Ravi vs Kashinath Shinde

Aravind Kumar, J.—Claimants are in appeal, seeking for enhancement of compensation, not being satisfied with quantum of compensation awarded by Tribunal in respective claim petitions.

By consent of learned advocates appearing for parties, these appeals are taken up for final disposal. I have heard the arguments of Shriyuths P.G. Cikkanaragund, Laxman B. Mannoddar and Smt. Preeti Shashank (appearing on behalf of Srikant J. Bhat). Perused the judgment and awards in question.

Tribunal after considering the pleadings of the parties and on evaluation of evidence tendered by respective parties, has awarded compensation in respective claim petition under various headings as enunciated in the tabular column noted hereunder:

Claimants are contending that compensation awarded by the Tribunal is on the lower side and income of deceased or the injured has not been considered in proper prospective and hence, it has resulted in abysmally very less compensation being awarded.

Shri Laxman B. Mannoddar would submit that what has been awarded by Tribunal is just and reasonable and it does not call for any enhancement of compensation.

Smt. Preeti Shashank, learned counsel appearing on behalf of Shri Srikant J. Bhat, would submit that liability has been fastened on the insurer of the offending lorry bearing registration No. MH-11/AL-6834 and hence, said finding may be affirmed. She would submit that insurer of Maruti Omni was in no way responsible for the accident in question and as such, Tribunal has rightly exonerated the insurer of Maruti Omni and as such, question of fixing any liability on insurer of Maruti Omni vehicle does not arise and as such, she prays for affirming the respective judgment and awards passed by the Tribunal.

Having heard the learned advocates appearing for parties and on perusal of judgment and awards passed in question, it would clearly indicate that on 18.05.2008, deceased as well as injured persons were travelling in a Maruti Omni bearing registration No. KA-30/M-1790 from Honavar towards Dharmasthala and when said vehicle reached near Kirimanjeshwara on NH-17, the offending lorry bearing registration No. MH-11/AL-6834 coming from opposite direction has dashed to Maruti Omni which was proceeding on the extreme left side or in other words, driver of lorry coming from opposite direction has proceeded to the extreme right side (on wrong side) and dashed against Maruti Omni. On account of which four persons died and remaining were injured. Hence, seeking compensation they filed claim petitions. As already noticed hereinabove, Tribunal has awarded compensation in each of the petitions and liability is fixed on the insurer of lorry, in as much as, it has been categorically held by the Tribunal that driver of the lorry was solely responsible for the accident in question. Insurer of lorry has not filed any appeal and this would indicate that liability of insurer of lorry is admitted. Hence, finding recorded by Tribunal in this regard is not disturbed or in other words it is hereby affirmed.

Now let me examine as to whether in each of the claim petitions, compensation awarded by Tribunal to claimants is just and reasonable or whether it requires to be modified or enhanced and if so, to what extent?

Re. M.F.A. No. 22322/2011 (M.V.C. No. 151/2008):

Minor son of Smt. Savitri Naik had filed claim petition seeking compensation for death of his mother Smt. Savitri Naik. Claimant was aged about 15 years as on the date of demise of his mother. Tribunal has taken income of the deceased at Rs. 3,000/- per month by construing her avocation as coolie. Accident had occurred in the year 2008. She was an able bodied person, aged about 32 years and was not suffering from any ailment or disease. As such, this Court is of the considered view that income that could be safely taken would be Rs. 4,000/- per month, instead of Rs. 3,000/- per month. Accordingly, construing the income of Rs. 4,000/- per month, compensation requires to be re-determined, since claimant alone was dependent on her income, 50% requires to be deducted towards living expenses and when so deducted, actual loss of dependency would be Rs. 2,000/- per month. Accordingly, compensation is re-determined as under:

Tribunal has awarded a sum of Rs. 3,16,000/- and thus, claimant would be entitled to additional compensation of Rs. 1,18,000/-. Accordingly, it is hereby awarded.

Re. M.F.A. No. 22321/2011 (M.V.C. No. 150/2008):

Claimant had sustained fracture of both bones of right leg i.e., tibia with medial malleolus as per the medical evidence available on record which came to be accepted by Tribunal. He had been treated as inpatient at Chinmayi Hospital, Kundapur, from 18.05.2008 to 05.06.2008. Compensation awarded under all heads except towards loss of amenities and towards food and nourishment is just and proper. Hence, under these two heads compensation requires to be enhanced by taking into consideration that claimant had suffered comminuted fracture of tibia with medial malleolus of right leg and there being disability to an extent of 11% to the right lower limb. Thus, an additional compensation of Rs. 15,000/- towards loss of amenities and Rs. 5,000/- towards food and nourishment, if awarded it would meet the ends of justice. Accordingly, it is awarded. Thus, claimant would be entitled to an additional compensation of Rs. 20,000/-.

