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Judgment
Budihal R.B., J.—This appeal is preferred by the claimants challenging the judgment and award dated 19.1.2013 passed in MVC. No. 281/2012 by the Fast Track Court, Basavakalyan, Bidar District with regard to the quantum of compensation. They have also challenged the correctness and legality of the judgment of the tribunal on the grounds mentioned in the appeal memorandum.
Brief facts leading to filing of the petition before the tribunal are that the claimants are the parents of deceased Channaveer Reddy. On 5.9.2011, the deceased along with his grand mother Saraswathi had been to police quarters situated at Satapur Bungalow to meet the relative. His grand mother was talking to relative and the deceased was playing in front of the quarters in the ground along with the other children. A police jeep bearing No. KA-38/G-354 coming in high speed and driven in rash and negligent manner hit against the deceased, who sustained injuries and succumbed to death. A case was registered in crime No. 123/2011 against the driver of the vehicle and respondent No. 1. The respondent insurance company filed objection statement denying the averments made in the petition and contended that it is not liable to pay compensation amount. Ultimately, the tribunal, considering the materials placed before it, partly allowed the claim petition awarding the amount of Rs. 2,05,000/- holding that the respondents are jointly and severally liable to pay compensation with interest at 6% p.a. from the date petition till realisation. Aggrieved by the same, the present appeal is preferred.
Heard the arguments of learned counsel appearing for the appellants-claimants and learned counsel appearing for the respondent-KGID.
Learned counsel appearing for the appellants during the course of arguments submitted that the tribunal has not correctly calculated the loss of dependency. The deceased was a minor and as per the decision of the Hon''ble Supreme Court in case of KISHAN GOPAL AND ANOTHER v. LALA AND OTHERS in C.A. No. 7137/2013, fixed income of Rs. 30,000/- per annum is to be taken. However, the tribunal has taken Rs. 15,000/-per annum and deducted 1/3rd of income towards his personal expenses, which is impermissible. It is also the contention of the learned counsel that even earlier also, while fixing the income at Rs. 15,000/- per annum, no deduction used to be made and because of reduction in money value, now the fixed income is raised to Rs. 30,000/- per annum as per the said judgment. Hence, it is his submission that deduction cannot be made because the deceased is not the earning member and there are no earnings. He has also submitted that the Hon''ble Supreme Court has considered the fixed income of minor at Rs. 30,000/- per annum without deduction and awarded compensation amount. In this connection, he relied upon the decision of the Hon''ble Supreme Court in case of KISHAN GOPAL AND ANOTHER v. LALA AND OTHERS in C.A. No. 7137/2013 disposed on 26.8.2013. Based on the said judgment, this Court, in other cases, has awarded compensation without deduction. In this connection, he has relied upon the judgment dated 12.8.2014 passed by this Court in MFA No. 200126/2014. It is also his contention that when the correctness and validity of the judgment was challenged, ultimately, the insurance company passed a memo stating that they will satisfy the award amount and withdrew the appeal, with permission of the court. Hence, the present appeal be allowed and compensation amount be enhanced in view of the said judgment.
Per contra, learned counsel appearing for respondent No. 2 KGID submitted that he is not disputing about fixed income of the minor at Rs. 30,000/- per annum, but he submitted that deduction will have to be made towards personal expenses of the deceased. In this connection, he submitted that in the Schedule and also in 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 , it is stated that deduction is to be made towards personal expenses irrespective of minor or major. Hence, it is his contention that when the said judgment has become final and confirmed by the larger Bench, the deduction has to be followed according to the said judgment. He has also relied upon the judgment in case of R.K. Malik and Another Vs. Kiran Pal and Others, (2009) ACJ 1924 : AIR 2009 SC 2506 : (2009) CLT 1370 : (2009) 8 JT 461 : (2009) 8 SCALE 451 : (2009) 14 SCC 1 : (2009) 10 SCR 87 : (2009) 6 UJ 2963 : (2009) AIRSCW 4381 and drew attention of this Court to para No. 17 of the said judgment with regard to the deduction to be made towards personal expenses. Hence, he submitted that the tribunal has properly appreciated and correctly calculated the amount. No illegality has been committed by the tribunal and hence, submitted to dismiss the appeal.
I have perused the grounds urged in the appeal memorandum, the judgment and award passed by the tribunal and also the oral and documentary evidence adduced in the case.
It is not in dispute that the deceased was a minor boy of three years of age. In case of a minor, as per the above said judgment of the Hon''ble Supreme Court, the fixed income to be taken at Rs. 30,000/- per annum is also not in dispute as per the submission made by both sides. The only contention of the learned counsel for the parties is with regard to the deduction of the personal expenses of the deceased.
I have perused the decision relied upon by the learned counsel appearing for the respondent No. 2 KGID which is referred above. In para No. 17 of the said judgment, it is observed as under:
"Reverting back to the factual position of the present case, the date of accident is 18.11.1997. Prior to this, the Second Schedule of the Act was already introduced w.e.f 14.11.1994. Thus, the notional income mentioned in the Second Schedule and the multiplier specified therein can form the basis for the pecuniary compensation for the loss of dependency in the present cases. No fact and reason was highlighted during the arguments why the Second Schedule should not apply in the present cases. The Second Schedule also provides for deduction of 1/3rd consideration towards expenses; which the victim would have incurred on himself if he had lived. As compensation for loss of dependency was a child. It by necessary implication takes into account future prospects, inflation, price rise, etc."
I have perused the decision relied upon by the learned counsel appearing for the appellants-claimants in Kishna Gopal''s case (supra). Perusing the said judgment, the Hon''ble Supreme Court has awarded the amount of Rs. 5.00 lakh with interest at 9% p.a. In the said decision, Rs. 50,000/-has also been awarded under the conventional heads. Looking to the judgment relied upon by the learned counsel appearing for the appellants, it is of the year 2013 and in the decision, relied upon by the learned counsel appearing for the respondent, it is of the year 2009. Looking to the judgment relied upon by respondent No. 2, it is the decision of the Division Bench of the Hon''ble Supreme Court, wherein in para No. 17, it is observed that Second Schedule provides for deduction of 1/3rd consideration towards expenses, which the victim would have incurred on behalf of himself if he had lived. Applying the decision in Sarla Varma''s case, as a thumb rule, the deduction is to be made towards personal expenses.
Looking to the principles enunciated in the said decision, I am of the opinion that deduction will have to be made towards personal expenses of the deceased taking the fixed income at Rs. 30,000/-per annum. But in the present case, the tribunal has taken the fixed income at Rs. 25,000/- per annum, which is not correct. Hence, it is taken at Rs. 30,000/- per annum and 1/3rd of income is deducted towards personal expenses of the deceased which comes to Rs. 10,000/- and the remaining amount would be Rs. 20,000/-. Considering the age of the mother of the deceased, she was aged 25 years at the time of incident. Hence, appropriate multiplier applicable is 18. Hence, the amount comes to Rs. 3,60,000/- (Rs. 20,000 x 18) under the head loss of dependency as against the amount of Rs. 1,80,000/- awarded by the tribunal. Hence, there will be enhancement of Rs. 1,80,000/-. Under the conventional heads, the claimants are entitled to another sum of Rs. 1,00,000/-. Hence, there is enhancement of Rs. 2,80,000/-.
Accordingly, the appeal is allowed in part. The appellant-claimants are entitled to enhanced compensation of Rs. 2,80,000/-. Respondent No. 2 KGID is directed to pay the enhanced compensation with interest at 9% p.a. from the date of petition till payment and the same is to be deposited before the concerned tribunal within thirty days from the date of receipt of a copy of this judgment.