National Insurance Co. Ltd., Bangalore vs Smt. Severin Fernandes

B. Manohar, J.—The National Insurance Company Limited has filed this appeal challenging the legality and correctness of the judgment and award dated 09-12-2013 in MVC No. 319/2011 passed by the Motor Accident Claims Tribunal and III Additional Senior Civil Judge, Mangalore, D.K. (hereinafter referred to as �the Tribunal� for short).

Respondents 1 and 2 herein had filed a claim petition contending that on 17-10-2010, while the husband of the first respondent and father of the second respondent William Furtado was proceeding on the left pound; side of Kadoor-Bantwal State Highway, near Basavanagudi Petrol Bunk of Kukkala village, a scooter bearing Registration No. KA- 19/J-6545 ridden by its rider in a rash and negligent manner dashed against Mr. William Furtado. Due to the said impact, he fell-down and sustained grievous injuries. Immediately after the accident he was shifted to Father Mullers Medical College, wherein he had taken treatment as inpatient. In spite of giving best treatment, he died on 19-10-2010. The claimants claimed that, prior to the accident, the deceased was aged about 62 years, hale and healthy, he was a mason expert in digging the ring well. He was earning a sum of Rs. 20,000/- p.m. In view of death of the bread earner, the family has become destitute and sought for compensation of Rs. 21,00,000/-.

In pursuance of the notice issued by the Tribunal, though the first respondent was served with notice, he remained represented. The second respondent-insurance company filed written statement denying the entire averments made in the claim petition and also rash and negligent riding of the motorbike and sought for dismissal of the claim petition.

On the basis of pleadings of the parties, the Tribunal framed necessary issues. In order to prove their case, the first claimant got herself examined as P.W.1 and also examined two other witnesses and got marked the documents as Ex. P1 to Ex. P10. On behalf of the respondents, none of the witnesses were examined. However, a copy of the insurance policy was marked as Ex.R 1.

The Tribunal after appreciating the oral and documentary evidence let in by the parties and taking into consideration spot mahazar, IMV report, inquest report, copy of the charge-sheet and complaint held that the accident had occurred due to the actionable negligence on the part of the rider of the offending motorbike and the claimants are entitled to compensation. With regard to quantum of compensation is concerned, though the claimants claimed that the deceased was a mason, expert in digging ring well, earning a sum of Rs. 20,000/- p.m., no document has been produced to substantiate the same. In view of that, the Tribunal had taken the income of deceased as Rs. 7,500/- p.m., deduction ⅓rd towards his personal expenditure and applying the multiplier 8, since the deceased was aged about 62 years as on the date of death, awarded a sum of Rs. 4,80,000/- towards loss of dependency; Rs. 50,000/- towards loss of consortium; Rs. 50,000/- towards loss of estate; Rs. 1,00,000/- toward loss of love and affection; and Rs. 15,000/- towards funeral and transportation charges. In all, the Tribunal has awarded a sum of Rs. 6,95,000/- with interest at the rate of 6% p.a. The appellant-insurance company being aggrieved by the exorbitant compensation awarded by the Tribunal taking the income of the deceased as Rs. 7,500/- p.m., has filed this appeal.

Sri. A.N. Krishna Swamy, learned counsel appearing for the appellant seriously disputed the quantum of compensation awarded by the Tribunal taking the income of the deceased as Rs. 7,500/- p.m., which is contrary to law. He contended that at the time of death, the deceased was aged about 62 years, no document has been produced to substantiate that he was a mason and expert in digging ring well and getting salary of Rs. 7,500/- p.m. In the absence of necessary documents, income of the deceased taken by the Tribunal at Rs. 7,500/- p.m. is on higher side. Further, the multiplier 8 applied by the Tribunal is also contrary to law. It is evident from the records that the deceased was aged about 62 years as on the date of death. As per the judgment of Hon�ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and another, reported in 2009 ACJ 1298 : (AIR 2009 SC 3104), the Tribunal ought to have applied the multiplier of 7. Further, the compensation awarded on other heads is also on higher side and sought for reassessment of the quantum of compensation.

On the other hand, Smt. Sandhya Rao P., learned advocate appearing for respondent Nos. 1 and 2/claimants argued in support of the judgment and award passed by the Tribunal and contended that considering the age, avocation and earnings of the deceased, the Tribunal has awarded just and fair compensation and hence ought for dismissal of the appeal.

I have carefully considered the argument addressed by the learned counsel for the parties and perused the judgment and award, oral and documentary evidence adduced by the parties and other relevant records.

It is not dispute that due to the rash and negligent riding of the offending motorbike, the deceased who was aged about 62 years sustained grievous injuries in the road traffic accident occurred on 17-10-2010 and died on 19-10-2010. The claimants had spent Rs. 25,343/- towards medical expenditure. Though the claimants claim that the deceased was earning a sum of Rs. 20,000/- p.m. by doing mason work, no document has been produced to substantiate the same except the oral assertion in the evidence of P.W.1 that the deceased was a mason and expert in digging ring well. However, the Tribunal has taken the income of deceased at Rs. 7,500/- p.m. The accident occurred during the year 2010. In the absence of any document, the income could be taken at Rs. 5,500/- or 6,000/- per month for the relevant period. In the instant case, the claimants have not produced any documents to establish the income of the deceased. However, the respondents have also not placed any documents to disprove the avocation of the deceased, therefore, it can be held that the deceased was doing mason work. Hence, taking the income of the deceased at Rs. 6,000/- p.m., deducting l/3rd towards personal expenditure and applying the multiplier 7 as per the judgment of the Hon�ble Supreme Court in Sarla Verma case : (AIR 2009 SC 3104) (supra), the claimants are entitled to a sum of Rs. 3,36,000/- towards loss of dependency. The first respondent herein has lost her husband�s love and affection and company. Hence, she is entitled for a sum of Rs. 1,00,000/- towards loss of consortium. Minor daughter has lost love and affection of the deceased. Hence, she is entitled to a sum of Rs. 50,000/-. The claimants are further entitled to a sum of Rs. 25,000/- towards medical expenditure and Rs. 45,000/- towards funeral expenses and transportation of dead body. In all, the claimants are entitled to a sum of Rs. 5,56,000/- as against a sum of Rs. 6,95,000/- awarded by the Tribunal. Accordingly, I pass the following:

ORDER

The appeal is allowed in part. The judgment and award dated 09-12-2013 made in MVC No. 319/2011 passed by the Motor Accident Claims Tribunal and III Additional Senior Civil Judge, Mangalore, D.K. is modified. The claimants are entitled for compensation of Rs. 5,56,000/- as against Rs. 6,96,000/- awarded by the Tribunal, with interest at the rate of 6% p.a.

The amount in deposit is directed to be transmitted to the Motor Accident Claims Tribunal, Mangalore.