B. Thippamma and Others vs P. Kandaswamy and Others

G. Narendra, J.—The appellants are before this Court being dissatisfied with the quantum awarded by the Tribunal and compensation for the loss of the lone earning member of the family, who is the husband of the first appellant, father of the second and third appellants and son of the fourth appellant.

The case of the appellants is that the deceased was employed by the owner of a tractor trailer as a loader and that the said tractor trailer was being used to load and transport sand.

The brief facts are, that on the fateful day of 25.10.2007, the deceased along with his co-workers, viz., Shekappa, Obaleshu and Basaiah Swamy were sitting on the sand that had been loaded on to the trailor and that the tractor was being driven cautiously and that about 11.00 A.M. when the tractor had reached Madenahalli gate, the offending vehicle, being the lorry bearing registration mark No. KA-01 B 7515 came from the rear side of the trailor and rammed into the trailor. The collision resulted in the trailor turning turtle and the deceased and other loaders who were sitting on the sand got thrown off the trailor and the deceased, in particular, suffered severe injuries to his head. It is alleged thereafter that the deceased was immediately rushed to a Super Speciality Hospital and despite best treatment, he succumbed to the injuries on the same day at about 8.10 p.m. Being aggrieved the appellants, who are the dependents of the deceased, approached the Tribunal and prayed for compensation of Rs. 10,95,000/-.

The Tribunal after notice to the respondents, who are the owner, driver and insurer of the offending vehicle, was pleased to award a sum of Rs. 5,38,600/- only under various heads which are as follows:--

Aggrieved by the meager amounts, the appellants have approached this Court praying that the balance sum of Rs. 5,56,400/- be awarded to them.

Heard the learned counsel for the appellants and the learned counsel for the second respondent-insurer.

The undisputed facts of the case are that the deceased was aged about 24 years and that he was gainfully employed as a loader and that his death occurred on account of the accident caused by the offending vehicle which is insured with the third respondent. With the above background, the only issue that falls for consideration by this Court, is the adequacy of the amount awarded as compensation under various heads.

The learned counsel for the appellants would submit that the Tribunal gravely erred in holding that the deceased was earning only Rs. 100/- per day and thereby fixing the notional income at Rs. 100/- which consequently lead to a meager sum of Rs. 4,89,600/- being awarded under the head loss of dependency i.e. the court has taken the monthly income at Rs. 3,000/-. He would submit that it is an undisputed fact that all the claimants are non-earning members and are wholly dependent on the deceased only and he would submit that by no stretch of imagination it can be presumed that the sum of Rs. 3,000/- per month, would not only be sufficient to feed five mouths but also to take care of them otherwise. He would state that this fact alone is sufficient to infer that the deceased was earning at least Rs. 200/-, if not more per day. He would also point out to the fact that the deceased was engaged as a loader for the purpose of loading sand, which commodity is in great demand in view of the booming construction industry. He would state that the courts have been consistently calculating the income at Rs. 6,000/- p.m. even in respect of the coolies, who naturally do not have any pay slips or salary accounts.

The submission of the learned counsel merits consideration.

He would further state that the first appellant (PW1) had deposed that her deceased husband was earning Rs. 200/- per day.

This evidence is unchallenged nor any evidence let in to rebut the same.

The accident is of the year 2007 and it can be safely inferred that the deceased was earning not less than Rs. 200/- per day. The reasoning by the Trial Court for disbelieving the version of the first appellant is that PW2, who deposed in favour of the appellant, did not speak about the wages that was being earned/paid to the deceased and hence the Trial Court has thought it fit to reject the assertion of PW1, the first appellant, that the deceased was earning Rs. 200/- per day. In the opinion of this Court, the reasoning to state simply, is not in consonance with law. It is seen that neither the insurer nor the insured have disputed the sum alleged to have been earned as daily wage. That being the case it was not incumbent upon the court to enter into a territory where there was no dispute or there was no lis between the parties. In that view of the matter, this Court is of the considered opinion that the said sum requires modification at the hands of this Court.

The counsel for the appellants would submit that he is restricting his submissions to the heads of ''loss of dependency'' and the sum awarded under the head of ''loss of consortium'' and ''loss of love and affection''. He would state that the Trial Court has grossly erred in awarding a meager sum of Rs. 10,000/- towards loss of consortium and has not awarded any sums under the head of ''loss of love and affection'' in respect of appellants 2 to 4. As rightly contended by the counsel for the appellants, the sum awarded is meager and contrary to the sum that is consistently being awarded by the Courts.

In that view of the matter the counsel for respondent No. 2-Insurance Company would support the judgment and award rendered by the Tribunal. It is submitted on behalf of respondent No. 2 that the trial Court erred in deducting only 1/5th and that as per the law laid down by the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the sum deductable is one-fourth in the case where the dependents numbers between 4 to 6 and only where the dependents are more than 6, 1/5th is deductable. This submission on behalf of the counsel for respondent No. 2 merits consideration and the same requires consideration at the hands of this Court.

In view of the above discussion this Court concludes that the daily wage earned by the deceased is to be taken at Rs. 200/- per day. Assuming that he spends at least four days with his family, the sum works out to Rs. 5200/- less one-fourth = Rs. 3900 x 12 x 17 = 7,95,600/-.

Hence a sum of Rs. 7,95,600/- is awarded under the head of ''loss of dependency''. The Tribunal has awarded a meager sum of Rs. 10,000/- under the head loss of consortium''. The Tribunal has failed to see that the first appellant is aged only about 22 years at the time of losing her husband. She has lost her companion at a very young age and that too after having two minor children who are aged about 3 and 1. At least had the first appellant had no issues, it could have been safely presumed that there was a possibility of remarriage. Now the first appellant has to shoulder the burden of rearing two minor children all alone. She has lost her husband who otherwise would have contributed to the upbringing and welfare of the children. In that view of the matter, she has also lost the joy and companionship at a very young age and hence this Court is of the opinion that the amount awarded towards ''loss of consortium'' requires to be specially enhanced and hence a sum of Rs. 50,000/- is awarded under the said head.

Further, the Tribunal has awarded a sum of Rs. 12,000/- towards ''loss of love and affection''. A sum of Rs. 30,000/- is awarded under the said head. Accordingly, the judgment and award of the Tribunal rendered in MVC No. 1272/2007 dated 6.1.2007 by the 1st Addl. Civil Judge (Sr.Dn.)/Member, MACT-V, Bellary, is modified. The awards under the other heads are confirmed.

Accordingly, the appeal stands disposed of in the above terms. The second respondent-insurer is directed to deposit the difference of sum i.e. Rs. 3,64,000/- within a period of six weeks from the date of receipt of the copy of this order, which carries interest at the rate of 8% p.a. from the date of petition till realization.

Out of the enhanced amount, a sum equivalent to 25% shall be released in favour of the first appellant and the balance sum of 75% shall be kept in fixed deposit in the names of the second and third appellants and they shall be entitled to encash the same after both have completed 23 years.