Somabai and Others vs B.M. Ashwathkumar and Others

Rathnakala, J.—The judgment and award dated 19th June 2014 in M.V.C. No. 4477/2012 passed by the Principal Motor Accident Claims Tribunal at Bangalore, is under challenge in both these appeals.

M.F.A. No. 5712/2014 is filed by the claimants whereas M.F.A. No. 6205/2014 is by the Insurance Company. While the claimants/appellants of M.F.A. No. 5712/2014 are dissatisfied by the quantum of compensation, the Insurance Company is aggrieved by the excessiveness of the compensation awarded by the Tribunal, and also challenging its liability to answer the award.

Facts leading to these appeals are:

"Consequent upon the death of Sri. Thulasiram @ Tulsaram in the road traffic accident on 20.2.2012, his dependent family filed a petition under Section 166 of the Motor Vehicles Act, before the Tribunal seeking compensation of Rs. 38,50,000/-. Their case was, on 20.2.2012, the deceased was proceeding on his Splendor Motor cycle bearing registration No. KA-54/E-8656 slowly and cautiously on the left side of Jakkanahalli - Mandya road towards Mandya. At about 11.30 a.m., a bus bearing registration No. MEY-4546 driven by its driver in a rash and negligent manner, came from Mandya side in the extreme wrong side of the road and dashed against the Motor cycle, as a result; the deceased suffered fatal injuries and on the way to the hospital, he expired. He was hale and healthy and aged 36 years at the time of the accident and was running a business under the name and style "M/s. Mahaveer Bankers" at Chinya. He was a income tax payee. He had submitted his income tax returns during 2011-12 by assessing and computing his gross income at Rs. 2,38,546/- from his profession and also from his agricultural properties. He was the sole earning member of the family. The claimants are his widow, minor children and aged parents. Due to the mental shock and agony on the death of the son, the father of the deceased expired during the pendency of the proceedings."

The claim was contested by the insurer of the offending vehicle. After recording the evidence and giving audience to both parties, the Tribunal has awarded a compensation of Rs. 33,42,940/- with interest @ 6% per annum.

Sri. V.N. Madhava Reddy, learned Counsel appearing for the appellants/claimants in M.F.A. No. 5712/2014 submits that while computing the loss of dependency, the Tribunal deducted Rs. 49,926/- from his declared income for the year 2011-12 i.e., Rs. 2,38,546/-. This deduction is without any foundation. The monthly income of the deceased was roughly Rs. 20,000/- and considering his age, if 50% is added towards his future income, his monthly income would have been Rs. 30,000/- per month; if 1/4th of the said amount is deducted towards his personal expenses, by multiplying with the multiplier of ''15'' appropriate to his age, the loss of dependency to the family would be Rs. 37,75,000/-. The amount awarded under the conventional heads is also meager. No amount is awarded towards loss of estate. Considering this aspect, the compensation amount may be modified by enhancing it by just and reasonable amount.

Sri. K. Suryanarayana Rao, learned Counsel appearing for the appellant/insurer of the offending vehicle in M.F.A. No. 6205/2014, submits that the appreciation of evidence by the Tribunal was erroneous. The driver of the insured vehicle is held responsible only for the reason that he has been charge sheeted by the jurisdictional Police. In fact, during the rebuttal evidence, the appellant/insurer had produced evidence establishing that the deceased on his motor cycle came on the wrong side of the road and dashed against the bus though the bus was on its proper side. The sketch of scene of occurrence and the nature of the damages caused to both the vehicles support the said fact. That apart, the Tribunal has awarded excessive and exorbitant compensation by losing sight of the fact that the business of pawn brokerage and money lending carried on by the deceased has continued for the benefit of his family. The widow of the deceased filed income tax returns after the death of her husband in respect of his business. The Tribunal ought not to have added 15% of his declared income towards the future prospects; the earnings of the deceased by his business is not a stable income. Hence, the judgment and award of the Tribunal is liable to be set aside, alternatively may be re-assessed by excluding the 50% future income that is considered while computing loss of dependency to the family of the deceased.

In the light of the submission made for both parties and on perusal of the impugned judgment and the lower court records, the following points arise for our consideration:

"1. Whether the Tribunal was justified in holding the driver of the offending vehicle as, solely responsible for the accident?

If in the negative, what is the reasonable compensation amount in the present facts and circumstances of the case?"

The appellants/claimants are the widow, minor children and mother of the deceased Tulasiram @ Tulsaram, who died in the road traffic accident involving the motor cycle he was riding and the bus bearing registration No. MEY 4546 insured by the appellant of M.F.A. No. 6205/2014. During the enquiry, the first appellant/wife examined as PW-1, was not an eye witness to the incident, however, she produced the documents collected by the Investigating Officer of the criminal case i.e., driver of the Bus was prosecuted for the offence punishable under Sections 279, 304(A) of IPC read with Section 187 of IMV Act.

