Rajamma and Others vs Techser Power Solution Pvt. Ltd. and Others

N.K. Patil, J.—This appeal by the claimants'' is directed against the impugned judgment and award dated 10th October 2013 passed in MVC No. 4852/2012 on the file of the XX Additional Small Causes Judge, Member, MACT, Bangalore, (SCCH-22) (hereinafter referred to as ''Tribunal'' for short), for enhancement of compensation.

The Tribunal by its judgment and award has awarded a sum of Rs. 9,59,000/-under different heads after deducting 20% contributory negligence on the part of the deceased with interest at 6% per annum from the date of petition till the date of deposit, on account of the death of the deceased late Sri Ramaknshnappa, in the road traffic accident.

In brief, the facts of the case are:

"The 1st appellant is the wife, 2nd, 3rd, 4th, 5th and 6th appellants are children and 7th appellant is mother of the deceased and they have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation on account of the death of the deceased in the road traffic accident, contending that, on 21.7.2012 at about 8.p.m when the deceased Ramaknshnappa was crossing the road near Venkatagirikote Bus Stop on NH-7, Bellary Bangalore road of Devanahalli taluk, Bangalore rural Dist, at that time, the driver of the car bearing REg. No. KA-02-MB-9208 drove it in a rash and negligent manner, came in a high speed from Chikkaballapur side towards Bangalore and dashed against the deceased. Due to which, deceased sustained grievous injuries and he was shifted to Manasa Hospital, at Devanahalli and after first aid treatment, he was shifted to M.S Ramaiah Hospital, but he succumbed to the injuries on the way to the Hospital. Due to the death of the deceased, the appellants have suffered mental agony and they have spent Rs. 1,00,000/- for transportation of the dead body, funeral and obsequies of the deceased. It is the further case of the appellants that, the deceased was aged about 46 years at the time of accident, hale and healthy and doing grapes business earning a sum of Rs. 30,000/- p.m and contributing his entire income to the family and looking after the welfare of the family and due to his untimely death, they suffered socially and economically. 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 record has allowed the claim petition in part and awarded the compensation of Rs. 9,59,000/- under different heads with interest at 6% p.a., from the date of petition till the date of deposit after deducting 1/5th towards personal expenses of deceased and 20% towards contributory negligence fixed on the part of the deceased. Not being satisfied with the compensation awarded by the Tribunal, the appellants have presented this appeal, for enhancement of compensation."

The submission of Sri K.V. Shyama Prasada, learned counsel appearing for the appellants is that, the Tribunal has failed to assess the just and reasonable income of the deceased and the income assessed by the Tribunal is on the lower side since the accident has occurred on 21.7.2012 and out of it 1/5th is deducted and applied multiplier of ''13''. The Tribunal has erred in not awarding reasonable compensation towards injury, pain and suffering, medical expenses, conveyance, nourishing food and attendant charges, loss of amenities, comfort and happiness and loss of future income.

Further, the Tribunal has erred in fixing 20% contributory negligence on the part of the deceased which is contrary to the oral and documentary evidence as there is no negligence on the part of the deceased. Therefore, in the light of judgment of Apex Court and this Court, the impugned judgment and award passed by the Tribunal is to be modified by awarding just and reasonable compensation under all heads, fixing entire negligence on the part of the driver of the offending vehicle.

Per contra, Sri. A.M. Venkatesh for Sri. H.S. Lingaraj learned counsel appearing for R2 inter alia contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper and is passed after considering the oral and documentary evidence and interference by this Court is not called for.

After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arise for consideration is:

"Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"

It is not in dispute that the deceased died in the road traffic accident. Further it is not in dispute that, the deceased was aged about 46 years at the time of accident, hale and healthy and looking after the welfare of the appellants. The income of the deceased is stated to be Rs. 30,000/- p.m. The accident has occurred on 21.7.2012 and by profession he was doing grapes business. Due to his un-timely death, claimants have lost their only breadwinner and facing great mental shock and monetary loss. The claimants are none other than the wife, children and mother of the deceased, who have lost their future security due to his untimely death. Having regard to all these aspects we are of the view that the appellants have made out a case for enhancement of reasonable compensation under different heads. Having regard to the age, avocation and year of accident, we can safely re-assess the income of the deceased at Rs. 8,000/- per month, to meet the ends of justice as against the income assessed by the Tribunal. Out of it, if 1/5th is deducted towards the personal expenses of the deceased, it comes to Rs. 6,400/-. In the light of the decision in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 , the appropriate multiplier applicable is 13. Accordingly, the appellants are entitled towards loss of dependency at Rs. 9,98,400/- (Rs. 6,400/-x12x13).

Considering the facts and circumstances of the case that, the wife has lost her life partner at an young age and the minor children have lost the love and affection, inspiration and guidance in life and mother has lost future security, we deem it fit to award Rs. 1,00,000/- towards loss of consortium, Rs. 25,000/- towards loss of estate, Rs. 1,75,000/- towards loss of love and affection, and Rs. 25,000/- towards funeral and transportation expenses. In all, the claimants are entitled for Rs. 13,23,400/-.

Regarding contributory negligence fixed by the Tribunal at 20% on the part of the deceased, it can be seen that the Tribunal after critical evaluation of the oral and documentary evidence available on file, particularly Ex. P3 sketch has fixed contributory negligence at 20% on the part of the deceased. The reasoning given by the Tribunal at Para-15 of its judgment is just and proper, as the same is passed on the basis of documentary evidence available on file. Hence interference by this Court is not called for and we uphold the contributory negligence fixed on the part of the deceased at 20%.

Therefore from the total compensation of Rs. 13,23,400/, if 20% towards contributory negligence on the part of the deceased is deducted, it comes to Rs. 10,58,720/- as against Rs. 9,59,000/-awarded by the Tribunal.

Having regard to the facts and circumstances of the case as stated above, appeal is allowed in part. The impugned judgment and award passed by the Tribunal dated 10th October 2013 in MVC No. 4852/2012 is hereby modified. The total compensation payable comes to Rs. 10,58,720/- as against Rs. 9,59,000/- awarded by the Tribunal. There will be an enhancement of Rs. 99,720/- with 9% interest per annum.

The 2nd respondent is directed to deposit the enhanced compensation of Rs. 99,720/- with interest at 9% p.a., from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment.

Rs. 99,720/- with 9% interest per annum shall be released in favour of the 1st and 7th appellant/wife and mother of the deceased, immediately, on deposit by the 2nd respondent, in equal proportion.

Draw the award, accordingly.

Sri. H.S. Lingaraj, learned counsel is permitted to file vakalath on behalf of R2 within four weeks.