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Judgment
N.K. Patil, J.—Though this matter is posted today for orders, with the consent of learned counsel for both the parties, the same is taken for final disposal. This appeal by the appellants-claimants is directed against the impugned judgment and award dated 03/12/2010 passed in MVC No. 9958/2008, 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.
The Tribunal by its judgment and award has awarded a sum of Rs. 89,250/- under different heads, after deducting contributory negligence at 15% on the part of the deceased, with interest at 6% per annum from the date of petition till realization, as against the claim of the appellants for a sum of Rs. 20,00,000/-, on account of the death the deceased Sri. A.K. Nityanand, in the road traffic accident.
In brief, the facts of the case are:
The appellant is the mother of the deceased Sri. A.K. Nityanand. She filed a claim petition before the Tribunal u/s 166 of M.V. Act, claiming compensation on account of the death of the deceased in the road traffic accident, contending that, on 18.12.2008 at about 7.15 p.m. the driver of the KSRTC bus bearing Reg. No. KA.07.F.2199 drove the same Swamy Vivekananda road from east to west with high speed, in a rash and negligent manner and near R.K. Mutt junction of roads, dashed the said bus against the deceased who was standing on the northern side of the said road to cross the road. Due to which, he sustained severe head injuries. Immediately, he was shifted, to Chinmaya Mission Hospital and later on to NIMHANS Bangalore, but he succumbed to the injuries at 0.20 hours in the mid night on 19.12.2008.
It is the further case of the appellant that, deceased was aged about 68 years, hale and healthy prior to the accident, he was working as a Supervisor at Sagar Group of Company and earning Rs. 8,000/- per month and looking after her. Due to his untimely death, appellant has lost her bread earner and suffered both financial and social insecurity, 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. 89,250/- under different heads, after deducting 15% towards contributory negligence on the part of the deceased, with interest at 6% p.a., from the date of petition till realization.
Being dis-satisfied with the compensation awarded by the Tribunal, the appellant has presented this appeal, for enhancement of compensation.
We have heard the learned counsel appearing for the appellant and learned counsel for second respondent-Insurance Company.
The submission of the learned counsel appearing for the appellant is that, the income of the deceased assessed by the Tribunal at Rs. 3,000/- per month treating him as a coolie, though he was working as Supervisor in Sagar Group of Company and earning Rs. 8,000/- per month is on lower side and the appellant is the mother and depending on deceased and therefore, the income of the deceased may be re-assessed reasonably. Further, he submits that the Tribunal has erred in fixing 15% 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 15% on the deceased.
As against this, learned counsel 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 appearing for both the parties, after careful perusal of the material available on record at threadbare, 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 and the resultant death of the deceased is not in dispute. It is the case of the appellant that, deceased was aged about 68 years, hale and healthy prior to the accident, working as Supervisor in Sagar Group of Company and earning Rs. 8,000/- per month. But to prove the same, she has not produced any credible documents or examined the employer. The Tribunal is justified in treating him as a coolie, but erred in assessing his income at Rs. 3,000/- per month. Having regard to the age, occupation and the year of accident, we re-assess his income at Rs. 4,500/- per month instead of Rs. 3,000/- per month as assessed by the Tribunal. Out of which, if 50% ( Rs. 2,250/-) is deducted towards the personal expenses of the deceased, since the mother is the only dependent, his net income comes to Rs. 2,250/- per month. Accepting the Multiplier ''5'' adopted by the Tribunal taking the age of the deceased as 68 years as just and proper, we re-determine the loss of dependency at Rs. 1,35,000/- ( Rs. 2,250/- x 12 x 5) instead of Rs. 90,000/- 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. 15,000/- awarded by the Tribunal. In all, the appellant is entitled to a total compensation of Rs. 1,80,000/- instead of Rs. 1,05,000/- awarded by the Tribunal.
So far as the submission made by the learned counsel appearing for the appellant that, the Tribunal has erred in fixing the contributory negligence at 15% 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 15% 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 appellant is liable to be rejected and accordingly, it is rejected.
Out of the total compensation of Rs. 1,80,000/-, if 15% ( Rs. 27,000/-) is deducted towards contributory negligence on the part of the deceased, the remaining compensation comes to Rs. 1,53,000/-. There would be an enhancement of Rs. 63,750/- with interest at 6% p.a., from the date of petition till its realization. For the foregoing reasons, the appeal filed by the appellants is allowed in part and the impugned judgment and award dated 03/12/2010 passed in MVC No. 9958/2008, by the XII Additional Small Causes Judge and Member, Motor Accident Claims Tribunal, Bangalore, is hereby modified, awarding the compensation of Rs. 63,750/- with interest at 6% p.a., from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.
The Insurer is directed to deposit the enhanced compensation of Rs. 63,750/- with interest at 6% p.a., from the date of petition till the date of realization, within a period of three weeks from the date of receipt of a copy of this judgment.
Immediately on deposit by the Insurer, the entire enhanced compensation with interest shall be released in favour of the appellant.
Office to draw the award, accordingly.