During the rebuttal evidence, the respondent/insurer''s case was, the sketch produced by the claimants is concocted and they produced another sketch disclosing that the accident occurred while the motor cyclist came on the right side of the road and hit the opposite vehicle; very same sketch was produced by the Investigating Officer in the criminal case also. When the sketch is read with the mahazar, it discloses that the road was of 18 feet with footpath on either side and the accident occurred at 7 1/2 feet from the South side and the bus was on the left side of the road.

The driver of the offending vehicle was a witness for the respondent. Though he stated that during the accident, the Motor cyclist came towards the right side of the road and dashed against the bus, however, during the cross-examination admitted that he had seen the rider of the Motor cycle from the distance of 20 feet and there was a curve at the place of the accident; the right side bumper and head lamp of the Bus were damaged in the accident.

The observation of the Tribunal was, though the accident is admitted, no complaint was lodged by the driver of the Bus against the deceased, and no attempt was made by him to complain to his higher authorities, if the Police had refused to receive the complaint. Since the rear portion of the bus was damaged, the contention that the motor cyclist came from the wrong side and hit the bus is unacceptable and the motor cycle is completely damaged. The sketch produced by the claimants is issued by the Inspector of Pandavapura Police Station. On the other hand, the sketch produced by the respondent shows the accident on the right side of the road. Though both sketches were contrary to each other, the claimants'' case overweighed for the Tribunal on above observation, to record its finding that the accident has occurred due to rash and negligence of the driver of the bus.

On a reading of the evidence with the impugned Judgment and award, we are of the considered view that it is not a case to substitute any other finding than what is returned by the Tribunal. Though the contents of the mahazar do not fully corroborate the case of the claimants, the admission elicited from the mouth of the driver of the Bus overweighs and we are not inclined to disturb the finding of Tribunal that the driver of the bus is solely responsible for the accident.

Having held as above, when we compute independently just and reasonable the compensation for which the claimants are entitled, the deceased was aged 39 years and was engaged in the business of pawn brokerage and money lending. The date of accident is 20.2.2012. As per the income tax returns for the relevant period, his income was Rs. 2,38,546/- per annum. Of course, the returns for the Accounting year 2011-2012 is filed under his Permanent Account Number subsequent to his death on 14.07.2011. Looking to the declaration of the gross annual income for the previous two years by the deceased himself i.e., Rs. 2,13,404/- for Assessment year 2010-2011, Rs. 1,90,608/- for Assessment years 2009-2010, we opine that income declared for the Assessment year 2012-2013 is not an exaggeration. By deducting the income tax of Rs. 2,948/- his income was Rs. 2,35,598/- per annum for the relevant period. By deducting 1/4th of the said amount towards his personal expenses, his yearly contribution to the family comes to Rs. 1,76,699/- per annum. Towards the loss of dependency, the said amount multiplied with ''15'' (the multiplier appropriate to the age of the deceased in accordance with the dictum of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 , it works out to Rs. 26,50,485/- that is the loss of dependency to the family, on the death of late Tulsaram.

Towards loss of consortium, we award Rs. 1,00,000/- to first appellant, who has lost her husband in her young age; Rs. 1,00,000/- towards loss of love and affection to the bereaved members of the family; Rs. 25,000/- towards loss of estate and another Rs. 25,000/- towards transportation and funeral expenses. Thereby the total compensation comes to Rs. 29,00,485/-. That is the just and appropriate compensation for which the claimants are entitled for as against Rs. 33,42,940/- awarded by the Tribunal. There is merit in the contention of the Insurance Company that the compensation awarded is on the higher side and requires to be modified.

Accordingly, M.F.A. No. 5712/2014 filed by the claimants is dismissed. No costs.

The appeal filed by the Insurance Company in M.F.A. No. 6205/2014 is allowed in part. No costs.

The judgment and award dated 19th June 2014 in M.V.C. No. 4477/2012 passed by the Principal Motor Accident Claims Tribunal at Bangalore, is modified by reducing compensation amount awarded by the Tribunal by Rs. 4,42,455/-. The claimants are entitled for compensation of Rs. 29,00,485/- with interest @ 6% per annum from the date of petition till realization as against Rs. 33,42,940/- awarded by the Principal Motor Accident Claims Tribunal, Bangalore.

The appellant/Insurance Company is directed to deposit the entire compensation of Rs. 29,00,485/- with accrued interest @ 6% per annum less the amount which they have already deposited in the Registry and also before the jurisdictional Tribunal, within three weeks from the date of receipt of certified copy of this order.

The compensation shall be deposited and apportioned in accordance with the ratio as already ordered by the Tribunal in the impugned judgment and award.

The Registry to transmit the records forthwith to the jurisdictional Tribunal.

The amount deposited by the Insurer in M.F.A. No. 6205/2014 shall be transmitted to the jurisdictional Tribunal, forthwith.