Vedavathi and Others vs Reliance General Insurance Com. Ltd. and Others

N.K. Patil, J—Though the matter is listed for orders, with the consent of the learned Counsel for both parties, this appeal is taken up for final disposal.

This appeal is filed by the claimants against the impugned judgment and award dated 19.12.2013 passed in MVC No. 982/2011 on the file of the 1st Additional Senior Civil Judge & CJM, Member, MACT, Mangalore (hereinafter referred to as ''Tribunal'' for brevity) awarding compensation of Rs. 9,31,200/- with interest at 6% p.a. from the date of petition till the date of deposit, fixing 40% contributory negligence on the part of the deceased, on account of the death of Shankar in a road traffic accident. On the ground that the quantum of compensation awarded by the Tribunal is on the lower side and the contributory negligence fixed is on the higher side, the claimants have presented this appeal.

Brief facts of the case in hand are:

Appellant No. 1 is the wife, appellant Nos. 2 to 5 are the children and respondent No. 3 is the mother of the deceased Shankar. The claimants contend that the deceased was hale and healthy prior to the accident and was aged 45 years. He was working as male assistant in NITK and earning Rs. 15,358/- p.m. That on 08.04.2011, at about 7.30 p.m., at NITK Guest House, Main Gate, Surathkal, Mangalore Taluk on N.H. 17, the accident took place due to actionable negligence of Car bearing registration No. KA-09/P-4126, being driven by its driver in an actionable negligence. Due to the impact, the deceased sustained multiple fatal injuries and was unconscious. He was immediately shifted to Govt. Padmavathi Hospital at Surathkal, where he was given first aid treatment and whereafter, he was shifted to A.J. Hospital at Mangalore, where he was declared ''dead''. Due to the untimely death of the deceased, the family is put to great hardship. He used to contribute his entire income to the welfare of his family. Appellant No. 1 has lost life companion and children have lost love and affection, inspiration and guidance from the deceased. Respondent No. 3, mother of the deceased is deprived of seeing the bright future of her son. The family has lost social and economic security. Therefore, the claimants were constrained to file a claim petition under Section 166 of the M.V. Act claiming compensation of Rs. 50,00,000/- against the respondents on account of the death of Shankar in road traffic accident. The claim petition filed by the claimants came up for consideration before the Tribunal and the Tribunal in turn after perusal of the oral and documentary evidence available on file, allowed the claim petition in part awarding a sum of Rs. 9,31,200/- with interest at 6% p.a. from the date of petition till the date of deposit, fixing 40% contributory negligence on the part of the deceased. Being dissatisfied with the same, the claimants have presented this appeal.

We have heard Sri B.R. Guruprasad, learned Counsel appearing for the appellants and Sri H.N. Keshava Prashanth, learned Counsel appearing for the first respondent - Insurance Company.

Learned Counsel for the appellants submits that the tribunal has committed grave error in assessing the income of the deceased at only Rs. 12,000/- p.m. and fixing the contributory negligence at 40% on the part of the deceased. The deceased was working as male assistant in NITK. The salary certificate at Ex. P. 8 shows that the deceased was earning Rs. 15,358/- p.m. The reasoning given by the tribunal is contrary to the evidence on record. As per the judgment in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 , the tribunal ought to have added 30% towards future prospects as the deceased was in secured job and out of which permissible deduction of Rs. 200/- towards professional tax and deduct 1/4th towards personal expenses of the deceased. On a careful perusal of the Ex. P. 3 - sketch and Ex. P. 6 - Spot Mahazar, the entire negligence should have been fixed on the driver of the Car. Even P.W. 2 the eyewitness has unequivocal terms stated that there is negligence on the part of the driver of the Car. These aspects of the matter have not been looked into nor taken into consideration by the tribunal while awarding compensation. The tribunal has also erred in awarding rate of interest at only 6% p.a. which is on the lower side. The Apex Court and this Court in catena of judgments have awarded 9% interest per annum in similar circumstances. Therefore, he prays to reassess the income of the deceased and award interest at the rate of 9% instead of 6% p.a. awarded by the tribunal. Hence, he submitted that the compensation awarded is liable to be enhanced by modifying the judgment and award of the Tribunal.

Per contra, learned Counsel for the first respondent - Insurance Company contended that, the Tribunal has awarded reasonable compensation after due consideration of the oral and documentary evidence available on record. He also pointed out that the Tribunal has assessed reasonable income of the deceased and fixing 40% contributory negligence on the part of the deceased by the Tribunal is just and proper. The reasoning given at paragraph Nos. 11 and 12 is also just and proper. The evidence of eyewitness - P.W. 2 in cross-examination is corroborative with that of the records and hence, the judgment and award does not call for interference.

