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Judgment
K.N. Keshavanarayana, J.—Though the appeal is listed today for orders, by consent of the learned counsel appearing on both sides, the matter is heard for final disposal. This appeal by the insurer is directed against the judgment and award dated 21.11.2009 passed by the MACT XII, Bijapur, in MVC No. 916/2008.
Respondent Nos. 1 to 3, as wife and children of one Kalyanappa @ Kalyani Yadagouda, filed claim petition u/s 166 of the Motor Vehicles Act seeking compensation of Rs. 11,70,000/- for the death of the said Kalyanappa @ Kalyani Yadagouda in the motor vehicle accident that occurred on 16.03.2008.
According to the claimants, on the fateful day the deceased was proceeding on his bicycle towards Hangarga Village on extreme left side of Solapur-Hyderabad: NH-9. At that time, the truck bearing Registration No. AP-04/V-7184 came from the back side at a high speed driven by its driver in a rash and negligent manner and dashed against the deceased, as a result, he fell down sustaining grievous injuries. Immediately, he was shifted to the hospital for treatment, where he succumbed on 30.04.2008.
The claimants contended that the accident was solely due to the negligence of the driver of the truck, therefore, the owner and insurer of the truck are liable to compensate them. They further contended that the deceased was an agriculturist and was getting yearly income of Rs. 2,50,000/- from the irrigated land and he was the only bread-earner of the family. They also contended that for the period of nearly 45 days, while the deceased was inpatient in the hospital, they have spent huge amount to an extent of Rs. 3,50,000/- towards medical expenses.
The owner of the vehicle remained absent while the insurer of the vehicle contested the petition. The insurer though admitted the facts of issuance of policy and its validity as on the date of the accident, nevertheless, contended that its liability is subject to terms and conditions of the policy. The insurer denied the allegations as to the manner in which the accident said to have occurred. It further contended that the accident occurred in Maharashtra State, therefore, the claim petition filed before the MACT at Bijapur is not maintainable. It denied the averments regarding the vocation pursued by the deceased and also the annual income as stated in the petition. Therefore, it sought for dismissal of the petition.
In the light of the pleadings of the parties, the Tribunal framed the following issues:-
i) Whether the petitioners prove that, on 16.03.2008 at about 1.00 am, towards Hangarga village, NH-9: Solapur-Hyderabad Road, one truck bearing No. AP-04/V-7184 came from back side with great speed and in rash and negligent manner, dashed and caused accident, in which the deceased sustained grievous injuries to his head and died in hospital?
ii) Whether the petitioners are entitled for compensation? If so, what is the quantum and from whom?
iii) What order and award?
In support of the contentions of the claimants, the 2nd claimant-Basavaraj Kalyanappa Yadagouda, son of the deceased was examined as P.W. 1 and they also examined another witness-Bhimashankar Pandurang Yadagouda as P.W. 2. They relied on documentary evidence marked as Exs. P1 to P17.
Per contra, the insurer did not lead any oral evidence and a copy of the Insurance Policy came to be marked as Ex. R1.
The Tribunal on appreciation of oral and documentary evidence, by the judgment under appeal answered the issue regarding actionable negligence in the affirmative, holding that the accident was solely due to the negligence of the driver of the truck and therefore, the claimants are entitled to receive compensation from the owner of the vehicle. The Tribunal further held that, since the insurer has issued policy and the policy was in force as on the date of the accident, the insurer is liable to indemnify the insured. The Tribunal for the purpose of computing the Loss of Dependency, reckoned the annual income of the deceased at Rs. 60,000/- and after deducting 1/3rd of the annual income towards the living and personal expenses of the deceased and by applying the multiplier of ''10'', quantified the loss of dependency at Rs. 4,00,000/-. In addition to this, the Tribunal awarded a sum of Rs. 20,000/- towards loss of expectancy of life, Rs. 20,000/- towards loss of love and affection, Rs. 5,000/- towards funeral expenses and Rs. 3,15,615/- towards the medical expenses and attendant charges. Thus, in all the Tribunal awarded a sum of Rs. 7,60,000/- with interest at 6% p.a. from the date of petition till the date of payment. Aggrieved by the said judgment and award, the insurer is in appeal before this court.
As could be seen from the grounds urged in the appeal memo, the appellant-Insurer has attacked the judgment and award on the following grounds:-
i) The Tribunal has wrongly assessed the annual income of the deceased at Rs. 60,000/- from the agriculture, though there was absolutely no documentary proof to substantiate the same;
ii) The Tribunal, in the absence of any proof as to the income, ought to have taken Rs. 3,000/- as monthly income of the deceased and from that 1/3rd ought to have been deducted towards the living and personal expenses;
iii) The appropriate multiplier applicable is ''7'' and not ''10'', as adopted by the Tribunal.
I have heard the learned counsels appearing on both sides.
The claimants in their claim petition have specifically contended that the deceased was an agriculturist and was getting income not less than Rs. 2,50,000/- from the agricultural operations. Ex. R5 is R/R of Sy. No. 750, which shows that the deceased owned certain land. Ex. P6 is the Bill issued by Tulaja Bhavani Agricultural Co-Operative Factory to show that the deceased had supplied sugarcane valued at Rs. 1,00,000/-. On the basis of this documentary evidence supported by the oral evidence of PW Nos. 1 & 2, the Tribunal has assessed the annual income of the deceased at Rs. 60,000/-. The finding recorded by the Tribunal in this regard, in my considered opinion is in consonance with the oral and documentary evidence. The insurer has not rebutted this evidence nor it has brought-out any circumstances to disbelieve the evidence placed by the claimants in this regard. Merely because the deceased is shown to be aged about 60 years, it cannot be said that he was not in a position to work in the agricultural field and earn. No doubt the land is still available to the family. Nevertheless, the family members have lost the valuable services rendered by the deceased. In a case of this nature, as held in catena of decisions, the services rendered by the deceased to the family should be valued in terms of money for the purpose of computing compensation. The annual income of Rs. 60,000/- determined by the Tribunal works-out to Rs. 5,000/- p.m.
Having regard to the facts and circumstances of the case, in my considered opinion, the annual income determined by the Tribunal cannot be termed as excessive or as exorbitant warranting interference by this court. Even according to the grounds urged in the claim petition, deduction towards living and personal expenses should be 1/3rd. The Tribunal has rightly deducted 1/3rd of the annual income of the deceased towards his living and personal expenses. The Tribunal has adopted the multiplier of ''10''. There is no dispute that the deceased was aged about 60 years. As per the schedule evolved in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the appropriate multiplier applicable for the persons between the age group of ''56-60'' is ''9''. Therefore, the Tribunal has committed error in adopting the multiplier of ''10''. The appropriate multiplier would be ''9''. On this basis, the total ''Loss of Dependency'' works-out to Rs. 3,60,000/- as against Rs. 4,00,000/- and to this extent the compensation awarded by the Tribunal is required to be reduced. The compensation awarded under other conventional heads is just and proper, therefore, it does not call for interference. There is no challenge as to the award of Rs. 3,15,650/- towards the medical expenses and attendant charges. In this view of the matter, the appeal filed by the insurer is allowed-in-part reducing the compensation payable to Rs. 7,20,000/-, as against Rs. 7,60,000/-. In all other respects the award under appeal is left undisturbed.
The appellant-Insurer to deposit the balance of the compensation amount, if already not deposited, within six weeks from today.
The statutory deposit made before this court is ordered to be transmitted to the Tribunal concerned.