Sarasamma and Others vs Krishna and Others

N.K. Patil, J.—Though these appeals are posted for Orders, with the consent of learned Counsel appearing for both the parties, the matter is taken up for final disposal.

These two appeals are respectively filed by the claimants and the insurer being aggrieved by the same Judgment and Award dated 22nd June 2010 passed in M.V.C. No. 303/2004 on the file of the IV Additional Senior Civil Judge and Motor Accident Claims Tribunal, Mysore. The Tribunal by its impugned Judgment and Award, awarded a sum of Rs. 12,49,000/- with interest at 6% p.a. from the date of petition till realization on account of the death of the deceased late Sri. Nagendra in the road traffic accident.

The learned counsel for claimants contended that the quantum of compensation awarded by the Tribunal is inadequate and requires enhancement. Whereas it is the case of the appellant/insurer that the quantum of compensation awarded by the Tribunal is disproportionate to the income of the deceased and the same is liable to be modified. Thus, both felt necessitated to present these two appeals respectively.

The brief facts of the case of the claimants/appellants on hand are that, the appellant No. 1 is the mother, appellant No. 2 is the father, appellant No. 3 is the wife and appellant Nos. 4, 5 and 6 are minor children and claimant No. 7 is the grand father of deceased late D. Nagendra. They have filed a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation against the respondents - Insurer, owner and the driver of the offending vehicle claiming compensation of Rs. 32,05,000/- with interest at the rate of 12% p.a. from the date of accident till the date of realization on account of untimely death of deceased in a road traffic accident that occurred on 08.04.2004 due to rash and negligent driving of the offending vehicle by its driver. It is the case of the claimants that, earlier, the deceased was working with private Mine owner and was getting monthly income of Rs. 4,000/- to Rs. 5,000/- and thereafter for the last two years, prior to the death, the deceased has started his own business under the name and style of "Shakti Drilling Compressor and Soft Rock Breakers" and having two tractors and other equipments for carrying on the said business and was having income of more than Rs. 15,000/- per month. The entire family depended upon the income of the deceased and he was the only bread earning member. On account of untimely death of the deceased, the appellants suffered mental pain and agony, wife has lost her husband at the young age, minor children have lost love and affection, inspiration and guidance of their father and parents are put to mental agony and the social and economic condition of the family is affected. Taking all these facts into consideration, they have filed claim petition before the Tribunal under Section 166 of the Motor Vehicles Act, claiming compensation against the Insurer, owner and driver of the offending vehicle.

The said matter had come up for consideration before the Tribunal. The Tribunal in turn after due consideration of the oral and documentary evidence and the material available on record, assessed the income of the deceased at only Rs. 6,000/- p.m. by deducting 1/3rd towards personal expenses and by applying the multiplier 18, awarded compensation of Rs. 12,49,000/- towards loss of dependency and conventional heads with interest at 6% p.a. from the date of petition till the date of realization. Being dissatisfied with the impugned Judgment and Award passed by the Tribunal, the claimants and the Insurer herein felt necessitated to present these two appeals respectively.

It is the submission of the learned Counsel appearing for the claimants/appellants at the outset that, the Tribunal has erred in taking the income of the deceased at only Rs. 200/- per day which is on the lower side as the deceased was working with private mine owner and was getting income of Rs. 4,000/- to Rs. 5,000/- p.m. and thereafter has started his own business under the name and style ''Shakti Drilling Compressor and Soft Rock Breakers'' and also owned two tractors. Non-production of credible documents does not take away the legitimate entitlement of claimants in assessing the income of the deceased. Therefore, he submits that the income of the deceased at Rs. 200/- per day is liable to be re-assessed for calculating compensation payable towards loss of dependency. Further, it is pointed out and submitted that the Tribunal ought to have awarded reasonable compensation towards loss of consortium, loss of love and affection, transportation and funeral expenses. Therefore, the impugned judgment and award passed by the Tribunal is liable to be modified by enhancing reasonable compensation. Further, he submitted that the rate of interest awarded by the Tribunal at only 6% p.a. is also on lower side, in the light of the catena of judgments of Apex Court and this Court, atleast 9% interest p.a. may be awarded.

