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Judgment
P.D. Waingankar, J.—This appeal by the appellant-insurance company is directed against the judgment and award dated 19.8.2008 in MVC No. 61/2005 on the file of District & Sessions Judge and MACT, Gadag, whereby the claim petition filed by the claimant-legal heirs of the deceased Kalakappa Sudi came to be partly allowed awarding compensation of Rs. 6,19,025/-.
On 28.9.2004, Kalakappa was proceeding on a motor cycle bearing No. KA 25/U-7227 from Dharwad to Kalghatagi. When he reached near Kanavi Honnapur cross, a tanker lorry bearing No. KA 19/8539 came from opposite direction in a rash and negligent manner and dashed against the motor cycle, as a result of which Kalakappa sustained grievous injuries and while undergoing treatment at Dharwad District hospital, he succumbed to injuries. His wife and children filed a claim petition under Section 166 of M.V. Act claiming compensation of Rs. 12,00,000/-. The claim petition was opposed by the insurer of the lorry contending that the accident occurred on account of negligence of the deceased himself while riding of the motor cycle. The claim petition came up for consideration before the tribunal. The tribunal on appreciation of evidence awarded a total compensation of Rs. 6,19,025/- with 6% interest thereon. Aggrieved by the quantum of compensation awarded, this appeal is preferred.
I have heard both the learned counsel appearing for the appellant- insurance company and respondent-claimants.
Though the insurance company challenged the judgment and award on the aspect of the negligence as well as quantum, during the course of arguments, learned counsel for the insurance company has not seriously assailed the finding on issue of negligence. It is suffice to say that the accident and the resultant death of the deceased was on account of rash and negligent driving by its driver.
Learned counsel for the insurance company would submit that the quantum of compensation computed and awarded by the tribunal is not correct. It is not in dispute that at the time of death, the deceased was aged 59 years. He was working as senior pharmacist at Koppa. He has taken voluntary retirement on 30.6.2002, his pension was fixed at Rs. 4,000/- per month. Out of that, an amount of Rs. 1,333/- had been commuted. The actual pension he was getting is at the rate of Rs. 2,667/- per month. After his death, his wife is getting family pension at the rate of Rs. 1,600/- per month.
The submission of the learned counsel for the insurance company is that the tribunal ought to have deduced the family pension of Rs. 1,600/- while determining the compensation. There is an element of truth in the submission made by the counsel for the insurance company. But, at the same time, it has to be stated that after taking voluntary retirement at the age of 59 years, Kalakappa-deceased was not doing any work to maintain as many as five members who were depending on his income. Definitely, he was doing some work so as to earn additional income. Though the petitioners have stated in the petition that deceased was working in a private firm and getting monthly income of Rs. 5,000/-, no material is forthcoming to substantiate the same. In that view of the matter, I am inclined to take additional income at the rate of Rs. 3,000/- per month apart from pension that he was getting at the time of his death. The actual pension that he was getting comes to Rs. 1,067/-, after deducting family pension amount of Rs. 1,067/- from Rs. 2,667/-. In that case, the total loss of income on account of death of the deceased comes to Rs. 4,067/- (Rs. 3,000/- + Rs. 1,067/-). If it is multiplied by ''12'', the total loss of annual income to comes to Rs. 48,804/-. If it is multiplied by ''9'' multiplier, having regard to the age of the deceased, the ''total loss of future income'' comes to Rs. 4,39,236/-. If 1/4th of his income is deducted towards living and personal expenses had he been alive, the ''total loss of dependency'' comes to Rs. 3,29,427/-. The tribunal has awarded Rs. 25,000/- towards ''conventional heads'' which is on the lower side. As such, it would be in the interest of justice to award Rs. 70,000/- under conventional heads. Thus the claimants are entitled for a total compensation of Rs. 3,99,427/- which is rounded off to Rs. 4.00 lakhs.
Accordingly, I pass the following order:--
"Appeal is allowed-in-part. The judgment and award dated 19.8.2008 passed in MVC No. 61/2005 stands modified awarding a total compensation of Rs. 4.00 lakhs together with 6% interest from the date of petition till the date of realisation."
The insurance company is directed to deposit the compensation amount together with interest within two months from the date of receipt of copy of the order.
The deposit and release of the amount shall be in the same proportion as ordered by the tribunal.
The amount in deposit shall be transmitted to the tribunal.