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Judgment
N.K. Patil, J.—This appeal by the appellants-claimants is arising out of the impugned judgment and award dated 23/09/2011 passed in MVC No. 8168/2009, by the XII Additional Small Causes Judge and Member, Motor Accident Claims Tribunal, Bangalore, (hereinafter referred to as ''Tribunal'' for short), for enhancement of compensation, on the ground that a sum of Rs. 3,03,300/- awarded by the Tribunal under different heads, after deducting 10% towards contributory negligence on the part of the deceased, with interest at 6% per annum against the claim of Rs. 30,00,000/-, on account of the death the deceased Sri. Srinivasa in the road traffic accident is inadequate. In brief, the facts of the case are:
The appellant Nos. 1 and 2 are the parents and appellant Nos. 3 to 5 are the brothers and sister of the deceased Sri. Srinivasa. They filed a claim petition before the Tribunal u/s 166 of M.V. Act, claiming compensation against the respondents, on account of the death of the deceased in the road traffic accident, contending that, on 18.10.2009 at about 1.00 p.m. one M. Manjunatha Kammar being the driver of the KSRTC bus bearing Reg. No. KA. 18.F.318 drove the same on NH-48 with high speed from Kunigal to Bangalore in a rash and negligent manner and near Milk Dairy, he dashed the bus against a pedestrian i.e. the deceased who was going along extreme left side on the road. As a result, deceased sustained severe head and other bodily injuries. Immediately, he was shifted to Mathrusri Hospital, Nelamangala, later on, he was referred to WMHANS Bangalore. But on his way at about 7.30 p.m. he succumbed to the injuries.
It is the further case of the appellants that, deceased was aged about 25 years, hale and healthy prior to the accident and was working as Mason under different Civil Contractors and thereby earning Rs. 9,000/- per month. Due to his untimely death, appellant Nos. 1 and 2 who were completely depending upon his earnings have lost their son, who was their future hopes and security and appellant Nos. 3 to 5 have lost their brother, apart from mental shock and agony.
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 file, has allowed the claim petition in part and awarded the compensation of Rs. 3,03,200/- under different heads, after deducting 10% towards contributory negligence on the part of the deceased, with interest at 6% per annum from the date of petition till its realization.
Being dis-satisfied with the quantum of compensation awarded by the Tribunal, the appellants have presented this appeal, for enhancement of compensation.
We have heard the learned counsel appearing for the appellants and learned counsel for Insurer.
Learned counsel for the appellants submitted that, the Tribunal has erred in assessing the income of the deceased at Rs. 4,000/- per month which is on lower side and it needs to be re-assessed. To substantiate the said submission, learned counsel for the appellants submitted that, deceased was a mason by profession, appellants are his parents, brothers and sister, he was hale and healthy prior to the accident and therefore, the Tribunal ought to have assessed the reasonable income of the deceased. Further, he submits that the Tribunal has erred in fixing 10% contributory negligence on the part of the deceased and the same is liable to be modified, on the ground that, due to rash and negligent driving by the driver of the bus the said accident had occurred. Further, he submits that the compensation awarded towards conventional heads is on lower side and it needs to be enhanced. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by awarding reasonable compensation towards loss of dependency and conventional heads and by setting aside the contributory negligence fixed at 10% on the deceased.
As against this, 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 and after due appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference.
After hearing the learned counsel for the parties and after perusing the materials available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:
Whether the compensation awarded by the Tribunal is just and reasonable?
The occurrence of the accident on 18.10.2009 and resultant death of the deceased are not in dispute. The dependants are the parents, brothers and sister of the deceased. It emerges from the judgment that, the Tribunal has assessed the income of the deceased at Rs. 4,000/- per month which is on lower side and it needs to be modified. It is the case of the appellants that, deceased was working as Mason under different Civil Contractors and earning Rs. 9,000/- per month. But they have not produced any evidence to prove the same. Having regard to the age and occupation of the deceased and year of the accident, we re-assess his income at Rs. 5,500/-. Out of which, if 50% ( Rs. 2,750/-) is deducted towards his personal expenses since he was a bachelor, his remaining income comes to Rs. 2,750/- per month. Accepting the multiplier of ''13'' adopted by the Tribunal taking the age of the younger parent-mother of the deceased as 50 years, as just and proper, we re-determine the loss of dependency at Rs. 4,29,000/- ( Rs. 2,750/- x 12 x 13) instead of Rs. 3,12,000/- awarded by the Tribunal and accordingly, it is awarded.
Having regard to the facts and circumstances of the case, we award a sum of Rs. 45,000/- towards conventional heads, such as, loss of love and affection, loss of estate and transportation and funeral expenses instead of Rs. 25,000/- awarded by the Tribunal. In all, the appellants are entitled to a total compensation of Rs. 4,74,000/- instead of Rs. 3,37,200/- awarded by the Tribunal.
So far as the submission made by the learned counsel appearing for the appellants that, the Tribunal has erred in fixing the contributory negligence at 10% on the part of the deceased and the same is liable to be set aside is concerned, the said submission cannot be accepted, for the reason that, the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has recorded the finding of fact that there is negligence on the part of the deceased and accordingly, fixed the negligence at 10% on his part, which is just and proper and it does not call for interference. Hence, the above submission made by the learned counsel appearing for the appellants is liable to be rejected and accordingly, it is rejected.
Out of the total compensation of Rs. 4, 74,000/-, if 10% ( Rs. 47,400/-) is deducted towards contributory negligence on the part of the deceased, the remaining compensation comes to Rs. 4,26,600/-. There would be an enhancement of Rs. 1,23,300/- ( Rs. 4,26,000/- - Rs. 3,03,300/-) with interest at 6% p.a., from the date of petition till its realization (excluding interest for the delayed period of 295 days in filing the appeal). For the foregoing reasons, the appeal filed by the appellants is allowed in part and the impugned judgment and award dated 23/09/2011 passed in MVC No. 8168/2009, by the XII Additional Small Causes Judge and Member, Motor Accident Claims Tribunal, Bangalore, is hereby modified, awarding the compensation of Rs. 1,23,300/- with interest at 6% p.a., from the date of petition till its realization, (excluding interest for the delayed period of 295 days in filing the appeal), in addition to the compensation awarded by the Tribunal.
The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 1,23,300/- with interest at 6% p.a., from the date of petition till the date of realization (excluding interest for the delayed period of 295 days in filing the appeal), within a period of three weeks from the date of receipt of a copy of this judgment.
Immediately on such deposit by the 1st respondent-Insurer, out of the enhanced compensation of Rs. 1,23,300/-, a sum of Rs. 80,000/- with proportionate interest shall be invested in Fixed Deposit, in the name of appellant No. 1, in any Nationalized or Scheduled Bank, for a period of five years and renewable by another five years, with liberty reserved to her to withdraw the interest accrued on it, periodically.
The remaining sum of Rs. 43,300/- with proportionate interest shall be released in favour of the appellant Nos. 1 and 2 in equal proportion, immediately.
Draw the award, accordingly.