Shrilatha vs Manjunatha Virupakshappa Purad

,,

Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.",,

This appeal is preferred against the judgment and award dated 09.11.2012 rendered by the II Addl. District Judge, Member, MACT-3, D.K.",,

Mangalore, in MVC No.757/2010 seeking enhancement of compensation.",,

The factual matrix of the appeal is as under:,,

It is stated in the claim petition that the husband of petitioner no.1 by name K.V.Ramanathan was having autorickshaw bearing Reg.No.KA-21/9471,,

and he himself was running the said autorickshaw on hire basis and on 25.4.2010, the said Ramanathan took the passenger in the autorickshaw from",,

Thotathadi to a place called Hara in Kokkada village and after leaving them, he was returning from Thotatadi by driving the said autorickshaw and",,

when he came near the Boodujalu in Nidle village, Belthangady taluk, at that time at about 6.30 p.m., a Toofan trax bearing Regn.No.KA.27/7135",,

driven by its driver in a very high speed and in a rash and negligent manner came from opposite direction directly from Nidle and dashed to the,,

Autorickshaw. Due to the said impact, deceased sustained grievous injuries and later succumbed to the injuries.",,

It is contended by the petitioners that prior to the accident, the deceased was hale and healthy and was aged 40 years and he was a registered",,

owner cum driver of the autorickshaw and was earning Rs.500/-per day. Having lost the financial assistance, dependency, love and affection of the",,

deceased, the petitioners being the wife, children and mother, filed the claim petition seeking compensation.",,

After service of notice, respondent no.1 remained absent and was placed exparte all through the proceedings. Respondent no.2 entered appearance",,

and filed written statement denying the petition averments and sought for dismissal of the claim petition.,,

Based on the pleadings of the parties, the Tribunal framed the issues. In order to prove their case, petitioner no.1 got examined herself as PW.1 and",,

got examined two witnesses as PW.2 and PW.3 and got marked Exs.P1 to P26. On behalf of respondents, the insurance company got examined the",,

driver of the offending vehicle as RW.1 and got marked Ex.R1. After hearing arguments of learned counsel for the parties on both sides and on,,

appreciation of oral and documentary evidence available on record, the Tribunal passed the impugned judgment, awarding compensation of",,

Rs.7,68,000/- with interest @ 6% p.a. from the date of petition till the date of deposit. Being not satisfied with the quantum of compensation awarded",,

by the Tribunal, the appellants/petitioners are before this Court seeking enhancement by urging various grounds.",,

Learned counsel for appellants contends that the award passed by the Tribunal is on lower side, inadequate and contrary to the facts, evidence and",,

probabilities of the case. Hence, the same is liable to be modified by this Court. Further, he contends that the deceased was aged 40 years as on the",,

date of accident and by driving his own autorickshaw was earning an income of Rs.500/- per day, but the Tribunal erred in taking monthly income of",,

Rs.5,000/- of the deceased while calculating loss of dependency. Further, the Tribunal also erred in adopting multiplier of 14 instead of 15, as the age",,

of the deceased was 40 years and not 41 years. Further, the compensation awarded under the conventional heads is also inadequate and the same",,

needs to be enhanced. On all these grounds, learned counsel for the appellants seeks for interference of this Court and prays for allowing the appeal",,

by enhancing the compensation.,,

Per contra, Sri K.Poornabodha Rao, learned counsel for the insurance company contends that the accident occurred due to rash and negligent",,

driving of the autorickshaw by deceased himself and he came in high speed and came to wrong side and dashed to the said toofan trax vehicle. The,,

deceased is also guilty of contributory negligence. The driver of the offending vehicle was not holding valid driving licence to drive the vehicle as on,,

the date of accident. It is further contended that the Tribunal, on appreciation of oral and documentary evidence on record, has rightly assessed the",,

income of the deceased and awarded just and fair compensation, and the same does not call for any interference and prays for dismissal of the",,

appeal.,,

In the context of the contentions as taken by the learned counsel for the appellants and so also, learned counsel for respondent â€" insurance",,

company, it is not in dispute that the accident occurred due to actionable negligence on the part of the offending Toofan Trax by its driver, as a result",,

of the said accident, K.V.Ramanathan died. Ex.P1 is the FIR, Ex.P2 is the complaint, Ex.P3 is the police notice, Ex.P4 is the spot mahazar, Ex.P5 is",,

the P.M.report, Ex.P6 is the spot sketch, Ex.P7 is the IMV report, Ex.P8 is the inquest report and Ex.P9 is the charge sheet.",,

PW.1 being the wife of deceased, in her evidence has reiterated the petition averments and contended that due to the rash and negligent act of the",,

driver of the Toofan trax the accident has occurred and deceased succumbed to the injuries. She has stated that at the time of accident deceased,,

Ramanathan was having autorickshaw and he himself was driving the said autorickshaw and was earning Rs.500/- per day. In this regard,",,

R.C.extract and D.L. has been produced as Ex.P13 and Ex.P22. The petitioners have also got examined the Bank Manager as PW.3 and he has,,

averred about the pigmy deposit receipt Ex.P24 and also statement of account at Ex.P25 and also account extract taken by Ramanathan in respect of,,

agricultural loan which is marked as Ex.P26. But the Tribunal has taken Rs.5000/- p.m as the income of the deceased after deducting his expenses.,,

The accident is of the year 2010. In the absence of proof of income, there are certain guidelines and illustrations as per the Lok Adalath chart. Hence,",,

for the year 2010, the notional income of the deceased should be taken at Rs.6,500/-p.m.",,

As per Ex.P22 - DL, the age of deceased was 40 years, 05 months and 02 days as on the date of accident, but the Tribunal has wrongly held that",,

he was running 41 years and in that regard, multiplier of 14 was adopted. But the deceased had not completed 41 years as on the date of accident and",,

in this regard only completed year has to be taken into account. Therefore, as per the decision of Hon’ble Supreme Court in Sarala Varma vs.",,

Delhi Transport Corporation reported in 2009 ACJ 1298, the deceased will come under the age group of 36-40 years when his age is taken as 40.",,

Accordingly, the proper multiplier would be ‘15’ instead of ‘14’.",,

In the petition it is stated that the petitioner no.4 being the mother of the deceased is residing with another son and she is not dependent on the,,

deceased. Considering this aspect, the Tribunal held that dependents are only three and accordingly, deducted 1/3rd towards personal expenses.",,

Merely because the mother is residing with another son, it cannot be said she is not entitled for any compensation. She being widow and having lost",,

her beloved son in an accident has lost love and affection and companionship of the deceased. Therefore, in my opinion, petitioner no.4 being the",,

mother of deceased is also entitled for compensation and instead of deducting 1/3rd toward personal expenses of deceased, I deem it appropriate to",,

deduct 1/4th. Further, as per the decision of Hon’ble Apex Court in National Insurance Co.Ltd vs. Pranay Sethi (AIR 2017 SC 5157 )future",,

prospects is also to be added to the income of the deceased. Accordingly, the compensation towards loss of dependency is re-worked out as under:",,

Income per month 6,500",,

Add: future prospects @ 25% 1,625",,

Particulars,"Compensation

awarded by

MACT","Compensation

by this Court

Loss of dependency,"7,28,000","10,96,920

Loss of consortium,"10,000",

Loss of love and

affection","10,000",

Loss of estate,"10,000",

,"10,000",

Loss of filial

consortium",-,"40,000

Loss of parental

consortium",-,"80,000

Total,"7,68,000","12,86,920