Sushibai and Others vs Muthullakhan and Others

N.K. Patil, J—This appeal by the appellants-claimants is directed against the impugned common judgment and award dated 06/11/2012, passed in MVC No. 3959/2011, by the VIII Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal-V, Bangalore City, (hereinafter referred to as '' Tribunal'' for short), for enhancement of compensation.

The Tribunal by its judgment and award has awarded a sum of Rs. 2,79,300/- under different heads, after deducting contributory negligence at 30% on the part of the deceased, with interest at 6% per annum from the date of petition till the date of deposit, as against the claim of the appellants for a sum of Rs. 22,00,000/-, on account of the death the deceased Sri. Kumar Naik, in the road traffic accident.

In brief, the facts of the case are:

"The appellant No. 1 is the wife and appellant Nos. 2 and 3 are minor children of the deceased. They filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the owners and insurer of goods tempo, on account of the death of the deceased in the road traffic accident, contending that, on 10.5.2011 at about 8.30 p.m. deceased was proceeding in a motor bike bearing Reg.N.KA.04.ER.9910 on Kanakapura-Bangalore road when he came near Thungani gate, at that time, the driver of the goods tempo bearing Reg. No. KA.05.B.1700 came from opposite side in a rash and negligent manner and dashed against the motor bike. Due to which, deceased who was the rider of the motor bike died on the spot."

It is the further case of the appellants that, deceased was aged about 29 years, hale and healthy prior to the accident, working as Painter and earning Rs. 250/- per day and looking after the welfare of the family Due to his untimely death, appellants have lost their 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. 2,79,300/- under different heads, after deducting 30% towards contributory negligence on the part of the deceased, with interest at 6% p.a., from the date of petition till the date of deposit.

Being aggrieved by the said judgment and award passed by the Tribunal, the appellants have presented this appeal.

We have heard the learned counsel appearing for the appellants and learned counsel appearing for respondent No. 3.

The submission of the learned counsel appearing for the appellants is that, the income of the deceased assessed by the Tribunal at Rs. 3,500/- per month is on the lower side and is liable to be re-assessed atleast at Rs. 6,000/- to Rs. 6,500/- per month, on the ground that, deceased was aged about 29 years, Painter by profession and the appellants are the wife and minor children and he was the only earning member in the family. Further, she submits that the appropriate multiplier applicable is ''17'' instead of ''13'' adopted by the Tribunal, as deceased was aged about 29 years as on the date of the accident. Further, she submits that the compensation awarded by the Tribunal towards conventional heads and the rate of interest is on the lower side and it may be enhanced reasonably. Further, she submits that the Tribunal has erred in fixing 30% contributory negligence on the part of the deceased and the same is liable to be modified. Therefore, she submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by awarding reasonable compensation towards loss of dependency, conventional heads and by reducing the contributory negligence fixed at 30% on the deceased.

As against this, learned counsel appearing for the Insurer, inter-alia, contended and sought to substantiate that, the impugned judgment and award passed by the Tribunal is just and reasonable and after due consideration of the oral and documentary evidence available on file and after recording a finding of fact for fixing 30% negligence on the part of the deceased and therefore, interference by this Court is not called for.

After hearing the learned counsel appearing for the parties and 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 appellants that, deceased was aged about 29 years, hale and healthy prior to the accident, Painter by profession and earning more than Rs. 250/- per day. But to prove the same, they have not produced any credible documents. Further, it emerges that, the income of the deceased assessed by the Tribunal at Rs. 3,500/- per month is on the lower side and it needs to be re-assessed reasonably. Having regard to the age, occupation of the deceased and the year of accident, we re-assess his income at Rs. 6,500/- per month instead of Rs. 3,500/- per month as assessed by the Tribunal to meet the ends of justice. Out of which, if 1/3rd ( Rs. 2,166/-) is deducted towards the personal expenses of the deceased, since there are three dependants, his net income comes to Rs. 4,334/- per month. The proper multiplier applicable is ''17'' since deceased was 29 years instead of ''13'' adopted by the Tribunal. Therefore, we re-determine the loss of dependency at Rs. 8,84,136/-( Rs. 4,334/- x 12 x 17) instead of Rs. 3,64,000/-awarded by the Tribunal and accordingly, it is awarded.

Having regard to the facts and circumstances of the case and following the judgment of the Apex Court and this Court, we award a sum of Rs. 1,00,000/- towards loss of consortium, Rs. 75,000/- towards loss of love and affection at the rate of Rs. 25,000/- to the each of the appellant Nos. 1 to 3, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses. In all, the appellants are entitled to a total compensation of Rs. 11,09,136/-.

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 30% 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, after assigning valid reasons has fixed the negligence at 30% on the part of the deceased. The said reasoning given by the Tribunal for fixing 30% negligence 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.

Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the appellants, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2011. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the enhanced compensation instead of 6% awarded by the Tribunal.

Out of the compensation of Rs. 11,09,136/-, if 30% ( Rs. 3,32,740/-) is deducted towards contributory negligence on the part of the deceased, the remaining compensation comes to Rs. 7,76,396/-. There would be an enhancement of Rs. 4,97,096/- with interest at 9% 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 common judgment and award dated 06/11/2012, passed in MVC No. 3959/2011, by the VIII Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal-V, Bangalore City, is hereby modified, awarding the compensation of Rs. 4,97,096/- with interest at 9% 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. 4,97,096/- with interest at 9% 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, out of the enhanced compensation of Rs. 4,97,096/-, a sum of Rs. 2,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled or Grameena Bank, in the name of the appellant No. 1, for a period of 15 years and renewable by another 10 years, with liberty reserved to her to withdraw the interest accrued on it, periodically.

A sum of Rs. 1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled or Grameena Bank, in the names of each of the appellant Nos. 2 and 3 till they attain 30 years, with liberty reserved to the appellant No. 1 to withdraw the interest accrued on it, periodically, for the welfare of appellant Nos. 2 and 3 till they attain 21 years and from 22 years to 30 years, they are at liberty to withdraw the interest periodically.

The remaining sum of Rs. 97,096/- with proportionate interest shall be released in favour of the appellant No. 1 immediately.

Office to draw the award, accordingly.