Laxmamma and Others vs Noorulla and Others

N.K. Patil, J.—This appeal is by the appellants directed against the impugned judgment and award dated 26th November 2012 passed in M.V.C. No. 1021/2011 on the file of the Presiding Officer, Fast Track Court-II and M.A.C.T., Shimoga (hereinafter referred to as ''Tribunal'' for short). The Tribunal by its impugned Judgment and Award, awarded a sum of Rs. 3,79,000/- with interest at the rate of 6% p.a. from the date of petition till the date of realisation fixing 50% contributory negligence on the part of the deceased. 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 and further fixing the contributory negligence on the part of the deceased is disproportionate and the same may be re-determined and liable to be reduced by modifying the impugned Judgment and Award passed by the Tribunal.

The brief facts of the case on hand are that, the appellant No. 1 is the mother, appellant No. 2 is the wife and appellant Nos. 3, 4 and 5 are children of the deceased. They have filed a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs. 30,10,000/- against the respondents on account of untimely death of the deceased Sri. M.K. Das in the road traffic accident that occurred on 7.1.2010 at about 3.15 p.m. contending that, when the deceased was going on his bike bearing No. KA-14/V-6348 to his land after completion of his lunch, while he was so proceeding near Beeranakere, Kittadalu Village, at that time the 1st respondent, being the driver of Krishna Bus bearing Regn. No. KA-14/D-7677 drove the said bus in a rash and negligent manner and dashed against the bike of the deceased. Due to the impact, he fell down and died on the spot.

It is the further case of the appellants that, the deceased was aged about 44 years, earning more than Rs. 10,000/- per month, hale and healthy and was the only bread earning member in the family. The entire family was depending upon the income of the deceased. Due to untimely death of the deceased, the appellants are put to great hardship, loss, inconvenience and mother has lost her bright son and suffered mental pain and agony, wife has lost her companion and children have lost love and affection, inspiration, guidance. There is total loss to the family as he was the only bread earning member in the family. Taking all these aspects into consideration, they filed 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 evidence of PWs 1 to 3 and RW-1 coupled with the documentary evidence at Exs. P1 to P11 and Exs. R1 to R3 by assigning valid and cogent reasons at paragraph 19 of the Judgment, fixing 50% contributory negligence each on the part of the rider of the bike -deceased and the driver of the Private Bus, taking the income of the deceased at Rs. 6,000/- per month, and deducting 1/3rd towards personal expenses, taking the net income of the deceased at Rs. 4,000/- per month applying the multiplier of T5'' and awarded Rs. 7,20,000/- towards loss of dependency, Rs. 38,000/- towards conventional heads and after deducting 50% contributory negligence on the part of the deceased. Out of Rs. 7,58,000/- i.e. Rs. 3,79,000/- awarded a sum of Rs. 3,79,000/- 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.

The learned Counsel appearing for the appellants at the outset submitted that, the Tribunal has erred in taking the income of the deceased at only Rs. 6,000/- per month, which is contrary to the documentary evidence at Ex. P6 - Salary Certificate issued by Polite Enterprises stating that he was working as Contract Labour since 1.10.2008. He was the only earning member in the family and the entire family was depending upon the income of the deceased and whatever income he earned he used to spend the entire income to the welfare of the family. Therefore, he submits that the income of the deceased may be assessed as Rs. 7,500/- p.m. to meet the ends of justice.

The Tribunal has erred in fixing 50% contributory negligence on the part of the deceased - rider of the motorcycle and the same is liable to be reduced substantially. Further, he specifically pointed out the reasoning given by the Tribunal at paragraph 20 that the deceased was driving the bike very cautiously and there is no tyre marks for about 20 feet distance in the middle of the road and the evidence of RW-1, driver of the offending vehicle insured with the Insurance Company is against the contents of Ex. P4 and Ex. R2 and they have not filed any objections denying the manner of the accident. In the absence of specific pleadings, the evidence given by him before the Court cannot be accepted in full. In fact, the evidence of driver of Private Bus - RW-1 discloses that Investigating Officer had filed Charge sheet against him and after trial he was acquitted. These aspects have not been looked into nor considered nor appreciated by the Tribunal and fixed 50% contributory negligence on the part of the deceased - rider of the motorcycle. Therefore, he submitted that the impugned judgment and award is liable to be modified by fixing reasonable contributory negligence on the part of the deceased herein.

Further, he submitted that the Tribunal has not awarded reasonable compensation towards conventional heads and the same is inadequate and in the light of the judgments of Apex Court and this Court, reasonable compensation towards conventional heads may be awarded and also the rate of interest may be awarded at 9% p.a. to 10% p.a. from the date of petition till realization by modifying the impugned Judgment and Award passed by the Tribunal.

Per contra, the learned Counsel appearing for the 3d respondent - insurer Sri. Ravish Benni 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 and is justified in assessing the income of the deceased at Rs. 6,000/- per month and rightly deducting 1/3rd towards personal expenses of the deceased as the appellant Nos. 3 and 4 are majors and dependents are only mother, wife and 5th appellant - minor daughter and therefore, interference by this Court is not called for.

