Nagamma and Others vs Basavaraj and Others

B. Manohar, J.—1. Appellants are the claimants, being not satisfied with the quantum of compensation awarded in the judgment and award dated 10.07.2013 passed in MVC No. 1070/2012 by the II Addl. Senior Civil Judge and M.A.C.T. at Gulbarga (hereinafter referred to as ''the Tribunal'' for short) have filed this appeal, seeking for enhancement of compensation.

In the claim petition, the claimants have contended that on 26.04.2012 at 9.00 a.m., the husband of the first claimant and the father of claimant Nos. 2 to 4 deceased Siddappa who was working as a cleaner in a lorry bearing Reg. No. MH-32/B-4736 while proceeding from Sandur to Donimalai for the purpose of loading the mines as per the direction of respondent No. 1, due to the rash and negligent driving of the said lorry by its driver, he fell down from the lorry and sustained grievous injuries. Immediately after the accident, he was shifted to Government Hospital, Sandur. Subsequently, he succumbed to injuries. The police have registered the case against the driver of the said lorry in Crime No. 54/2012. The claimants claimed that at the time of death, deceased was aged about 43 years. He was working as a cleaner and earning Rs. 10,500/- p.m. Due to the death of deceased, his family has lost the bread earner. Hence, sought for compensation of Rs. 21,19,900/-.

Though respondent Nos. 1 and 2 have been served with notice, they remained unrepresented and they were placed ex-parte.

On the basis of the pleadings of the parties, the Tribunal framed necessary issues.

The claimants, in order to prove their case, the first claimant got examined herself as PW. 1 and got marked the documents as Exs.P1 to P8. The respondents have not led any evidence.

The Tribunal after considering the oral and documentary evidence let in by the parties and taking into consideration spot panchanama, copy of the complaint and MVI report, held that due to the rash and negligent driving of the lorry by its driver, the accident had occurred. The claimants are the dependents of the deceased and they are entitled for compensation. With regard to quantum of compensation is concerned, though the claimants claimed that deceased was earning Rs. 10,500/- p.m., no document has been produced to substantiate the same. Taking into consideration the income of the deceased as Rs. 4,000/- p.m., deducting 1/4th thereof towards his personal expenses, since there are four dependants and applying the multiplier of 13 since the deceased was aged about 50 years as on the date of the accident as per the post mortem report, has awarded a sum of Rs. 4,68,000/- towards loss of dependency and a sum of Rs. 40,000/- towards conventional heads. In all, the Tribunal has awarded compensation of Rs. 5,08,000/- with interest at 6% p.a. Being not satisfied with the said compensation, the claimants have filed this appeal, seeking for enhancement of compensation.

Sri Shivashankar H. Manur, the advocate appearing for the appellants contended that the compensation awarded by the Tribunal on all heads is too meager. The Tribunal has not awarded any future prospects. As per the judgment of the Hon''ble Supreme Court in the case of SANTOSH DEVI v. NATIONAL INSURANCE CO. LTD. & ORS. reported in , AIR 2012 SC 2185 the appellants are entitled to future prospects of 30%, though the deceased was not getting fixed income. Hence, sought for enhancement of compensation.

On the other hand, Sri C.S. Kalburgi, the advocate appearing for the second respondent - insurance company argued in support of the judgment and award passed by the Tribunal and contended that as per the judgment of the Hon''ble Supreme Court in the case of RESHMA KUMARI AND OTHERS v. MADAN MOHAN AND ANOTHER reported in , 2013 ACJ 1253, if the deceased does not have a fixed salary, the question of payment of future prospects does not arise at all. The Tribunal taking into consideration the income of the deceased has awarded a just and fair compensation and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the advocates appearing for the parties and perused the judgment and award passed by the Tribunal and the oral and documentary evidence adduced by the parties.

The records clearly disclose that the deceased died in the road traffic accident that occurred on 26.04.2012 due to the rash and negligent driving of the driver of the offending vehicle. The finding of the Tribunal with regard to actionable negligence on the part of the driver of the offending vehicle has become final. The dispute in this appeal is only with regard to quantum of compensation. Admittedly, the accident had occurred in the year 2012. The income of Rs. 4,000/- p.m. taken by the Tribunal is on the lower side. Even the daily wage employees working in the Government Department would earn more than Rs. 6,000/- per month. Further, in the Lok Adalath, in the absence of necessary documents, the income is being taken as Rs. 6,500/- p.m. for the year 2012. Hence, in the present case, even though appellants have not produced any documents to establish the income, the Tribunal ought to have taken the income at Rs. 6,500/- p.m. and awarded the compensation. Hence, taking into consideration the income of the deceased at Rs. 6,500/- p.m., deducting 1/4th towards his personal expenses and applying the multiplier of 13, the appellants are entitled to a sum of Rs. 7,60,500/- towards loss of dependency as against Rs. 4,68,000/- awarded by the Tribunal. Further, appellant No. 1 - wife of the deceased is entitled to a sum of Rs. 50,000/- towards loss of consortium and the two minor children i.e., appellant Nos. 3 and 4 are entitled to a sum of Rs. 50,000/-each towards loss of love and affection. Further, the appellants are entitled to a sum of Rs. 25,000/- towards conventional heads. In all, the appellants are entitled to a sum of Rs. 9,35,500/- as against Rs. 5,08,000/- awarded by the Tribunal. Thereby, the appellants are entitled to the enhanced compensation of Rs. 4,27,500/-.

The submission of the advocate appearing for the appellants that the appellants are entitled for the future prospects, though the deceased does not have a fixed salary cannot be accepted.

The Hon''ble Supreme Court in the judgment reported in , 2013 ACJ 1253 cited Supra, at paragraph 36 has clearly held that, when the deceased was self employed or on a fixed salary without provision for annual increment, the actual income at the time of death without any addition to income will be appropriate. In view of the judgment referred above, the appellants are not entitled for the future prospects. Accordingly, I pass the following:

ORDER

The appeal is allowed in part. The judgment and award dated 10.07.2013 passed in MVC No. 1070/2012 by the II Addl. Senior Civil Judge and M.A.C.T at Gulbarga is modified.

The appellants are entitled to the enhanced compensation of Rs. 4,27,500/- with interest at 6% p.a.

The fixed deposit be made as per the orders of the Tribunal.