Usha and Others vs C. Arasegowda and Others

N.K. Patil, J.—Though this matter is posted in the orders list, it is taken up for final disposal with the consent of the learned counsel appearing for the parties.

This appeal by the claimants is directed against the impugned judgment and award dated 19.04.2013 passed in MVC No. 760/2010 on the file of the Senior Civil Judge and JMFC and Addl. MACT, Kunigal (hereinafter referred to as ''Tribunal'' for short) seeking to enhance the compensation.

The Tribunal by its judgment and award has awarded compensation of Rs. 4,33,600/- under different heads with interest at 6% per annum from the date of petition till the realization after deducting 20% towards contributory negligence fixed on the part of the deceased-Shankaraiah.

In brief, the facts of the case are:

The 1st appellant is the wife, 2nd appellant is the minor daughter, 3rd appellant is the mother of the deceased-Shankaraiah and they filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents, on account of the untimely death of the deceased-Shankaraiah in the road traffic accident. It is the case of the claimants that on 04.04.2010 at about 03.00 p.m. the deceased and another person were travelling in TVS Victor bearing registration No. KA-05-EX-5078 near Kenkere village, on NH. 48 road. At that time, a Fiat Car bearing registration No. KA-09-M-862 being driven by its driver in a rash and negligent manner, in high speed, dashed against the TVS Victor, in which the deceased was travelling. Due to the impact, the deceased sustained fatal injuries. Immediately, he was shifted to Sapthagiri Hospital, Kunigal and thereafter to A.C. Giri Hospital, B.G. Nagar and the Doctors declared that the deceased succumbed to the injuries sustained in the road traffic accident. It is further case of the appellants that the deceased was aged about 32 years, working as Supervisor cum Helper in Earth Movers, earning Rs. 10,000/- per month and Rs. 200/- per day as Bata. He was the only earning member of the family and entire family was depending upon the income of the deceased. On account of his untimely death, the wife has lost her life partner and the daughter has lost love and affection, guidance, inspiration and security in life. His mother is deprived to see the bright future of her son. It has also affected social, moral and economic condition of the family. Therefore, they were constrained to file a claim petition against the respondents claiming compensation. 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 record, allowed the claim petition in part, awarding compensation of Rs. 4,33,600/- under different heads with interest at 6% p.a., from the date of petition till the date of realization, after deducting 20% towards contributory negligence fixed on the part of the deceased. Not being satisfied with the impugned judgment and award passed by the Tribunal, the appellants have presented this appeal, for enhancement of compensation and to set aside the 20% contributory negligence fixed on the part of the deceased.

The submission of Sri. Abdul Khadar, learned counsel appearing for the appellants, at the outset is that, the Tribunal has erred in not assessing the reasonable income of the deceased. He was aged about 32 years, working as Supervisor cum Helper in Earth Movers, earning Rs. 10,000/- per month and Rs. 200/- per day as a Bata. Claimants are none other than the wife, minor daughter and mother of the deceased and the accident had occurred on 04.04.2010. The Tribunal is not justified in not assessing the reasonable income and atleast Rs. 5,500/- to Rs. 6,000/- p.m. income should have been taken. Out of which, 1/3rd personal expenses should have been deducted and by applying ''16'' multiplier, the loss of dependency ought to have been calculated. Further, he is quick to point out that the Tribunal has not awarded reasonable compensation towards conventional heads such as loss of consortium, loss of estate, loss of love and affection and transportation and funeral expenses.

Further, he submitted that the Tribunal ought to have fixed entire negligence on the part of the driver of the Fiat Car. Fixing 20% contributory negligence on the part of the deceased is contrary to the material on record. Further, he submits that the rate of interest at 6% p.a. awarded by the Tribunal is also on the lower side. Therefore, he submits to enhance the compensation and rate of interest and to set aside the 20% contributory negligence fixed on the part of the deceased by modifying the impugned judgment and award passed by the Tribunal.