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 points that arise for consideration are:

"1. Whether the appellants have made out a case for interference in fixing 50% contributory negligence on the part of the deceased rider of the motorcycle?

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

Re. Point No. 1: The occurrence of the accident and the resultant death of the deceased are not in dispute. It is also not in dispute that the deceased was aged about 44 years as on the date of accident. The claimants are none other than mother, wife and children of the deceased. The Tribunal after due appreciation of the evidence of PWs 1 to 3 and RW-1 and with reference to the contents of Exs. P4 and R4 - Spot mahazar and Sketch, Ex. P5 -Inquest Mahazar, Ex. P6 - Salary Certificate, has discussed elaborately at paragraphs 16 to 20 specifically with reference to the oral evidence of PW-2 and contents of Ex. P4 and Ex. R2, recorded a finding of fact and clearly proved that the accident occurred due to negligence of both the deceased rider of motor cycle and the driver of the offending vehicle. Therefore, both are attributed contributory negligence in causing the accident and also the Tribunal is justified in assessing 50% contributory negligence on the part of the rider of the motorcycle and 50% on the part of the driver of the Private Bus by assigning valid and cogent reasons nor we find any substance in the submission made by the learned Counsel appearing for the appellants/claimants. Therefore, interference by this Court is not called for.

Re. Point No. 2: The appellant No. 1 is the mother, appellant No. 2 is the wife and appellant Nos. 3, 4 and 5 are children of the deceased. Due to the untimely death of the deceased, the mother has suffered mental pain and agony, wife has lost her companion at her young age, children have lost love and affection, inspiration and guidance of their father and there is total loss of economic and social status in the family as he was the only bread earning member of the family, whatever amount he earned he used to spend the entire amount to the welfare of the family. It is seen from the evidence of PW-3 - Employer of the deceased that the deceased was working in Private Company earning salary of Rs. 7,443/- per month. To substantiate that the deceased was drawing the said salary and the evidence of PW-3, reliance is placed at Ex. P6 - salary certificate issued by the Employer, Ex. P7 - Certificate of Registration, Ex. P8 -Attendance Register copy and Ex. P9 - Payment Register copy.

After careful consideration of the contents of these documents available on record, we can safely re-assess the total income of the deceased at Rs. 7,400/- p.m. as per Ex. P6 to meet the ends of justice. The claimants are five in number, therefore, if we deduct 1/4th towards personal expenses of the deceased i.e. Rs. 1,850/- p.m., the net amount works out to Rs. 5,550/- per month. The deceased was aged about 44 years at the time of accident, the appropriate multiplier applicable is T4''. Accordingly, we re-determine the compensation towards loss of dependency at Rs. 9,32,400/-(Rs. 5550/- x 12 x 14) and accordingly, awarded.

In the light of the judgments of Apex Court and this Court in host of judgments and having regard to the facts and circumstances of the case stated supra, we deem fit to award Rs. 1,00,000/- towards loss of consortium, Rs. 1,25,000/- towards loss of love and affection at the rate of Rs. 25,000/- to each appellant, 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. 12,07,400/-. Out of which if 50% is deducted towards contributory negligence on the part of the deceased it comes to Rs. 6,03,700/- as against Rs. 3,79,000/- awarded by the Tribunal. There would be enhancement of Rs. 2,24,700/-. In the light of hosts of judgments of Apex Court and this Court, we award interest at the rate of 8% 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 26th November 2012 passed in M.V.C. No. 1021/2011 on the file of the Presiding Officer, Fast Track Court-II and M.A.C.T., Shimoga is hereby modified awarding additional compensation of Rs. 2,24,700/- with interest at 8% p.a. from the date of petition till payment.

The 3rd respondent - Insurer herein is directed to deposit the enhanced compensation amount with interest at 8% p.a. from the date of petition till realisation, 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. 2,24,700/-, Rs. 1,00,000/- with proportionate interest shall be invested in Fixed Deposit in the name of the appellant No. 2 - Mrs. Ruttamma, wife of the deceased Mrs. Ruttamma in any Nationalized or Scheduled Bank or Grameena Bank, for a period of 15 years and renewable for 10 years and she is entitled to withdraw the periodical interest accrued on it.

A sum of Rs. 50,000/- with proportionate interest shall be invested in Fixed Deposit in the name of the appellant No. 5 -Reena, minor daughter of the deceased in any Nationalized or Scheduled Bank or Grameena Bank till she attains the age of 30 years and appellant No. 2 - mother of the appellant No. 5 is entitled to withdraw the periodical interest accrued on it for the welfare of the appellant No. 5 till she attains the age of 21 years. From 22 to 30 years, the appellant No. 5 is entitled to withdraw the periodical interest accrued on it.

Remaining amount of Rs. 74,700/- with interest shall be released in favour of the appellant Nos. 1 and 2 in equal proportion, immediately on deposit by the 3rd respondent -Insurer.

Draw the award, accordingly.