M.S. Gurumurthy and Others vs A. Devaraj and Others

N.K. Patil, J.

Though these matters are posted today for Further orders, the same are taken up for final disposal, with the consent of learned counsel appearing for both the parties having regard to the facts and circumstances of the cases.

These two appeals by the Claimants and by the Insurer respectively are arising out of the same judgment and award dated 22/04/2013, passed in MVC No. 432/2007, by the Additional Senior Civil Judge and CJM and Motor Accident Claims Tribunal, Mandya, (hereinafter referred to as ''Tribunal'' for short).

The Tribunal, by its judgment and award has awarded a sum of Rs. 16,02,000/- under different heads with interest at 9% per annum from the date of petition till the date of deposit, as against the claim of the claimants for a sum of Rs. 37,00,000/-, on account of the death of the deceased Sri. G. Nanda Kishor, in the road traffic accident.

Aggrieved by the same, claimants have filed an appeal for enhancement of compensation on the ground that the compensation awarded by the Tribunal is inadequate and it is liable to be enhanced and whereas, the Insurer has filed an appeal for reduction of compensation, on the ground that, the compensation awarded by the Tribunal is on the higher side and disproportionate to the income of the deceased.

In brief, the facts of the case are:

"The claimants are the parents and brother of the deceased Sri. Nanda Kishor. Initially, the injured has 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 on account of the injuries sustained by him in the accident contending that, on 25.4.2007, he was riding his bicycle on the left side of MC Road from his land towards Mysugar High School at about 6.30 a.m. and when he came in front of Mysugar High School, at that time, the driver of one Maruthi Car Bearing Reg. No. KA.03.Z.2178 came in a rash and negligent manner with high speed and dashed against the deceased. Due to which, he was thrown away from bicycle and fell on the Maruthi car and sustained severe injuries all over his body. Immediately, he was taken to District Hospital, Mandya, then shifted to NIMHANS where he took treatment as inpatient, underwent surgery, implants were inserted, he took treatment for three months and spent huge amount towards medical and other incidental expenses. During the pendency of the petition, injured died on 23.12.2007 and his LRs were came on record and amended the petition."

It is the further case of the claimants that, deceased was aged about 33 years, black belt in Karate, working as Karate Instructor at three institutions. He was also having wholesale Distribution of Annapooneswari Gramodyoga, agent of Bajaj Allianz company, owning 4 cows and doing milk vending work and in all, he used to earn Rs. 33,000/- per month and looking after the welfare of the family. On account of his untimely death, claimants have suffered financial loss as they have lost the earning member in the family, 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. 16,02,000/- under different heads with interest at 9% p.a., from the date of petition till the date of deposit. Being aggrieved by the said judgment and award, the claimants and the insurer have filed these appeals, seeking appropriate relief as stated supra.

We have heard learned counsel appearing for the claimants and learned counsel appearing for Insurer at considerable length of time.

Learned counsel Sri. L. Raja, appearing for claimants, submitted that, the Tribunal has erred in not adding another 30% towards future prospects to the income of the deceased in the light of the judgment of the Apex Court, as he was aged about 33 years, Karate Instructor, Insurance Agent and also doing business and earning more than Rs. 25,000/- per month and therefore, another 30% should be added towards future prospects for calculating loss of dependency. Further, he submits that, the compensation awarded towards medical expenses, including incidental expenses is inadequate and is liable to be enhanced and that the Tribunal has erred in not awarding any compensation towards loss of estate and towards loss of love and affection. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by enhancing the compensation reasonably.

As against this, learned counsel Sri. C.R. Ravishankar, appearing for the Insurer, submitted that, the Tribunal, without any justification and without any evidence has erred in assessing the income of the deceased at Rs. 22,000/- per month, which is on the higher side and is liable to be re-assessed, as it was the case of the claimants that deceased was a Karate Instructor, Insurance Agent and also whole sale distributor. He further submits that, even if the total income of the deceased is taken from all his avocations at Rs. 22,000/- per month, he ought to have paid the income tax. But the claimants have not produced any bank statement or IT returns submitted by the deceased. But this aspect of the matter has not been considered or appreciated while assessing the income of the deceased. Therefore, he submitted that the income of the deceased is liable to be re-assessed at Rs. 15,000/- per month, after deducting 50% towards his personal expenses and applying appropriate multiplier, reasonable compensation may be awarded towards loss of dependency. Further, he submits that the compensation awarded by the Tribunal under other heads is just and reasonable and therefore, it does not call for interference. Therefore, he submitted that, the impugned judgment and award is liable to be modified by reducing the compensation towards loss of dependency.

After hearing the 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, it emerges that, the occurrence of the accident, injuries sustained by one G. Nanda Kishor, resulting in his death are not in dispute. Deceased was aged about 33 years, Black belt holder in Karate, working as Karate Instructor in three institutions, Insurance Agent and also wholesale Distributor and as per Ex. P18- 15 certificates of Karate Training School in his name and all those documents discloses prior to the accident he was hale and healthy, Karate Master and having substantial income. The Tribunal, taking all these factors into consideration and after assigning cogent and valid reasons in Para-17 of its judgment has justified in assessing the income of the deceased at Rs. 22,000/- per month. The Tribunal, after deducting 50% towards personal expenses and applying the multiplier of ''11'' taking the age of the younger parent, mother of the deceased, has justified in awarding a sum of Rs. 14,52,000/- towards loss of dependency and we accept the same. Therefore, we do not find any substance in the submission made by learned counsel appearing for the Insurer that the monthly income of the deceased has to be reassessed at Rs. 15,000/- per month, after deducting 50% towards his personal and living expenses and adopting multiplier taking the age of younger parent, mother, reasonable amount may be awarded towards loss of dependency. Further, the Tribunal has justified in awarding a sum of Rs. 1,40,000/- towards medical expenses, including incidental expenses and a sum of Rs. 10,000/-towards funeral and transportation expenses and in all, Rs. 16,02,000/- with interest at 9% p.a., from the date of petition till the date of deposit. The said compensation awarded by the Tribunal is just and proper and it does not call for interference. Neither the claimants nor the Insurer have made out any good grounds to entertain the relief sought by them in these appeals, nor we find any merits in the appeals. Hence, these appeals filed by the claimants and by the Insurer are dismissed as devoid of merit.

The amount deposited by the Insurer in M.F.A. No. 5333/2014 shall be transmitted to the jurisdictional Claims Tribunal forthwith.

Office to draw the award, accordingly.

In view of dismissal of these appeals, the relief sought by the Insurer in I.A. No. 2/2014 in M.F.A. No. 5333/2014 does not survive for consideration. Hence, it is disposed off as having become infructuous.