Shashikal Bai and Others vs S.P. Ashok and Others

N.K. Patil, J.—Though this appeal is posted for orders, it is taken up for final disposal with the consent of the learned counsel appearing for both the parties.

This appeal is by the claimants'' directed against the impugned judgment and award dated 16th February 2012 passed in MVC No. 454/2011 on the file of Presiding Officer, Fast Track Court -II & MACT, Shimoga (hereinafter referred to as Tribunal'' for short) for enhancement of compensation.

The Tribunal by its judgment and award has awarded a sum of Rs. 4,46,000/- under different heads with interest at 6% per annum from the date of petition till the date of deposit, as against the claim of the claimants for a sum of Rs. 30,00,000/-, on account of the death of the deceased late Kalya Naika, in the road traffic accident. It is the contention of the claimants that the quantum of compensation awarded by the Tribunal is inadequate and requires enhancement.

In brief, the facts of the case are:

"The 1st appellant is the wife, 2nd appellant is the minor son and 3rd appellant is the mother of the deceased and they have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against respondents contending that the deceased met with an accident on 26.01.2011 at about 03:00 p.m. when he had been to brick manufacturing spot for supervision and returning from the brick manufacturing spot on his Bajaj motorcycle bearing No. KA-14/J-3545 M-80 and while returning so, he picked up a minor child by name Girish Naika S/o Krishna Naika resident of his own village. While returning, the deceased Kalya Naika saw a bus in question being driven by the 1st respondent in a rash and negligent manner and was trying to overtake the lorry going ahead of him. The deceased as a precautionary measure stopped his bike on the left side of the road but even then the 1st respondent dashed against his motor bike. Due to the impact, he was thrown out of his motor bike to the distance of 30 feet and sustained fatal injuries and immediately he was shifted to Mc.Gann hospital, Shivamogga for treatment. In spite of taking medical care, he could not be saved and he succumbed to the injuries at about 03:00 p.m., on the same day. Therefore, the claimants filed claim petition before the Tribunal. The Tribunal after appreciating the oral and documentary evidence and other material available on record, has taken the income of the deceased at Rs. 3,000/- per month, deducted 1/3rd towards his personal expenses, assessed the contribution to the family at Rs. 2,000/- per month and by applying multiplier of 17, awarded a sum of Rs. 4,08,000/- and in all awarded a total compensation of Rs. 4,46,000/- with interest at 6% per annum, from the date of petition till the date of deposit. Not being satisfied with the compensation awarded by the Tribunal, the appellants have presented this appeal, for enhancement of compensation."

The submission of Sri. Showri H.R, learned counsel appearing for the appellants at the outset is that, income of the deceased be re-assessed at Rs. 6,500/-. He was a brick manufacturer by profession and the accident is of the year 2011. Due to his untimely death, the 1st appellant has lost her life partner and the 2nd and 3rd appellants have lost love and affection and inspiration, guidance, hopes and security in life. Therefore, the income of the deceased is to be re-assessed and 1/3rd is to be deducted towards personal expenses of the deceased, as claimants are three in number and the appropriate multiplier applicable to the age of the deceased be adopted and reasonable compensation be awarded. The Tribunal also erred in not awarding reasonable compensation towards conventional heads and he further submitted that the rate of interest awarded at 6% per annum is also on the lower side. Therefore, he submits to re-assess the income and award the reasonable compensation by modifying the impugned judgment and award passed by the Tribunal.

Per contra, the learned counsel appearing for the Insurer inter alia contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper. It 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 30 years at the time of accident, hale and healthy and looking after the welfare of the claimants and was working as brick manufacturer, earning a sum of Rs. 10,000/- p.m. He was the only earning member in the family. The claimants are none other than the wife, minor child and mother of the deceased, who have lost their future security due to his untimely death. The accident had occurred on 26.01.2011, taking these factors into consideration, we deem it appropriate to re-assess the income of the deceased at Rs. 6,000/- per month and 1/3rd has to be deducted from the said sum, since claimants are three in number. Thus, net income of the deceased works out to Rs. 4,000/- per month, which is the contribution of the deceased to the family. The age of the deceased was 30 years and the appropriate multiplier applicable to the said age is 17. Hence, we award a sum of Rs. 8,16,000/- towards loss of dependency''.

Further, record discloses that the 1st appellant/wife of the deceased was aged about 22 years and minor child was aged about 11 months and mother of the deceased was aged about 55 years and they are all dependent upon the income of the deceased and the wife has lost company of her husband at an young age. Son has lost love and affection, guidance and security and mother has suffered mental pain and agony. Taking these factors into consideration, we deem it appropriate to award a sum of Rs. 1,00,000/- towards loss of consortium'', Rs. 1,00,000/- towards loss of love and affection'', Rs. 25,000/- towards loss to estate'' and Rs. 25,000/-towards ''transportation and funeral expenses''.

In all, the claimants are entitled for a sum of Rs. 10,66,000/- as against Rs. 4,46,000/- awarded by the Tribunal.

As rightly pointed out by the learned counsel appearing for the appellants, the rate of interest awarded by the Tribunal at 6% p.a. is on the lower side as the accident occurred in the year 2011. Therefore, in the light of the judgments of Apex Court and this Court in catena of judgments, we deem it fit to award 9% interest per annum on the enhanced compensation.

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 16th February 2012 in MVC No. 454/2011 is hereby modified. The total compensation payable comes to Rs. 10,66,000/- as against Rs. 4,46,000/- awarded by the Tribunal. There will be an enhancement of Rs. 6,20,000/- with 9% interest per annum, excluding interest for the delayed period of 723 days in filing the appeal.

The respondent No. 3 -Insurer is directed to deposit the enhanced compensation with interest at 9% p.a. from the date of petition till the date of realization, excluding interest for the delayed period of 723 days in filing the appeal, within three weeks from the date of receipt of a copy of this judgment and award.

Out of the enhanced compensation, Rs. 2,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the 1st appellant/wife for a period of fifteen years and renewable for another fifteen years, with liberty to her to withdraw the interest accrued on it periodically.

Rs. 2,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the of 2nd appellant till he attains the age of 30 years with liberty to the 1st appellant to withdraw the periodical interest accrued on it till he attains the age of 21 years and thereafter he is at liberty to withdraw the interest accrued on it periodically till 30 years.

Rs. 1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the 3rd appellant/mother of the deceased for a period of five years and renewable for another five years, with liberty to her to withdraw the interest accrued on it periodically.

The remaining Rs. 1,20,000/- with proportionate interest shall be released in favour of the 1st and 3rd appellants, in equal proportion immediately, on deposit by the 3rd respondent-Insurer.

Draw the award, accordingly.