Vasu Devadiga vs Vasantha Poojary and Others

N.K. Patil, J—Though this matter is posted today for orders on I.A., the same is taken up for final disposal, with the consent of learned counsel appearing for both the parties and having regard to the facts and circumstances of the case.

This appeal by the claimants is directed against the impugned common judgment and award dated 10/06/2013, passed in MVC No. 1036/2011, by the II Additional Senior Civil Judge and Member, Motor Accident Claims Tribunal, Mangalore D.K., (hereinafter referred to as '' Tribunal'' for short), for enhancement of compensation.

The Tribunal by its judgment and award, has awarded a sum of Rs. 5,34,000/- under different heads with interest at 6% per annum from the date of petition till realization, as against the claim of the claimants for a sum of Rs. 30,00,000/-, on account of the death of the deceased Sri. Keshava Devadiga, in the road traffic accident.

In brief, the facts of the case are:

"The claimant No. 1 is the father and claimant No. 2 is the mother of the deceased. They have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents, on account of the death of the deceased in the road traffic accident, contending that on 12.5.2011 at about 9.30 p.m. deceased was returning back to his house from Hosemar as pillion rider along with Jagadish Devadiga in the Motor cycle bearing Reg. No. KA.21.J.2159 after attending marriage function on Belthangady-Karkala road by observing the rules and regulations and when they reached near Kukkuje cross in Kuthlooru village of Belthangady taluk, at that time, the driver of the auto bearing Reg. No. KA.21.3931 came with high speed in a rash and negligent manner and taken turn suddenly towards Alambe road without following the traffic rules and dashed to the motor cycle. Due to which, deceased sustained multiple injuries all over the body. Immediately, he was shifted to A.J. Hospital at Mangalore, where he was declared as dead by the Doctor."

It is the further case of the claimants that, deceased was aged about 24 years, hale and healthy prior to the accident, working as a Tipper Lorry driver under one Mr. Mahesh and earning Rs. 10,000/- per month and Rs. 50/- as batta and looking after the welfare of the family. The untimely death of the deceased has affected the social and financial condition of the family as they have lost their earning member, 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. 5,34,000/- under different heads with interest at 6% p.a., from the date of petition till realization. After passing of the judgment and award, claimant No. 2, mother of the deceased died and now the claimant No. 1, father of the deceased is the sole dependant.

Being aggrieved by the judgment and award passed by the Tribunal, appellant has filed his appeal for enhancement of compensation.

We have heard learned counsel appearing for the appellant and learned counsel appearing for Insurer.

The submission of learned counsel Sri. Guruprasad B.R., appearing for the appellant, at the outset is that, the Tribunal has erred in not assessing the income of the deceased reasonably and what is assessed is on the lower side and is liable to reassessed, on the ground that, deceased was aged about 24 years, hale and healthy prior to the accident, working as a tipper lorry driver and drawing the salary of Rs. 10,000/- per month with Rs. 50/- per day as batta and dependant is his father, who was a senior citizen and mother had died after passing of the judgment by the Tribunal. Therefore, he submitted that, the income of the deceased may be re-assessed and after deducting 50% towards his personal and living expenses and adopting the multiplier of ''18'' taking the age of the deceased, reasonable compensation may be awarded towards loss of dependency. He further submits that the compensation awarded by the Tribunal towards conventional heads and the rate of interest awarded at 6% p.a., is on the lower side and is liable to be enhanced reasonably in the light of the judgments of the Apex Court and this Court. Therefore, he submitted that the impugned judgment and award is liable to be modified.

As against this, learned counsel for the Insurer, inter-alia, contended and substantiated that, the Tribunal, after due appreciation of the oral and documentary evidence available on file, has justified in awarding reasonable compensation under all the heads and therefore, it does not call for interference.

After hearing the learned counsel for both 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 are not in dispute. It is also not in dispute that appellant is the father of the deceased and mother of the deceased died after passing of the judgment by the Tribunal. It is the case of the appellant that deceased was aged about 24 years, working as Tipper lorry driver and drawing the salary of Rs. 10,000/- per month. To prove the same, appellant has examined PW3. But the Tribunal has not accepted the same while assessing the income of the deceased and what is assessed is on the lower side and needs to be re-assessed reasonably. Having regard to the age, occupation of the deceased, the year of accident, we re-assess the income of the deceased at Rs. 8,000/- per month to meet the ends of justice instead of Rs. 6,000/- per month as assessed by the Tribunal. Out of which, if 50% ( Rs. 4,000/-) is deducted towards the personal and living expenses of the deceased, since he was a bachelor, his net income comes to Rs. 4,000/- per month. The appropriate multiplier applicable is ''18'' taking the age of the deceased as 24 years. Therefore, we redetermine the loss of dependency at Rs. 8,64,000/- ( Rs. 4,000/- x 12 x 18) instead of Rs. 5,04,000/- awarded by the Tribunal and accordingly, it is awarded.

Having regard to the facts and circumstances of the case, we award a sum of Rs. 50,000/- towards loss of love and affection, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses.

Further, as rightly pointed out by the learned counsel appearing for the appellant, the rate of interest awarded by the Tribunal at 6% p.a., from the date of petition till its realization is on the lower side and is liable to be enhanced 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 from the date of petition till its realization on the enhanced compensation.

In all, the appellant is entitled to the total compensation of Rs. 9,64,000/- instead of Rs. 5,34,000/- awarded by the Tribunal. There would be an enhancement of compensation of Rs. 4,30,000/- 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. The impugned common judgment and award dated 10/06/2013, passed in MVC No. 1036/2011, by the II Additional Senior Civil Judge and Member, Motor Accident Claims Tribunal, Mangalore D.K., is hereby modified, awarding a sum of Rs. 4,30,000/- 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. 4,30,000/- 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.

Out of the enhanced compensation of Rs. 4,30,000/-, a sum of Rs. 3,00,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of appellant, father of the deceased, in any Nationalized or Scheduled or Grameena Bank, for a period of 05 years, renewable by another 05 years, with liberty reserved to him to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 1,30,000/- with proportionate interest shall be released in favour of the appellant immediately.

Draw the award, accordingly.