After critical evaluation of the material available on record and considering the submissions made by the learned Counsel for both parties and perusal of the impugned judgment and award, the point that arise for our consideration is:

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

The occurrence of the accident and the resultant death of deceased Shankar are not in dispute. Further, it is also not in dispute that the deceased was working as male assistant in NITK company and the claimants are none other than the wife and children of the deceased. The accident occurred on 08.04.2011 and the deceased was aged about 35 years. As rightly pointed out by the learned Counsel for the appellants, the Tribunal has erred in assessing the income at only Rs. 12,000/- p.m., which is on the lower side. As per Ex. P. 8 - salary certificate the deceased was earning Rs. 15,358/- p.m. and the same is accepted. As per the judgment of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 , we can safely add 30% towards future prospects, which comes to Rs. 19,965/- p.m. (Rs. 15,358/- + Rs. 4,607/-) and by deducting Rs. 200/- towards professional tax, the net income comes to Rs. 19,765/- p.m. By deducting 1/4th towards personal expenses of the deceased, it comes to Rs. 14,824/- (Rs. 19,765/- - Rs. 4,941). The tribunal has rightly adopted the appropriate multiplier of ''14'' and the same is accepted. Accordingly, we re-determine the ''loss of dependency'' at Rs. 24,90,432/- (Rs. 14,824/- x 12 x 14) as against Rs. 15,12,000/- awarded by the Tribunal.

Further, the Tribunal has awarded Rs. 10,000/- towards transportation and funeral Expenses, Rs. 15,000/- towards loss of love and affection and Rs. 15,000/- towards loss of consortium, which is also on the lower side. Therefore, we deem it fit to award Rs. 1,00,000/- towards loss of consortium, Rs. 1,50,000/- towards loss of love and affection at Rs. 25,000/- to each claimant, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses, to meet the ends of justice.

Regarding the contributory negligence, the tribunal has recorded the reasons at paragraph Nos. 11 and 12 of the impugned judgment and award. The tribunal, after critical evaluation of Ex. P. 6 - copy of sketch, Ex. P. 5 - Copy of charge sheet and Ex. P. 3 - spot mahazar has discussed elaborately and has rightly come to a conclusion. The eyewitness - P.W. 2 has admitted the negligence of the deceased in the cross-examination in unequivocal terms. Therefore, it establishes beyond reasonable doubt that the accident has occurred on account of negligence on the part of the deceased and the driver of the Car. There is material proof to show that there was negligence on the part of the deceased also. The reasoning given in paragraph Nos. 9 and 10 of the judgment is after due consideration of the oral and documentary evidence on record. Therefore, the finding of the tribunal cannot be found fault with and interference is uncalled for. Hence, fastening 40% of the contributory negligence on the part of the deceased is just and proper and interference by this Court is uncalled for.

As rightly pointed out by the learned Counsel for the appellants, the accident is of the year 2011 and as per the catena of judgments of this Court and the Apex Court, we can safely award 9% interest per annum on the enhanced compensation.

For the foregoing reasons, the instant appeal filed by the appellants is allowed in part. The judgment and award dated 19.12.2013 passed in MVC No. 982/2011 on the file of the 1st Additional Senior Civil Judge & Member, MACT, Mangalore, is hereby modified.

The appellants are entitled for a total compensation of Rs. 27,90,432/- as against Rs. 15,52,000/- awarded by the Tribunal. After deducting the contributory negligence of 40%, the enhanced compensation comes to Rs. 7,43,060/- (Rs. 27,90,432/- - 40% = Rs. 16,74,260/- - Rs. 9,31,200/- awarded by Tribunal) with interest at the rate of 9% p.a. from the date of claim petition till the date of deposit.

First Respondent - Insurance Company is directed to deposit the enhanced compensation amount along with interest within three weeks from the date of receipt of the copy of this judgment.

Out of the enhanced compensation of Rs. 7,43,060/- a sum of Rs. 3,00,000/- with proportionate interest shall be invested in F.D. in the name of appellant No. 1, in any Nationalised or Scheduled or Grameena bank for a period of 10 years and renewable for another 10 years, with liberty to withdraw the interest periodically.

A sum of Rs. 75,000/- each with proportionate interest shall be invested in F.D. in the name of appellant Nos. 2 to 5, in any Nationalised or Scheduled or Grameena bank, till they attain the age of 30 years and appellant No. 1 is entitled to withdraw the interest periodically, till they attain the age of 21 years, for their welfare. From 22 years to 30 years, appellant Nos. 2 to 5 are entitled to withdraw the interest periodically.

A sum of Rs. 1,00,000/- with proportionate interest shall be invested in F.D. in the name of respondent No. 3, aged 68 years in any Nationalised or Scheduled or Grameena bank for a period of 5 years and renewable for 5 years, with liberty to withdraw the interest periodically.

Remaining Rs. 43,060/- with proportionate interest shall be released in favour of the appellant No. 1 immediately on deposit by the first respondent - Insurance Company.

Office to draw the award, accordingly.