V.C. Swapna and Others vs Mahadeva and Others

N.K. Patil, J.—This appeal by the claimants is directed against the judgment and award dated 28th January 2015, passed in MVC No. 405/2013, by the Senior Civil Judge, JMFC, Kollegal, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 15,25,000/- awarded in favour of the claimants as against their claim for Rs. 97,95,000/-, is inadequate.

The facts in brief are that, the claimants are the wife, two minor children and parents of the deceased R. Ashok Kumar. They filed the claim petition under Section 166 of the Motor Vehicles Act, contending that, at about 5:15 P.M, on 28-10-2013, when the deceased R. Ashok Kumar was proceeding towards Kollegal on Kollegal-Bangalore Main Road near Sathegala village in the Scooter bearing Registration No. KA-10/R-3116 slowly and cautiously on the left side of the road, at that time, a Canter bearing Registration No. KA-05/D-3906 came at a high speed, in a rash and negligent manner and dashed against the Scooter of the deceased and caused the accident. Due to the impact, the deceased sustained grievous injuries to his head and other parts of the body and immediately he was shifted to the nearby Hospital. But, unfortunately, he succumbed to the accidental injuries while taking treatment in the Hospital.

It is the case of the appellants that, the deceased was aged about 34 years, a Proprietor of A.R. Nair Electricals and Engineering Works, earning substantial sum of Rs. 1,00,000/- per month and hale and healthy prior to the accident. On account of the untimely and unnatural death of the deceased, the appellants have lost the love and affection, inspiration and guidance, apart from social, financial and moral support and therefore, they have to be compensated reasonably.

On account of the death of the deceased, the appellants filed the claim petition before the Tribunal, seeking compensation against the respondents. The said claim petition had come up for consideration before the Tribunal on 28th January, 2015. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 15,25,000/- under different heads, with 6% interest per annum, from the date of petition till the date of payment. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants are in appeal before this Court, seeking enhancement of compensation.

We have gone through the grounds urged in the memorandum of appeal and heard the learned counsel appearing for appellants and also the Insurer, for quite some time.

Shri. P. Mahadeva Swamy, learned counsel appearing for claimants/appellants vehemently submitted that, the Tribunal grossly erred in assessing the income of the deceased at only Rs. 10,000/- per month, when in fact, the deceased was a young and energetic person, aged about 34 years, working as a proprietor of A.R. Nair Electricals and Engineering Works, earning a sum of Rs. 1,00,000/- per month. To substantiate the said income, the claimants have produced Ex. P15, Accounts statement of the deceased issued by Corporation Bank, Kollegal, Ex. P16, permission given by Municipality, Kollegal to run the business and Ex. P22, Form No. 16-A submitted by the deceased, during his life time regarding TDS. The claimants are none other than the wife, aged about 24 years, two minor children aged about four years and ten months and parents aged about 53 years and 65 years respectively. The deceased was the only earning member in the family and on account of his untimely death, the family is displaced and they are in total financial distress. Therefore, he submitted that reasonable monthly income of the deceased may be reassessed at least between Rs. 12,000/- and Rs. 13,000/- per month and reasonable compensation may be awarded towards loss of dependency, by adopting proper multiplier and deducting 1/4th towards the personal and living expenses of the deceased.

He further submitted that the compensation awarded by Tribunal towards conventional heads is also on the lower side. The accident is of the year 2013 and therefore, in the light of the judgment of the Hon''ble Apex Court and this Court in catena of decisions, reasonable compensation towards conventional heads may be awarded.

Further, learned counsel appearing for claimants vehemently submitted that the rate of interest awarded by Tribunal at 6% p.a. is also on the lower side as the accident has occurred on 28-10-2013. In view of the ratio of law laid down by the Hon''ble Apex Court and this Court in catena of decisions, at least 9% to 10% interest per annum may be awarded in the instant case, to meet the ends of justice and the impugned judgment and award be modified accordingly.

As against this, Shri. Janardhan Reddy, learned counsel appearing for Insurer vehemently submitted that the compensation awarded by Tribunal is after due appreciation of the oral and documentary evidence available on file and also taking into consideration the age, avocation and also the year of accident etc. Therefore, interference in the same is not called for. However, considering the year of accident, he fairly submitted that reasonable enhancement may be made towards conventional heads, in the light of the judgments of the Hon''ble Apex Court and this Court in host of judgments.

