Mahadevamma and Others vs Nagendra and Others

N.K. Patil, J.—This appeal by the claimants is directed against the judgment and award dated 15th June 2010, passed in MVC No. 225/2008, by the Presiding Officer, Fast Track Court-V, Motor Accident Claims Tribunal, Mysore, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 4,87,000/- awarded in favour of the claimants as against their claim for Rs. 8,20,000/-, is inadequate.

The facts in brief are that, the claimant No. 1 is the wife, claimant Nos. 2 to 5 are the minor children and claimant Nos. 6 and 7 are the parents of deceased. They filed the claim petition under Section 166 of the Motor Vehicles Act, contending that, at about 08:15 A.M., on 23-04-2008, on Golur-Nanjangud Road, near Halladaken in Nanjangud Taluk, when the deceased was going by his bicycle towards Nanjangud, at that time, a Tractor and Trailer bearing Registration No. KA-09/T-5704-T-5705, came from his back in a rash and negligent manner and dashed against the said bicycle. Due to the impact, the deceased sustained severe injuries and was shifted to the nearby Hospital, but unfortunately, he succumbed to the injuries on the way to the Hospital.

It is the case of the appellants that, the deceased was aged about 40 years and working as Labourer at Techno-Plex Industry in Nanjangud, earning a sum of Rs. 5,000/- per month and hale and healthy prior to the accident. On account of the untimely death of the deceased, the first appellant has lost her life partner, the children have lost the love and affection, inspiration and guidance and the parents have lost social, financial and moral support and are deprived of seeing the bright future of their son and therefore, they have to be compensated reasonably.

On account of the death of the deceased, the appellants filed the claim petition before the Tribunal, seeking compensation of Rs. 8,20,000/- against the respondents. The said claim petition had come up for consideration before the Tribunal on 15th June, 2010. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 4,87,000/- under different heads, with 6% interest per annum, from the date of petition till the date of payment and directed the owner of the offending vehicle to indemnify the award amount and dismissed the claim petition as against the Insurer. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants are in appeal before this Court, seeking enhancement of compensation.

I have gone through the grounds urged in the memorandum of appeal and heard the learned counsel appearing for the appellants and third respondent/Insurer, for quite some time.

Learned counsel appearing for appellants vehemently submitted that, the Tribunal committed an error in not assessing the reasonable income of the deceased, resulting in miscarriage of justice, for the reason that, the deceased was aged about 40 years, working as labourer in a private company called Techno-Plex Industry in Nanjangud, earning a sum of Rs. 5,000/- per month, but the Tribunal erred in assessing the income of the deceased at only Rs. 3,000/- per month. The said income is liable to be reassessed at least between Rs. 4,000/- and Rs. 5,000/- per month. Further, she vehemently submitted that, out of the income assessed, 1/5th may be deducted, considering the number of dependents, i.e. seven and reasonable compensation be awarded towards loss of dependency, by adopting multiplier of ''15'', taking the age of the deceased as 40 years. She further submitted that the compensation awarded by Tribunal towards conventional heads is also on the lower side, considering the age of the wife, number of dependents, out of whom, all the four children are minors. Therefore, she submitted that reasonable enhancement may be made under the conventional heads also, by modifying the impugned judgment and award passed by Tribunal.

Further, she also submitted that, if the driver of the offending vehicle did not possess a valid and effective driving licence to drive the vehicle, then, the Tribunal ought to have directed the Insurer of the offending vehicle to first indemnify the award and thereafter recover the same from the owner of the offending vehicle, instead of directing the owner of the offending vehicle to indemnify the award straightaway. Therefore, she submitted that the impugned judgment and award passed by Tribunal is liable to be modified on this count also.

As against this, learned counsel appearing for Insurer, inter alia contended and substantiated the judgment and award passed by Tribunal stating that the same is passed after due appreciation of the oral and documentary evidence available on file and after consideration of the entire material available on file and hence, the compensation awarded by Tribunal is just and reasonable and it does not call for interference.

After hearing learned counsel appearing for the appellants, learned counsel appearing for respondents 1 and 2, learned counsel appearing for third respondent/Insurer and after careful perusal of the impugned judgment and award passed by the Tribunal, the only point that arise for my consideration in this appeal is:

Whether the compensation awarded by Tribunal is just and reasonable?

After careful perusal of the entire material available on file, it can be seen that, occurrence of accident and the resultant death of the deceased are not in dispute. It is further not disputed that the claimants are none other than the wife, four minor children and parents of deceased. It is stated that the deceased was aged about 40 years in the claim petition. The same is supported by the documentary evidence at Ex. P7, P.M. Report. The Tribunal, taking into consideration the age of the deceased as 40 years, has adopted the multiplier of ''15''. The same is just and proper and is accepted.

