein she was admitted, but inspite of giving all possible treatment, she succumbed to the injuries on 5.10.2012 at about 7.30 p.m."

It is the further case of the appellants that, deceased was aged about 45 years, hale and healthy prior to the accident, she was an agriculturist also doing vegetable and milk vending business and home maker and earning Rs. 15,000/- per month and contributing her entire earnings to the family. Due to her untimely death, husband has lost his wife, children are deprived of the love and affection, guidance and security of their mother 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. 3,90,000/- under different heads with interest at 6% p.a., from the date of petition till the date of deposit.

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 Sri. K.L. Sreenivas, 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 an agriculturist and also doing vegetable and milk vending business and home maker, hale and healthy prior to the accident. Therefore, he submitted that the income of the deceased may be re-assessed reasonably and after deducting 50% towards personal and living expenses of the deceased and applying the proper multiplier taking the age of the husband, reasonable compensation may be awarded towards loss of estate. Further, he submits that, the compensation awarded by the Tribunal towards conventional heads and the rate of interest awarded 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.

As against this, learned counsel 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 45 years, hale and healthy prior to the accident, an agriculturist and also doing vegetable and milk vending business and home maker and the appellants are her husband and children. On account of untimely death of the deceased, appellant No. 1 has lost his wife, appellant Nos. 2 and 3, are deprived of the love and affection, guidance and security of their mother. 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. It is the case of the appellants that deceased was earning Rs. 15,000/- per month by doing agriculture and vegetable and milk vending business. But they have not produced any documents to prove the same. Having regard to the age and occupation of the deceased and the accident has occurred in the year 2012, we re-assess her income at Rs. 6,500/- per month to meet the ends of justice instead of Rs. 3,000/- per month as assessed by the Tribunal. Out of which, if 50% ( Rs. 3,250/-) is deducted towards the personal and living expenses of the deceased since the appellants are the husband and children of the deceased, her net contribution to the family comes to Rs. 3,250/- per month. The appropriate multiplier applicable is ''9'' since the husband of the deceased was aged about 60 years instead of T4'' adopted by the Tribunal taking the age of the deceased. Therefore, we re-determine the loss of dependency at Rs. 3,51,000/- ( Rs. 3,250/- x 12 x 9) instead of Rs. 3,36,000/- 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. 75,000/- towards loss of love and affection at the rate of Rs. 25,000/- each to the appellant Nos. 1 to 3, and Rs. 25,000/- towards transportation and funeral expenses.

Further, it is the submission of the learned counsel appearing for the appellants that, rate of interest awarded by the Tribunal at 6% p.a, from the date of petition till its deposit is on the lower side and is liable to be enhanced since the accident is of the year 2012 atleast to 9 to 10% p.a. We find some substance in the said submission. Therefore, in the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the enhanced compensation only.

In all, the appellants are entitled to the total compensation of Rs. 5,01,000/- instead of Rs. 3,90,000/- awarded by the Tribunal. There would be an enhancement of Rs. 1,11,000/- with interest at 9% 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 judgment and award dated 19/12/2013, passed in MVC No. 1788/2012, by the Senior Civil Judge and Motor Accident Claims Tribunal, Malavalli, is hereby modified, awarding a sum of Rs. 1,11,000/- with interest at 9% 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. 1,11,000/- with interest at 9% 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. 1,11,000/- with interest, a sum of Rs. 50,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of the appellant No. 1, in any Nationalized or Scheduled or Grameena bank, for a period of 5 years and renewable by another 5 years, with liberty reserved to the appellant No. 1 to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 61,000/- with proportionate interest shall be released in favour of the appellant Nos. 1 to 3 in equal proportion immediately.

Draw the award, accordingly.