Per contra, Sri. L. Sreekanta Rao, learned counsel appearing for respondent No. 2-insurer, inter alia, contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper. After due appreciation of the oral and documentary evidence available on record, the Tribunal is justified in awarding reasonable compensation towards loss of dependency and fixing 20% contributory negligence on the part of the deceased. Therefore, interference by this Court is not called for.

After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for consideration is:

"1. Whether the Tribunal is justified in fixing 20% contributory negligence on the part of the deceased?

Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"

Re. Point No. 1

The Tribunal after due appreciation of the oral evidence of P.W. 1 to P.W. 3 and documentary evidence available on record, has fixed 20% contributory negligence on the part of the deceased, which is just and proper. We do not find any justification to consider the ground taken for setting aside the contributory negligence fixed on the deceased. Therefore, interference by this Court is not called for.

Re. Point No. 2

Occurrence of accident and the resultant death of deceased are not in dispute. Claimants are none other than the wife, minor daughter and mother of the deceased. Further, it is not in dispute that, the deceased was aged about 32 years at the time of accident, hale and healthy and working as Supervisor cum Helper in Earth Movers, 10,000/- per month and Rs. 200/- per day as a Bata, looking after the welfare of the appellants. The entire family was dependent on the income of the deceased. On account of his untimely death, the wife has lost her life partner and the daughter has lost love and affection, guidance, inspiration and security in life. The mother is deprived to see the bright future of her son. It has also affected social, moral and economic condition of the family. The accident has occurred on 04.04.2010. Having regard to the age, avocation and year of the accident, we can safely re-assess the income of the deceased at Rs. 5,500/- per month, to meet the ends of justice. Out of which 1/3rd should be deducted towards personal expenses. The deceased was aged about 32 years. Appropriate multiplier is ''16''. Accordingly, we re-determine the loss of dependency at Rs. 7,04,064/- (Rs. 3,667/- x 12 x 16) as against Rs. 5,12,000/- awarded by the Tribunal.

As rightly submitted by the learned counsel for the appellants, the Tribunal has not awarded reasonable compensation towards conventional heads. Having regard to the facts and circumstances of the case, we deem it fit to award 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 each claimant, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses. In all the appellants/claimants are entitled for a total compensation of Rs. 9,29,064/-.

Out of Rs. 9,29,064/-, if 20% contributory negligence is deducted, the remaining amount comes to Rs. 7,43,252/-. Therefore, in all the appellants are entitled for Rs. 7,43,252/- as against Rs. 4,33,600/- awarded by the Tribunal. There will be an enhancement of Rs. 3,09,652/-.

Further, the rate of interest at 6% p.a. awarded by the Tribunal is on the lower side. The accident is of the year 2010. Following the judgment of the Supreme Court and this Court, we award the interest at 8% per annum on the enhanced compensation from the date of petition till the date of realization.

In the light of the facts and circumstances of the case as stated above, the appeal is allowed in part. The impugned judgment and award dated 19.04.2013 passed in MVC No. 760/2010 on the file of the Senior Civil Judge and JMFC and Addl. MACT, Kunigal, is hereby modified awarding an enhanced compensation of Rs. 3,09,652/- with 8% interest per annum from the date of petition till realization.

The respondent No. 2-insurer is directed to deposit the enhanced compensation with interest at 8% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment.

Out of the enhanced compensation of Rs. 3,09,652/-, Rs. 1,50,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized/Scheduled Bank or Grameena Bank, in the name of the 1st appellant-Smt. Usha for a period of Fifteen years and renewable for another Fifteen years, with liberty to her to withdraw the periodical interest accrued on it.

A sum of Rs. 1,00,000/- with proportionate interest shall be invested in the name of appellant No. 2 in Fixed Deposit in any Nationalized/Scheduled Bank or Grameena Bank till she attains the age of 30 years with liberty reserved to the appellant No. 1 to withdraw the periodical interest accrued on it for her welfare till she attains the age of 21 years and thereafter from 22 years to 30 years, appellant No. 2 is entitled to withdraw the interest periodically.

The remaining Rs. 59,652/- with proportionate interest shall be released in favour of the 1st and 3rd appellants, in equal proportion, immediately, on deposit by respondent No. 2-insurer.

Office to draw the award, accordingly.