As against this, the learned Counsel appearing for the insurer inter-alia contended and sought to substantiate the impugned Judgment and award passed by the Tribunal stating that the Tribunal has erred in assessing the income of the deceased at Rs. 6,000/- p.m. as the same is on higher side. The claimants have not produced any documents with respect to the exact income of the deceased. The deceased was aged about 28 years and except oral evidence, the claimants have not produced any documents regarding the private business and earning Rs. 500/- per day and also owning two tractors. Therefore, the Tribunal ought to have assessed the income of the deceased at best at Rs. 4,500/- to Rs. 5,000/- and ought to have deducted 1/4th towards personal expenses of the deceased, in the light of the judgments of Apex Court and this Court. Therefore, the impugned judgment and award passed by the Tribunal is liable to be modified by reducing the compensation awarded. Further, regarding rate of interest as the accident is of the year 2004 the rate of interest awarded by the Tribunal is just and proper and interference by this Court is not called for.

After careful consideration of the submissions of learned Counsel appearing for the claimants and the learned Counsel appearing for the insurer and after perusal of 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"?

The occurrence of accident and the resultant death of deceased in the road traffic accident are not in dispute. Further, it is not in dispute that the deceased was aged about 28 years at the time of accident and the deceased had owned two tractors and other equipments and also running his own concern by name and style "Shakti Drilling Compressor and Soft Rock Breakers". It is the case of the claimants that, the deceased was getting an income of Rs. 500/- per day and after deducting his personal expenses, he was contributing a sum of Rs. 500/- per day to the family. He was the only bread earning member. Out of his earning from his business he used to spend towards the welfare of his family, education of minor children, welfare of parents. Except the evidence of PW-1 no credible documents are produced to establish that he was getting reasonable income out of his avocation. The dependants are 6 in number i.e. wife aged about 24 years, minor children aged about 5 years, 4 years and 3 years respectively and parents aged about 60 years and 52 years respectively.

Having regard to the facts and circumstances stated above, we deem fit to assess the income of the deceased at Rs. 8,000/-per month. Out of which, as the dependents are 6 in number, 1/5th of the income is to be deducted towards his personal expenses i.e. Rs. 1,600/- p.m. and accordingly, the remaining contribution to the family comes to Rs. 6,400/- per month. The deceased was aged about 28 years and the appropriate multiplier applicable is 17. In the light of the judgment of Apex Court 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 , we re-determine the compensation towards loss of dependency at Rs. 13,05,600/- (i.e. Rs. 6,400/- x 12 x 17) as against Rs. 12,49,000/- awarded by the Tribunal.

Having regard to the facts and circumstances stated above, the fact that the wife lost her husband at an young age, four minor children have lost love and affection, inspiration and guidance of the father and the parents are put to mental agony, we deem fit to award Rs. 50,000/- towards loss of consortium, Rs. 70,000/- towards loss of love and affection, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses. In all, the claimants are entitled for a total compensation of Rs. 14,75,600/- as against Rs. 12,49,000/-awarded by the Tribunal. There will be enhancement of compensation by Rs. 2,26,600/- with interest at 6% p.a. from the date of petition till the date of realization.

Regarding the submission of the learned Counsel appearing for the appellants/claimants that interest at the rate of 9% p.a. may be awarded, the said submission cannot be accepted in the light of the fact that the accident has occurred on 08.04.2004 and the Tribunal has rightly awarded interest at 6% p.a. from the date of petition till payment. The same being just and proper, it does not call for interference by this Court.

Having regard to the facts referred above, the appeal filed by the claimants/appellants is allowed in part. The appeal filed by the respondent/Insurer is dismissed as devoid of merits. The impugned Judgment and Award dated 22nd June 2010 passed in M.V.C. No. 303/2004 on the file of the IV Additional Senior Civil Judge M.A.C.T., Mysore is hereby modified awarding Rs. 2,26,600/- with interest at 6% p.a. from the date of petition till realization of the amount, in addition to the compensation awarded by the Tribunal.

The Insurer/Oriental Insurance Company is directed to deposit the enhanced compensation with interest within a period of three weeks from the date of receipt of copy of this judgment and award.

Out of the enhanced compensation of Rs. 2,26,600/-, Rs. 1,00,000/- with proportionate interest shall be invested in Fixed Deposit in the name of the 3rd appellant - Smt. Pooja - wife of the deceased in any Nationalized or Scheduled Bank or Grameena Bank, for a period of ten years and renewable for another ten years and she is entitled to withdraw the periodical interest accrued on it.

Remaining amount of Rs. 1,26,600/- with proportionate interest shall be released in favour of the claimants/appellants Nos. 1, 2 and 3 - parents and wife of the deceased in equal proportion immediately.

The entire amount deposited by Insurance Company in M.F.A. No. 2064/2011 before this Court shall be transmitted to the jurisdictional Tribunal, immediately.

Draw the award, accordingly.