Lakshamma and Others vs Halappa and Others

N.K. Patil, J.—Though this matter is posted today for orders, with the consent of the 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 28/07/2011, passed in MVC No. 74/2010, by the Senior Civil Judge and Motor Accident Claims Tribunal, Belur, (hereinafter referred to as '' Tribunal'' for short).

The Tribunal, by its judgment and award has awarded a sum of Rs. 3,33,036/- under different heads with interest at 6% per annum from the date of petition till its realization, on account of the death of the deceased Sri. Jogaiah, in the road traffic accident.

In brief, the facts of the case are:

"On account of the death of the deceased Sri. Jogaiah, the appellants being his wife and daughters have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the owner and insurer of the offending vehicle, contending that, on 12.2.2009 at about 6.45 p.m. deceased was walking along with his nephew near Rayapura bridge on Hassan-Belur road, at that time, the driver of the auto bearing Reg. No. KA.13.8796 came in a rash and negligent manner and dashed against the deceased. Due to which, deceased sustained multiple injuries. Immediately after the accident, he was shifted to Government Hospital, Belur, after first aid as per the advise of the Doctor, he was shifted to S.C. Hospital, Hassan, but he succumbed to the injuries on 13.2.2009 in the said hospital."

It is the further case of the appellants that, deceased was aged about 52 years, hale and healthy prior to the accident, was an agriculturist by profession and earning Rs. 8,000/- per month and looking after the welfare of the family and due to his untimely death they have lost their future hopes and security and also suffered both social and financial loss, apart from mental shock and agony.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, in turn, after appreciating the oral and documentary evidence and other material available on file, has allowed the said claim petition in part, awarding the compensation of Rs. 3,33,036/- under different heads with interest at 6% p.a., from the date of petition till its realization. Being dissatisfied with the quantum of compensation awarded by the Tribunal, appellants have presented this appeal, for enhancement of compensation.

I have heard 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 Tribunal has assessed the income of the deceased at Rs. 4,000/- per month which is on the lower side and is liable to be re-assessed reasonably, on the ground that, deceased was an agriculturist by profession, accident has occurred on 12.2.2009 and the dependants are his wife and two daughters. He further submits that the Tribunal has erred in not awarding reasonable compensation towards conventional heads and that the rate of interest awarded at 6% p.a. is on the lower side. 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, sought to substantiate that the impugned judgment and award passed 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 both the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, it emerges that, the occurrence of the accident and the resultant death of the deceased are not in dispute. It is the case of the appellants that, deceased was aged about 52 years, agriculturist by profession, hale and healthy prior to the accident, the only earning member in the family and the dependants are his wife and two daughters. On account of the untimely death of the deceased, appellants have lost their earning member, suffered financial distress in the family, apart from mental shock and agony and it has to be compensated reasonably. The Tribunal has assessed the income of the deceased at Rs. 4,000/- per month, which is on the lower side and it needs to be re-assessed reasonably. Further, the Tribunal on the basis of Ex. P6-Post Mortem report coupled with the evidence of PWs 1 and 2 has justified in assessing the age of the deceased as 58 years and adopting Multiplier of ''9'' in view of the law laid down by the Apex Court in Sarla Verma''s case reported in 2009 ACJ 1298 and I accept the same. Having regard to the age, occupation and year of the accident, if the income of the deceased is re-assessed at Rs. 4,500/- per month it would meet the ends of justice and accordingly, it is re-assessed. Out of which, if 1/3rd ( Rs. 1,500/-) is deducted towards the personal expenses of the deceased, his net income comes to Rs. 3,000/- per month. Therefore, I re-determine the loss of dependency at Rs. 3,24,000/- ( Rs. 3,000/- x 12 x 9) instead of Rs. 2,88,036/- awarded by the Tribunal and accordingly, it is awarded.

Further, the appellants are entitled for reasonable compensation towards conventional heads since the wife who was aged about 55 years has lost her life partner and the daughters are deprived of the love and affection, security and guidance of their father. Therefore, I award a sum of Rs. 50,000/- towards loss of consortium, Rs. 25,000/- loss of estate, Rs. 30,000/- loss of love and affection at the rate of Rs. 10,000/- each to the appellant Nos. 1 to 3 and Rs. 25,000/- towards transportation and funeral expenses. In all, the appellants are entitled to the total compensation of Rs. 4,54,000/- instead of Rs. 3,33,036/- awarded by the Tribunal. There would be an enhancement of Rs. 1,20,964/- with interest at 8% p.a., since the accident is of the year 2009 from the date of petition till its realization (excluding interest for the delayed period of 859 days in filing the appeal).

For the forgoing reasons, the appeal filed by the appellants is allowed in part and the impugned judgment and award dated 28/07/2011, passed in MVC No. 74/2010, by the Senior Civil Judge, Motor Accident Claims Tribunal, Belur, is hereby modified, awarding the compensation of Rs. 1,20,964/- with interest at 8% p.a., from the date of petition till its realization (excluding interest for the delayed period of 859 days in filing the appeal), in addition to the compensation awarded by the Tribunal.

The Insurer is directed to deposit the enhanced compensation with interest (excluding interest for the delayed period of 859 days in filing the appeal) within a period of three weeks from the date of receipt of a copy of this judgment and award.

Immediately on such deposit by the Insurer, out of the enhanced compensation of Rs. 1,20,964/-, a sum of Rs. 80,000/- with proportionate interest shall be kept in Fixed Deposit in any Nationalized or Scheduled or Grameena Bank, in the name of appellant No. 1, for a period of five years and renewable by another five years, with liberty reserved to the appellant No. 1 to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 40,964/- with proportionate interest shall be released in favour of the appellant No. 1.

Office to draw the award, accordingly.

Sri. A.M. Venkatesh, learned counsel is permitted to file vakalath for R2-Insurer.