The Divisional Manager, The National Insurance Co. Ltd. vs Srikant and Others

P.D. Waingankar, J.

These appeals by the National Insurance Company Limited is against the common judgment and award dated 02.04.2008 in MVC No. 146/2006 and 147/2006 on the file of the Civil Judge (Sr. Dn.) and MACT, Hangal to the extent of liability fastened on the Insurance Company to indemnify the owner and to pay the compensation amount. Since both these appeals are arising out of the common judgment, they are heard and disposed of by this common judgment.

The brief facts which gave rise to these appeals are stated as under:

On 22.05.2005 at about 10.15 pm, one Onkaramma and her husband Shekappa had gone to Narasapur village to attend the marriage. While they were returning after attending the marriage, they were waiting near Belaki village lake cross for some vehicles to go to their native place. At that time, a tractor-trailer bearing No. KA-27/6456 and 6457 came from Shivapur village in a rash and negligent manner and capsized on the road. As a result, both Onkaramma and Shekappa, who were waiting for vehicle caught inside the tractor - trailer and died on the spot. Their children filed the claim petition under Section 166 of the M.V. Act claiming compensation on account of the death of their mother and father in MVC No. 146/2006 and 147/2006 respectively. Both the claim petitions were opposed by the owner and the insurer of the tractor-trailer. They came up for consideration before the Tribunal.

The Tribunal upon consideration of the evidence placed on record, recorded a finding that the accident and the resultant death of Onkaramma and Shekappa is due to the rash and negligent driving of the tractor and trailer by its driver and thus by the impugned judgment and award, awarded a compensation of Rs. 3,94,000/- and Rs. 4,52,999/- respectively. The Tribunal directed the Insurance Company to indemnify the owner of the tractor and trailer by depositing the award amount. Aggrieved by both the quantum of compensation awarded by the Tribunal and the liability fastened on the Insurance Company, these appeals are preferred.

I have heard the learned counsel appearing for the appellant Insurance Company and the respondent - owner of the tractor-trailer.

The learned counsel for the Insurance Company would submit that the claim petitions were filed by the children claiming compensation on account of death of their father and the mother. In such an event, Tribunal is not right in awarding loss of dependency in both the claim petitions.

The Counsel for the respondent-owner of the tractor-trailer has argued in support of the judgment and award passed by the Court below.

Upon hearing both the learned counsel and upon perusal of the material on record, the following points would arise for my consideration:

i. Whether the compensation awarded by the Tribunal in both the claim petitions is just and reasonable?

ii. Whether the Tribunal is justified in directing the Insurance Company to indemnify the owner and to pay the compensation amount?

As I have already stated, in MVC No. 146/2006, the claim petition arising out of the death of mother of the claimants - Onkaramma, the Tribunal has awarded an amount of Rs. 3,94,000/- and in MVC No. 147/2006, the claim petition arising out of the death of father of the claimants - Shekappa, the Tribunal has awarded Rs. 4,52,999/-. The closer scrutiny of the judgment and award would reveal that the Tribunal has considered loss of dependency in both the claim petitions arising out of the death of both the mother and father of the claimants, which appears to be not correct. The Tribunal ought to have considered the loss of dependency either on account of death of mother or on account of death of father. In that view of the matter, it has to be held that the Tribunal is right in taking the loss of dependency of father while determining the compensation on account of death of father of the claimants.

Having considered loss of dependency in a claim petition arising out of death of father, the Tribunal is not right in again calculating the loss of dependency in a claim arising out of the death of mother. The Tribunal has taken the income of the mother as Rs. 3,000/- per month. The Tribunal has deducted 1/3rd of the income towards the living and personal expenses of the deceased had she been alive. In other words, the Tribunal has taken the loss of dependency at 2/3rd of the total income of the deceased. But the Tribunal has taken the multiplier as 16. Having regard to the fact that, the deceased was aged 30 years at the time of the accident, the appropriate multiplier to be pressed into service is 17. Since the loss of dependency taken by the Tribunal is not correct, having regard to the law laid down in the decision recorded in 2005 ACJ 992 in the case of A. Manavalagan Vs. A. Krishnamurthy and Ors., it is appropriate on my part to take the loss of dependency at 25% of her income as savings. If 25% of the income is taken as savings, the total loss of estate comes to Rs. 1,53,000/- as against Rs. 3,84,000/- determined by the Tribunal. If an amount of Rs. 5,000/- towards funeral expenses Rs. 5,000/- towards transportation of dead body is added to loss of estate, the total amount of compensation comes amount to Rs. 1,63,000/-. Thus, the claimants in MVC No. 146/2006 are held to be entitled for a total compensation of Rs. 1,63,000/- and in MVC No. 147/2006 they are held to be entitled for a total compensation of Rs. 4,52,999/-.

Coming to the liability to pay the compensation, it is borne out from the records produced by the claimants themselves, particularly the complaint and charge sheet, it is evident that both the deceased persons were travelling in the tractor and trailer along with others after attending a marriage and at that time, because of rash and negligent driving, the tractor and trailer toppled and they died. There is a breach of the terms of the policy conditions by the owner of the tractor and trailer. In that event, the Tribunal ought to have dismissed the claim petitions as against the Insurance Company while directing the owner of the tractor and trailer to pay the compensation awarded in both the claim petitions. To that extent, the award requires to be interfered by this Court.

Accordingly, I pass the following order:

ORDER

i. Both the appeals are partly allowed.

ii. The common judgment and award dated 02.04.2008 passed in MVC Nos. 146/2006 and 147/2006 stands modified, awarding the compensation of Rs. 1,63,000/- in MVC No. 146/2006 and Rs. 4,52,999/- in MVC No. 147/2006 together with 6% interest thereon from the date of petition till the date of realisation from the respondent No. 3 - the owner of the tractor and trailer.

iii. The 3rd respondent - owner is directed to deposit the award amount in both the claim petitions together with interest within a period of three months from the date of receipt of copy of the order.

iv. Both the claimants are entitled for equal share in the compensation awarded.

v. In the event of deposit, the 90% of the compensation out of the respective share of each of the claimants together with proportionate interest shall be invested in fixed deposit in their respective names in any nationalised bank for a period of five years or till they attain the age of majority, whichever is earlier and the balance amount together with proportionate interest shall be released to their guardian Sri. Yallappa Ramappa Irannanavar, in both the claim petitions.

vi. The amount in deposit be refunded to the appellant-Insurance Company.

vii. The claim petition as against the appellant-Insurance Company are dismissed.