Smt. N. Bharathamma, Sri. R. Kiran Kumar, Master Charan Kumar and Master Arun Kumar Since appellant Nos. 3 and 4 are Minors, rep. by their natural guardian and Mother vs Mr. Syed Masood Matheen and M/s. Bazaz Allianz General Insurance Co. Ltd.

N.K. Patil, J.—This appeal by the claimants is directed against the judgment and award dated 23rd January 2010, passed in MVC No. 484/2009, by the IX Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal-7, Bangalore (SCCH-7), (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 3,17,250/- awarded in favour of the claimants, after deducting 25% towards contributory negligence on the part of the deceased Ramakrishnappa, as against their claim for Rs. 15,00,000/-, is inadequate. The facts in brief are that, the claimants are the wife and three children of the deceased Ramakrishnappa. They filed the claim petition u/s 166 of the Motor Vehicles Act, contending that, at about 10:00 P.M., on 03-11-2008, when the deceased after completion of his Bar work went to diner, while crossing the road from west to east on Bellary road, at that time, a Car came on National High Way from South to North direction from Yelahanka side driven by its driver in a rash and negligent manner and dashed against the deceased. Due to the impact, the deceased fell down on the bonnet of the Car and in spite of the same, the driver of the said Car did not stop the vehicle at the accident spot. On account of the same, the deceased Ramakrishnappa died on the spot.

It is the case of the appellants that, the deceased was aged about 35 years and working at Bar and Restaurant, earning a sum of Rs. 10,000/- per month and was hale and healthy prior to the accident. On account of the untimely death of the deceased, the appellants have lost the love and affection, inspiration and guidance, apart from social, financial and moral support and therefore, it is their case that they have to be compensated reasonably.

On account of the death of the deceased, the appellants filed the claim petition before the Tribunal, seeking compensation against the respondents. The said claim petition had come up for consideration before the Tribunal on 23rd January, 2010. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 4,23,000/-, but after deducting 25% towards contributory negligence on the part of the deceased Ramakrishnappa, awarded a sum of Rs. 3,17,250/- under different heads, with 6% interest per annum, from the date of petition till the date of payment. Being dissatisfied with the quantum of compensation awarded by the Tribunal as also the contributory negligence fixed on the part of the deceased Ramakrishnappa, the appellants are in appeal before this Court, seeking enhancement of compensation and also to set aside the contributory negligence fixed on the part of the deceased Ramakrishnappa.

We have gone through the grounds urged in the memorandum of appeal and heard the learned counsel appearing for appellants and also the Insurer, for quite some time.

Shri. K.R. Murali Krishna, learned counsel appearing for claimants/appellants vehemently submitted that, the Tribunal grossly erred in taking the income of the deceased at only Rs. 3,000/- per month. He submits that the claimants have stated that the deceased was aged about 35 years and earning a sum of Rs. 10,000/- per month by working at a Bar and Restaurant. But, disbelieving the same, the Tribunal, without any basis has assessed the income of the deceased at only Rs. 3,000/- per month. The same is liable to be re-assessed.

Further, he submitted that the claimants are none other than the wife and three children and are all dependent on his income as he was the sole bread winner of the family and that to maintain the big family, the deceased was working as a cashier at Somanatha Bar and Restaurant, earning Rs. 10,500/- per month and in support of the same the claimants have also produced salary certificate. But, the Tribunal has disbelieved the same on the sole ground that the proprietor of the said Bar and Restaurant has not been examined. But, mere non-examination of the author of a document cannot disentitle the legitimate entitlement of compensation by the claimants. This aspect has been completely lost sight of by the Tribunal while awarding compensation for the death of the deceased Ramakrishnappa in the road traffic accident.

Further, he vehemently submitted that the Tribunal grossly erred in coming to the conclusion that the deceased Ramakrishnappa contributed to an extent of 25% for the occurrence of accident. The reasoning given and the finding of fact by the Tribunal for imposing 25% contributory negligence on the deceased is contrary to the material on record and therefore, the same is liable to be set aside and the entire negligence is liable to be fixed on the Insurer of the offending vehicle.

Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to be modified by enhancing reasonable compensation and also setting aside the contributory negligence fixed at 25% on the part of the deceased.

As against this Shri. A.N. Krishna Swamy, learned counsel appearing for Insurer vehemently submitted that the compensation awarded by Tribunal is after due appreciation of the oral and documentary evidence available on file and in the absence of any credible oral and documentary evidence available on file, the Tribunal is justified in assessing the monthly income at Rs. 3,000/- and awarding just and reasonable compensation towards loss of dependency and also conventional heads.

