Padmamma vs H.B. Ramegowda and Others

N.K. Patil, J.—This appeal by the claimant is directed against the judgment and award dated 7th February 2013, passed in MVC No. 01/2010, by the Senior Civil Judge & J.M.F.C, K.R Pet, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 3,71,000/- awarded in favour of the claimant as against her claim for Rs. 26,77,000/-, is inadequate.

The facts in brief are that, the sole claimant is none other than the mother of deceased M.A. Ananda. She filed the claim petition under Section 166 of the Motor Vehicles Act, contending that at about 10:30 P.M, on 05-09-2009, when the deceased was returning back to his native village Malagur in Bajaj Pulsor Motor Cycle bearing Registration No. KA-45/J-3831 as pillion rider, the rider of motor cycle near KEB Sub station cross Nagamangala-Shravanabelagola main road, rode the same at a high speed, in a rash and negligent manner and dashed against the deceased, due to which, the deceased sustained multiplier grievous injuries to several vital part of the body, viz. head, nose, ears, forehead, fracture of frontal bone and injury to brain, etc. and immediately he was taken to Hospital and on the way, unfortunately, he succumbed to the said injuries sustained in the road traffic accident.

It is the case of the appellant that, the deceased was aged about 29 years and an agriculturist, owning coconut and Arecanut garden, growing commercial crops like banana, sugarcane, etc. apart from owning a TATA Sumo Car, renting the same on hire basis and also owner cum-driver of the said Car, earning a sum of Rs. 25,000/- per month and hale and healthy prior to the accident. On account of the untimely death of the deceased, the sole claimant/mother has lost the love and affection, social and moral support apart from financial security and therefore, she has to be compensated reasonably.

On account of the death of the deceased, the appellant filed the claim petition before the Tribunal, seeking compensation against the respondents. The said claim petition had come up for consideration before the Tribunal on 7th February, 2013. 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. 3,71,000/- under different heads, with 8% interest per annum, from the date of petition till the date of payment. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation.

We have gone through the grounds urged in the memorandum of appeal and heard learned counsel appearing for appellant and learned counsel appearing for Insurer, for quite some time.

The submission of the learned counsel appearing for appellant, at the outset is that, the Tribunal grossly erred in assessing the income of the deceased at only Rs. 4,000/- per month. The same is on the lower side and liable to be re-assessed for the reason that the deceased was aged about 29 years and an agriculturist by profession, owning coconut and arecanut garden and the sole earning member in the family and to substantiate the same, the appellant has produced Ex. P3, seven pahani extracts and also Ex. P12, statement of milk dairy. Therefore, he vehemently submitted that reasonable income may be re-assessed and deducting 50% towards personal expenses of the deceased and by adopting the multiplier of T4'', considering the age of the mother as 45 years, compensation towards loss of dependency may be awarded. Further, he submitted that the claimant is also entitled to higher compensation towards the conventional heads as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, as against only Rs. 35,000/- awarded by Tribunal. Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to be modified by enhancing the compensation reasonably.

As against this, learned counsel appearing for second respondent - Insurer sought to justify the impugned judgment and award stating that the same is passed after due appreciation of the oral and documentary evidence available on file and the Tribunal has rightly assessed the income of the deceased having regard to his age, evocation and the year of accident, for the reason that the agricultural income and also the income from renting out the Tata sumo Car on hire basis would continue to come. Therefore, interference in the impugned judgment and award passed by Tribunal is not called for. However, he fairly submitted that reasonable monthly income may be reassessed by adding the supervisory charges towards agriculture etc.

After hearing learned counsel for the parties, and after careful perusal of the judgment and award passed by the Tribunal, the only point that arise for our consideration in this appeal is,

"Whether the quantum of compensation awarded by Tribunal on account of the death of deceased, is just and reasonable?"

The undisputed facts of the case are the occurrence of accident and the resultant death of the deceased. It is also not in dispute that the deceased was aged about 29 years and doing agriculture and also owning a Tata Sumo car. It is stated that he was owning coconut and arecanut gardens and growing commercial crops like banana, sugarcane, etc. and also the owner cum driver of the said Car and also renting the said Car on hire basis, and earning not less than a sum of Rs. 25,000/- per month. To substantiate the same, the appellant has produced Ex. P3 -seven pahani extracts and Ex. P12 - statement of milk dairy. Both the said documents are not taken into consideration by the Tribunal for assessing the income of the deceased on the ground that the said agricultural lands are not owned by the deceased and some of the said agricultural lands are owned by the appellant herself, i.e. the mother of deceased and that the name of the member of the milk dairy is not mentioned in the said statement. But, it must be seen that the Tribunal is also not justified in assessing the income of the deceased as only Rs. 4,000/- per month. The accident is of the year 2009. Therefore, having regard to the age, avocations, year of accident and also the fact that he was the only earning member in the family and also supervising the agricultural lands stated to have been owned by the mother of deceased, we re-assess the income of the deceased at Rs. 5,500/- per month, to meet the ends of justice. Since the deceased was a bachelor, we deduct 50% towards personal expenses of the deceased. Accordingly, If 50% (i.e. Rs. 2,750/-) is deducted from Rs. 5,500/- towards his personal expenses, the net income would be Rs. 2,750/- per month. The deceased was aged about 29 years. But, as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the age of younger parent of the deceased should be taken into consideration for adopting the multiplier, for calculating loss of dependency. In the instant case, the mother is the only parent surviving Therefore, for the age of the mother of the deceased being 45 years, the proper multiplier applicable is ''14''. Thus, the compensation towards loss of dependency would work out to Rs. 4,62,000/- (i.e. Rs. 2,750/- x 12 x''14'') as against Rs. 3,36,000/- awarded by Tribunal.

Further, the Tribunal has erred in awarding only a sum of Rs. 35,000/- towards conventional heads. The same is on the lower side. As per the decision of the Apex Court in Sarla Verma''s case (supra), we award a sum of Rs. 50,000/- towards conventional heads, such as loss of estate, loss of love and affection and transportation and funeral expenses as against Rs. 35,000/- awarded by Tribunal. Thus the total compensation works out to Rs. 5,12,000/- as against Rs. 3,71,000/- awarded by Tribunal.

In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed in part.

The impugned judgment and award dated 7th February 2013, passed in MVC No. 01/2010, by the Senior Civil Judge & J.M.F.C., K.R. Pet, is hereby modified, awarding a sum of Rs. 5,12,000/- as against Rs. 3,71,000/- awarded by the Tribunal, with interest at 8% per annum on the enhanced sum, from the date of petition till the date of realization. Thus, there would be enhancement of compensation by a sum of Rs. 1,41,000/- with 8% interest per annum from the date of petition till the date of realization.

The second respondent - Insurer is directed to deposit the enhanced compensation of Rs. 1,41,000/-, with interest thereon at 8% per annum, within three weeks from the date of receipt of copy of the judgment.

Immediately on such deposit by the Insurer, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in the name of appellant/mother of deceased, in Fixed Deposit, in any scheduled/Nationalized/Grameena Bank, for a period of five years, renewable by another five years, with liberty reserved to her to withdraw the periodical interest.

Remaining sum of Rs. 41,000/- with proportionate interest shall be released in favour of the appellant, immediately

Office to draw award, accordingly.