Further, it is stated that the deceased was working as a Labourer at Techno-Plex Industry at Nanjangud, earning salary of Rs. 5,000/- per month. But, no documentary evidence is produced in support of the same. But, the Tribunal also erred in assessing the income of the deceased at only Rs. 3,000/- per month. The same is on the lower side and liable to be re-assessed. Therefore, considering the age, avocation and also the year of accident, I reassess the monthly income of the deceased at Rs. 4,000/-. Out of the said sum, 1/5th has to be deducted towards personal expenses of the deceased as the claimants are seven in number. Accordingly, if 1/5th (i.e. Rs. 800/-) is deducted from Rs. 4,000/- towards the personal expenses of the deceased, the net income would be Rs. 3,200/- per month. Considering the age of the deceased as 40 years, the proper multiplier applicable is ''15'' as per the decision of the Hon''ble Apex Court Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, as rightly adopted by Tribunal. Thus, the compensation towards loss of dependency would work out to Rs. 5,76,000/- (i.e. Rs. 3,200/- x 12 x ''15'') as against Rs. 4,32,000/- awarded by Tribunal.

Further, the Tribunal has erred in awarding a sum of only Rs. 55,000/- towards conventional heads. The same is on the lower side, having regard to the facts and circumstances of the case and also considering the fact that the wife was aged only 35 years, four minor children were aged about 14 years, 9 years, 4 years and 1 1/2 years and the parents were aged about 65 years and 42 years, at the time of accident.

Having regard to the facts and circumstances of the case, I deem it fit to award a sum of Rs. 10,000/- towards loss of consortium, Rs. 10,000/- towards loss of estate, Rs. 70,000/- towards loss of love and affection at the rate of Rs. 10,000/- to each claimant and Rs. 10,000/- towards transportation and funeral expenses as against the compensation awarded by Tribunal towards the said heads.

Thus, the total compensation would work out to Rs. 6,76,000/- as against Rs. 4,87,000/- awarded by Tribunal, with interest at 6% per annum, on the enhanced compensation, from the date of petition till the date of realization.

Regarding the submission of the learned counsel appearing for claimants that the Tribunal is not justified in directing the owner of the offending vehicle to indemnify the award is concerned, the same cannot be sustained and is liable to be rejected for the reason that, the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has recorded a specific finding of fact at internal page 9 of its judgment and ink page 19, holding that the Insurer is not liable to indemnify the award. It is no doubt true that as on the date of accident, the offending tractor and trailer was duly insured with the Insurer and the same was valid and in force. But, it is significant to note that the driver of the said tractor and trailer did not have a valid and effective Driving Licence to drive the said vehicle as on the relevant period of time of accident, i.e. during 2008. The RDL is renewed from 02-05-2003 to 01-05-2006 and thereafter renewed from 02-05-2009 to 01-05-2012. This clearly goes to show that between June 2006 to April 2009, the driver did not possess a valid and effective driving licence and between this period only, the accident has occurred. Thus, the second respondent/owner of the offending tractor and trailer has violated the terms and conditions of the policy. Accordingly, the Tribunal fixed liability jointly and severally on the part of the respondents 1 and 2, being the driver and owner of the offending tractor and tempo respectively to indemnify the award and thereafter, directed the second respondent, being the owner of the tractor and trailer to indemnify the award. The said reasoning given by Tribunal for fixing liability on the part of the owner of the offending tractor and trailer is just and proper and it does not call for interference by this Court. The direction issued by Tribunal to the second respondent/owner of the offending tractor and trailer to indemnify the award is upheld.

In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellants is allowed in part. The impugned judgment and award dated 15th June 2010, passed in MVC No. 225/2008, by the Presiding Officer, Fast Track Court-V, Motor Accident Claims Tribunal, Mysore, is hereby modified, awarding a sum of Rs. 1,89,000/-, with interest at 6% per annum, from the date of petition till the date of realization, in addition to the compensation awarded by Tribunal.

The respondent No. 2/owner is directed to deposit the enhanced compensation of Rs. 1,89,000/-, with interest thereon at 6% per annum, within three weeks from the date of receipt of copy of the judgment.

Immediately on such deposit by the second respondent, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in Fixed Deposit, in the name of the Appellant No. 1 -- wife of deceased, in any nationalized or scheduled or Grameena Bank, for a period of ten years, renewable for ten years, with liberty reserved to her to withdraw the interest periodically.

Remaining sum of Rs. 89,000/- with proportionate interest shall be released in favour of Appellant Nos. 1, 6 and 7, in equal proportion, immediately.

Office to draw award, accordingly.