After hearing learned counsel for the parties, and after careful perusal of the judgment and award passed by the Tribunal, the only point that arise for our consideration in this appeal is,

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

The undisputed facts of the case are, the occurrence of accident and the resultant death of the deceased R. Ashok Kumar. It is also not in dispute that the deceased was aged about 34 years, working as a Proprietor of A.R. Nair Electricals and Engineering Works at Kollegal, earning a sum of Rs. 1,00,000/- per month. The claimants in support of the business run by the deceased, have produced credible documentary evidence and the same are accepted. But, they have not produced any documentary evidence, such as income tax returns, to show that the deceased was earning Rs. 1,00,000/- per month. In the absence of the same, the Tribunal has assessed the income of the deceased at Rs. 10,000/- per month. The same is the lower side and liable to be re-assessed. The accident is of the year 2013 and the claimants have produced Ex. P22, Form No. 16-A. Therefore, having regard to the age, avocation and also the year of accident, coupled with the documentary evidence at Ex. P22, we re-assess the income of the deceased at Rs. 12,000/- per month, to meet the ends of justice. Further, the claimants are none other than the wife, two minor children and parents of deceased and as the dependents are five in number, we deduct 1/4th towards personal expenses of the deceased. Accordingly, If 1/4th (i.e. Rs. 3,000/-) is deducted from Rs. 12,000/- towards his personal and living expenses, the net income would be Rs. 9,000/- per month. Further, it is stated that the deceased was aged about 34 years as on the date of accident. Therefore, for the said age, the proper multiplier applicable is ''16'' as per the decision of the Hon''ble Apex Court in Sarla Verma''s case (2009 ACJ 1298) as rightly adopted by Tribunal. Thus, the compensation towards loss of dependency would work out to Rs. 17,28,000/- (i.e. Rs. 9,000/- x 12 x''16'') as against Rs. 14,40,000/- awarded by Tribunal.

Further, the Tribunal has erred in not awarding reasonable compensation towards conventional heads. The deceased has left behind him wife, aged about 24 years, two minor children aged about four years and ten months and parents aged about 53 years and 65 years respectively. The wife has lost her soul-mate at an young age and the children have lost the love and affection, inspiration and special guidance and the parents have lost the social, moral and financial security. Therefore, in the light of the judgment of the Hon''ble Apex Court and this Court in catena of decisions, we award a sum of Rs. 1,00,000/- towards loss of consortium as against Rs. 25,000/-; Rs. 25,000/- towards loss of estate as Tribunal has not awarded any compensation under this head, Rs. 1,25,000/- towards loss of love and affection at the rate of Rs. 25,000/- to each claimant as against Rs. 40,000/-and Rs. 25,000/- towards transportation of dead body and funeral expenses as against Rs. 20,000/- awarded by Tribunal. Thus, the total compensation payable to claimants works out to Rs. 20,03,000/- as against Rs. 15,25,000/- awarded by the Tribunal. There would be enhancement of compensation by a sum of Rs. 4,78,000/-.

As rightly pointed out by learned counsel appearing for claimants, the rate of interest at 6% per annum awarded by Tribunal is on the lower side, as the accident has occurred on 28-10-2013. Therefore, as per the ratio of law laid down by the Hon''ble Apex Court and this Court in catena of decisions and also considering the facts and circumstances of the case, we deem it fit and proper to award rate of interest at 9% 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 filed by appellants is allowed in part. The impugned judgment and award dated 28th January 2015, passed in MVC No. 405/2013, by the Senior Civil Judge, JMFC, Kollegal, is hereby modified, awarding a sum of Rs. 20,03,000/- as against Rs. 15,25,000/- awarded by the Tribunal, from the date of petition till the date of realization. Thus, there would be enhancement of compensation by a sum of Rs. 4,78,000/- with 9% interest per annum from the date of petition till the date of realization.

The second respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 4,78,000/-, with interest thereon at 9% per annum, within three weeks from the date of receipt of copy of the judgment.

Immediately on such deposit by the Insurance Company, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in the name of first appellant -wife of deceased, in Fixed Deposit, in any scheduled/Nationalized/Grameena Bank, for a period of fifteen years, renewable by fifteen years, with liberty reserved to her to withdraw the periodical interest.

A sum of Rs. 1,00,000/- with proportionate interest shall be invested in the name of fourth appellant -mother of deceased, in Fixed Deposit, in any scheduled/Nationalized/Grameena Bank, for a period of five years, renewable by five years, with liberty reserved to her to withdraw the periodical interest.

A sum of Rs. 1,00,000/- each with proportionate interest shall be invested in the names of second and third appellants - minor children of deceased, in Fixed Deposit, in any scheduled/Nationalized/Grameena Bank, till they attain the age of 30 years, with liberty reserved to appellant No. 1/natural guardian of appellants Nos. 2 and 3 to withdraw the periodical interest for their welfare, till they attain the age of 21 years and from 22 years to 30 years, the appellant Nos. 2 and 3 are entitled to withdraw their respective periodical interest.

Remaining sum of Rs. 78,000/- with proportionate interest shall be released in favour of the appellant Nos. 1, 4 and 5, in equal proportion, immediately.

Office to draw award, accordingly.