Regarding contributory negligence fixed at 25% on the part of the deceased, he vehemently submitted that the reasoning given by Tribunal at paragraphs 13 and 15 of its judgment is just and proper and it does not call for interference.

After hearing learned counsel for the parties, and after careful perusal of the judgment and award passed by the Tribunal, the only point that arise for our consideration in this appeal is,

Whether the quantum of compensation awarded by Tribunal is just and reasonable?

The undisputed facts of the case are the occurrence of accident and the resultant death of the deceased. It is stated that the deceased was aged about 35 years. But, on the basis of the documentary evidence produced by the appellants, the Tribunal has held that the deceased was aged about 43 years. After re-appreciation of the oral and documentary evidence available on file, we come to the conclusion that the deceased must have been aged between 36 and 40 years. It is stated that he was earning Rs. 10,000/- per month. But, to substantiate the same, the appellants have not produced any credible documentary evidence. But, it can be seen that the Tribunal is also not justified in assessing the income of the deceased at only Rs. 3,000/- per month. The same is on the lower side and needs to be re-assessed. The accident is of the year 2008 and the deceased was young and energetic, aged between 36 and 40 years and working at a Bar and Restaurant. Therefore, having regard to the age, avocation and also the year of accident, we re-assess the income of the deceased at Rs. 4,000/- per month. Further, as the claimants are four in number, we deduct 1/4th towards the personal expenses of the deceased. Accordingly, If 1/4th (i.e. Rs. 1,000/-) is deducted from Rs. 4,000/- towards his personal expenses, the net income would be Rs. 3,000/- per month. Further, we have re-assessed the age of the deceased as between 36 and 40 years as on the date of accident. Therefore, for the said age, the proper multiplier applicable is ''15'' as per the decision of the Hon''ble Apex Court Sarla Verma''s case (2009 ACJ 1298). Thus, the compensation towards loss of dependency would work out to Rs. 5,40,000/- (i.e. Rs. 3,000/- x 12 x''15'') as against Rs. 3,78,000/- awarded by Tribunal.

Further, the Tribunal is not justified. In awarding only Rs. 45,000/- towards conventional heads, viz. loss of consortium, loss of love and affection, loss of estate and transportation of dead body and funeral expenses. The claimants are wife and three children and out of them two are minor children and the wife has to bring them up single handedly. Therefore, in the light of the decision of the Apex Court in Sarla Verma''s case (supra), we award Rs. 60,000/- towards conventional heads as against Rs. 45,000/- awarded by Tribunal. Thus, the total compensation payable to claimants works out to Rs. 6,00,000/- as against Rs. 4,23,000/- awarded by the Tribunal.

Regarding contributory negligence fixed at 25% on the part of the deceased, it can be seen that, as rightly pointed out by the learned counsel appearing for the Insurer, the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has recorded a specific finding of fact at paragraphs 13 and 15 of its judgment, holding that the deceased contributed at 25% to the occurrence of accident The reasoning given by the Tribunal for arriving at the said finding of fact is just and proper and does not call for interference. Therefore, we affirm the contributory negligence fixed on the part of the deceased at 25%. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed in part.

The impugned judgment and award dated 23rd January 2010, passed in MVC No. 484/2009, by the IX Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal-7, Bangalore (SCCH-7), is hereby modified, awarding a sum of Rs. 6,00,000/- as against Rs. 4,23,000/- awarded by the Tribunal, with interest at 6% per annum on the enhanced sum, from the date of petition till the date of realization.

The contributory negligence fixed by Tribunal at 25% on the part of the deceased is held to be just and proper. Therefore, the appellants are held entitled for compensation of a sum of Rs. 4,50,000/-, after deducting 25% (i.e. Rs. 1,50,000/-) towards; contributory negligence on the part of the deceased on Rs. 6,00,000/- as against Rs. 3,17,250/- awarded by Tribunal, with interest at 6% per annum, from the date of petition till the date of realization.

Thus, there would be enhancement of compensation by a sum of Rs. 1,32,750/- with 6% interest per annum from the date of petition till the date of realization.

The Insurance Company is directed to deposit the enhanced compensation of Rs. 1,32,750/-, with interest thereon at 6% per annum, within three weeks from the date of receipt of copy of the judgment.

Immediately on such deposit by the Insurance Company, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in the name of appellant No. 1 - wife of deceased, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of ten years, renewable by another ten years, with liberty reserved to her to withdraw the periodical interest.

Remaining sum of Rs. 32,750/- with proportionate interest shall be released in favour of appellant No. 1, immediately.

Office to draw award accordingly.

In view of disposal of appeal awarding higher compensation, Misc. Cvl. 15255/2010 does not survive for consideration and is accordingly disposed of as having become infructuous.