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Judgment
H.S. Kempanna, J.—Though this appeal is listed for admission with consent of the learned Counsel for the respective parties, it is taken up for final disposal.
This appeal is by the claimants seeking for enhancement of compensation in respect of the death of the deceased Ramanjaneya in a motor accident.
For the sake of convenience, the parties in this appeal would he referred to by their rankings as they are arrayed in the claim petition before the Tribunal.
The brief facts of the case are:
The claimants are the wife, two minor children and father of the deceased Ramanjaneya. It is their case the deceased was aged 40 years, driver by profession, earning more than Rs. 8,000/- per month. He was hale and healthy as on the date of the accident.
On 06.02.2007 at about 7.30 p.m. when the deceased was proceeding riding motor cycle bearing Reg. No. CTO-1758 near Kadalaveni situated on Hosur-Gowribidanur Road, at that time one auto rickshaw bearing No. KA-40-1927 driven by its driver at a high speed in a rash and negligent manner came and dashed against the motor cycle of the deceased Ramanjaneya, in which he was proceeding. Due to the impact, the deceased was thrown on the road, on account of which he sustained injuries all over the body. Immediately he was shifted to the Government Hospital at Gowribidanur where he succumbed to the injuries while undergoing treatment. As Respondents 1 and 2 are the insurer and owner of the offending auto rickshaw, they are liable to pay compensation.
After service of notice, second Respondent-owner remained absent. Hence, he was placed ex-parte. The first Respondent/insurer appeared and contested the claim of the Petitioners. They contended that the accident in question has not token place on account of the negligent driving of the auto rickshaw by its driver. On the other hand, it took place due to the negligence of the claimant himself in riding his motor cycle. They further contended that the driver of the offending auto rickshaw did not posses any valid and effective licence to drive the vehicle as on the date of the accident. As such there is breach of terms and conditions of the policy issued. They also denied all other averments made. In the petition by the claimants and contended that they are not liable to pay any compensation, accordingly, sought for dismissal of the petition.
On the basis of the above pleadings, the Tribunal framed in all five issues.
The claimant in support of their case got examined the first claimant/wife of the deceased as PW.1. They produced in all 10 documents, which came to be marked as Exs.P.1 to P.10. On behalf of the contesting Respondents, they have not led any evidence or they have not produced any documents in support of their case.
The Tribunal on considering the oral and documentary evidence on record held that the accident in question has taken place solely on account of the rash and negligent driving of the offending auto rickshaw by its driver, as such the claimants have established actionable negligence. Further, the Tribunal looking to the evidence of PW.1/first claimant - wife of the deceased and documents placed on record has determined the income of the deceased at Rs. 3,000/-per month as against Rs. 8,000/- claimed, deducted 1/3rd towards the personal expenses of the deceased, applied the multiplier of 14 and awarded a sum of Rs. 3,36,000/- towards loss of dependency. Further the Tribunal also awarded a sum of Rs. 40,000/- towards conventional beads. Thus in all a sum of Rs. 3,76,000/-with interest at 6% per annum from the date of petition till realisation. It further saddled the liability of payment of compensation on the first Respondent/insurer.
The Appellants/claimants being aggrieved by the quantum of compensation are in appeal before this Court.
The learned Counsel appearing for the Appellants/claimants submitted that the Tribunal has erred in not awarding just and reasonable compensation towards loss of dependency, in as much as it has not properly taken the income of the deceased, it has deducted 1/3rd instead of 1/4th towards personal expenses and by applying the wrong multiplier, has awarded lesser compensation towards loss of dependency. Further he submitted that insofar as the conventional heads is concerned, the Tribunal has erred in not awarding any compensation towards loss to the estate. Hence, a case for enhancement is made out.
Par contra, the learned Counsel for the contesting Insurer supported the impugned judgment and award of the Tribunal.
Taking the rival submissions into consideration, the papers that are made available before me at the time of hearing, the posit that arises for my consideration is:
Whether Appellants/claimants have made out a case for enhancement?
The facts are not in dispute. The deceased Ramanjaneya having met with accident, injury sustained and having expired in the hospital while undergoing treatment are not in dispute. According to the claimants the deceased was aged 40 years, driver by profession, earning more than Rs. 8,000/- per month. In support of their claim to show that the deceased was working as driver, they have produced driving licence of the deceased, which is at Ex.P.10 - which is a Notarised copy. That goes to show that the deceased was driver by profession. Further the claimants have claimed that the deceased was earning a sum of Rs. 8,000/- per month. They have not produced any clinching material to substantiate the same, In the absence of any clinching material, the Tribunal having regard to the age and the date of the accident has determined the income of the deceased at Rs. 3,000/- per month. It may be mentioned that the deceased being a driver by profession is not in dispute as it is fortified from Ex.P.10. The deceased has left behind him the wife, two minor children and his father. That automatically follows, he must have been working hard to earn sufficient income for maintaining his family members who were depending on him. Despite the claimants, having not placed any clinching material on record in respect of the income having regard is his age, avocation and the date of accident which has taken place on 06.02.2007, it can safely be held that he would have earned a sum of Rs. 3,500/- per month and accordingly it is determined as the income of the deceased per month.