Re. M.F.A. No. 22320/2011 (M.V.C. No. 149/2008):

Tribunal having noticed that claimants 2 to 4 are all major sons of deceased and having found that in cross-examination of P.W. 1 she has admitted that they are earning independently, Tribunal has rightly held that dependency on the income of deceased, if any, would be wife i.e., 1st claimant and on said basis taking into consideration the age of deceased being 60 years, as per postmortem report, Ex. P-3, it has awarded a sum of Rs. 2,16,000/- towards loss of dependency by construing his income at Rs. 3,000/- per month and after deducting 1/3rd towards living expenses by taking number of persons who were living with deceased into consideration. There is no infirmity insofar as the said award of compensation towards loss of dependency is concerned. However, while awarding compensation under the conventional heads towards loss of estate nothing has been awarded and as such, a sum of Rs. 10,000/- if awarded, it would meet the ends of justice. Accordingly, it is awarded. Compensation awarded towards funeral expenses and transportation of dead body requires to be marginally enhanced by awarding additional sum of Rs. 7,000/- and accordingly it is hereby awarded. Thus, in all claimant would be entitled to an additional compensation of Rs. 17,000/- and same is hereby awarded.

Re. M.F.A. No. 22323/2011 (M.V.C. No. 152/2008):

Deceased was aged about 40 years and was carrying on the avocation of a coolie. Though it was claimed that he was earning Rs. 6,000/- per month, Tribunal has considered income of deceased at Rs. 4,000/- per month which is marginally on the lower side. Taking into consideration that deceased was able bodied person, aged about 42 years, as on the date of accident and was a coolie at Karwar, income that can be construed that he was earning as on the date of his demise can be at Rs. 4,500/- per month. Accordingly, considering the income at Rs. 4,500/- per month and taking note of the fact that claimant alone i.e., his minor son was dependent on him, 50% is deducted and when so deducted, net loss of dependency to claimant would be at Rs. 2,250/- per month. Multiplier of 14 adopted by Tribunal is erroneous, in as much as, as per postmortem report, Ex. P-102 deceased was aged about 40 years. Hence, as per dicta in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , appropriate multiplier for the age group of 36 to 40 would be 15 and same is being adopted for computation of loss of dependency which would be as under:

Rs. 4,500/2 = Rs. 2,250 X 12 X 15 = 4,05,000/-.

Under the conventional heads, a sum of Rs. 28,000/- is awarded and in substitution to the same, this Court hereby awards a sum of Rs. 50,000/-. Thus in all claimant would be entitled to a sum of Rs. 4,55,000/-. Since Tribunal has awarded a sum of Rs. 3,65,000/- claimant would be entitled to an additional compensation of Rs. 91,000/-. Accordingly, it is awarded.

Re. M.F.A. No. 22324/2011 (M.V.C. No. 155/2008):

Claimant had sustained avulsion fracture of tibial spine apart from tenderness over the left side of chest and lacerated wound over the forehead as evidenced from wound certificate Ex. P-4. Ex. P-26 discharge summary would indicate that claimant was treated as an in-patient at Chinmayi Hospital, Kundapur for one day. On account of there being no evidence with regard to disability sustained by claimant, Tribunal has rightly not awarded any compensation towards loss of future income. However, considering the nature of injuries sustained and period of treatment taken, I am of the view that compensation awarded towards loss of amenities is on the lower side. Hence, I am of the considered view that an additional compensation of Rs. 15,000/- is required to be awarded and it would meet the ends of justice. Accordingly it is hereby awarded. Compensation towards food and nourishment is also enhanced by awarding additional sum of Rs. 2,500/-, since injuries sustained by claimant i.e., fracture of tibial spine would have resulted in claimant being immobile atleast for a period of one month and she would be under treatment for the said period. Hence, an additional sum of Rs. 2,500/- is awarded towards nourishment i.e., in all claimant would be entitled to an additional sunk of Rs. 17,500/-.

Hence, for the reasons aforestated, I am of the considered view that claimants would be entitled to additional compensation as awarded hereinabove. In the result, I proceed to pass the following:

ORDER

i) Appeals are hereby allowed in part.

ii) Judgment and awards passed in MVC Nos. 151/2008, 150/2008, 149/2008, 152/2008 and 155/2008 dated 27.10.2010 are hereby modified and an additional compensation of Rs. 1,18,000/-, Rs. 20,000/- Rs. 17,000/-, Rs. 91,000/- and Rs. 17,500/- respectively is hereby awarded which shall carry interest @ of 6% p.a. from the date of petition till date of payment or deposit whichever is earlier.

iii) Additional compensation awarded hereinabove in M.V.C. Nos. 150/2008, 149/2008, 155/2008 being marginal, same is ordered to be released in favour of respective claimants.

iv) Compensation awarded in M.V.C. Nos. 151/2008 and 152/2008, 50% with proportionate interest shall be kept in a fixed deposit in the name of claimants in any Nationalised Bank or Scheduled Bank of claimants'' choice for a period of three years. Claimants would be entitled to draw periodical interest on the fixed deposit. Balance 50% with proportionate interest is ordered to be released in favour of respective claimants.