The next aspect to be considered is how much of deduction should be allowed towards personal expenses of the deceased out of his income. As already pointed out, the claimants are the wife, two minor children and father of the deceased. Therefore the proper deduction that has to be allowed in the facts of the case is 1/4th and not 1/3rd as has been done by the Tribunal. If 1/4th out of the monthly income of the deceased is deducted, it comes to Rs. 2,625/- (Rs. 3,500/- - Rs. 875/-), This would be the loss of dependency to the claimants per month on account of the death of the deceased in the accident. It is undisputed that the deceased was aged 40 years as on the date of the accident. Therefore, the proper multiplier that becomes applicable to the facts of the case would be 15, in view of what has been laid down by the Apex Court in Sarala Varma''s Case and not 14 as applied by the Tribunal. If monthly loss of dependency of Rs. 2,625/- is multiplied by 12 and the multiplier 15, the total loss of dependency comes to Rs. 4,72,500/- and that would be the total loss of dependency to the claimants on account of the death of the deceased Ramanjaneya in the accident.
Coming to conventional heads, the Tribunal has awarded a turn of Rs. 40,000/-, out of which it has awarded a sum of Rs. 10,000/- towards loss of consortium to the first Appellant/claimant, Rs. 20,000/-towards love and affection and Rs. 10,000/- towards transportation, funeral and obsequies ceremony. But it has failed to award any compensation towards loss to the estate. In the facts and circumstances, the claimants are awarded a further sum of Rs. 10,000/-towards loss to the estate in addition to Rs. 40.000/-awarded by the Tribunal. Thus the claimants are entitled to total compensation of Rs. 5,22,500/- with interest at 6% per annum from the date of petition till realisation in against Rs. 3,76,000/- with interest at 6% per annum from the data of petition till realisation. The break up of the compensation awarded is as under:
Towards loss of dependency (2625 x 12 x 15)
Rs. 4,72,500/-
Towards loss of consortiums To the first Appellant
Rs. 10,000/-
Towards loss to the estate
Towards lossof love and
Rs. 10,000/-Rs. 20,000/-
Towards transportation funeral and obsequies ceremonies.
Rs. 10,000/-
Total
Rs. 5,22,500/-
Thus, the claimants in all are entitled to total compensation of Rs. 5,22,500/- with interest at the rate of 6% per annum from the date of petition till realisation as against Rs. 3,76,000/- with interest at the rate of 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs. 1,46,500/- (Rs. 5,22,500/- - Rs. 3,76,000,/-) with interest at the rate of 6% per annum from the date of petition till realisation.
Accordingly, appeal has to succeed in part.
In result for the foregoing reasons, I proceed to pass the following:
ORDER
(i) The Appeal is allowed in part.
(ii) The impugned judgment and award passed toy the Tribunal is modified and the Appellants/claimants are awarded total compensation of Rs. 5,22,500/- with interest at the rate of 6% per annum from the date of petition till realisation as against Rs. 3,76,000/- with interest at the rate of 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced competition comes to Ra. 1,46,500/-with interest at 6% per annum from the date of petition till realisation.
(ii) First Respondent- Insurer shall deposit the entire enhanced compensation with interest before the Jurisdictional Tribunal within four weeks from the date of receipt of the copy of the judgment and award. Further it is made clear that the Appellant/claimants are not entitled to interest awarded on the enhanced compensation for a period of 311 days by virtue of the order passed by this Court on 21.03.2011 while condoning the delay in filing the appeal. The first Respondent/insurer shall deposit the enhanced compensation with interest accordingly excluding the interest for 311 days.
(iv) Out of the enhanced compensation of Rs. 1,4.6,500/- with interest a sum Rs. 30,000/- each with proportionate interest shall be paid to the minor Appellants/claimants 2 and 3 namely Ramesh and Thimmaraja, who are the children of the deceased. The amount awarded to the minor Appellants/claimants shall be deposited in their names in any Nationalised/Scheduled bank till they attain majority. First Appellant/claimant-mother is entitled to withdraw the interest accrued on the said deposit periodically. Further the amount deposited in their names on their attaining majority shall be deposited for a period of 5 years renewable by further period of 5 years. The said Appellants/claimants are permitted to withdraw the interest accrued on the said deposit periodically.
(v) Out of the balance enhanced compensation of Rs. 86,500/- with interest a sum Rs. 30,000/- with interest to ordered to be kept in deposit in the name of first Appellant/claimant/wife of the deceased in any Nationalised/Scheduled Bank for a period of five years renewable by further for a period of five years. She is entitled to withdraw the interest accrued on the said deposit periodically. Further a sum Rs. 20,000/- with proportionate interest is ordered to be released in her favour.
(vi) The balance of Rs. 36,500/- with proportionate interest is ordered to be released in favour of the fourth Appellant/claimant/father of the deceased.
Office to draw the award accordingly.