Chandu Poojary and Others vs Ganesh Shastri and Others

N.K. Patil, J.—This appeal by the claimants is directed against the judgment and award dated 31st December 2012, passed in MVC No. 198/2012, by the Presiding Officer, Fast Track Court, Motor Accident Claims Tribunal, Kundapura, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 1,74,000/- awarded in favour of the claimants as against their claim for Rs. 20,90,000/-, is inadequate.

The facts in brief are that, the claimants are the wife and major children of the deceased Korga Poojary. They filed the claim petition under Section 166 of the Motor Vehicles Act, contending that, at about 10:30 Hours, on 14-05-2011, when the deceased Korga Poojary was walking on the left side mud portion of Koteshwara Halady Road, near Balakrishna Shetty''s Shop, at that time, a motor cycle bearing Registration No. KA-03/EJ-6422 came from Koteshwara side at a high speed, in a rash and negligent manner and lost control over it and came to the extreme left side mud portion of the road and dashed against the deceased at his back, due to which, the deceased sustained injuries and died in K.M.C. Hospital, Manipal, on the next day.

It is the case of the appellants that, the deceased was aged about 65 years, and working as Coolie, earning a sum of Rs. 4,500/- per month and hale and healthy prior to the accident. On account of the untimely 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 31st December, 2012. 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. 1,74,000/- 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.

Learned counsel appearing for claimants/appellants vehemently submitted that, the Tribunal grossly erred in taking the income of the deceased at only Rs. 3,000/- per month. He submits that the deceased was aged about 65 years, an experienced Coolie, earning a sum of Rs. 4,500/- per month. But, disbelieving the same, the Tribunal, without any basis has assessed the income of the deceased at only Rs. 3,000/- per month. The same is liable to be reassessed. He further submitted that the deceased being the Kartha of the family was the only source of income and the claimants have lost the love and affection on account of his untimely death. Therefore, he submitted that, reasonable compensation may be awarded towards loss of dependency, by re-assessing the income of the deceased between Rs. 6,500/- and Rs. 7,000/- per month, considering the year of accident, age of deceased and experience in coolie work and by adopting proper multiplier and deducting 1/3rd 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 and therefore, the impugned judgment and award passed by Tribunal may be modified, awarding just and reasonable compensation towards loss of dependency as also conventional heads.

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 14-05-2011. 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, 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, regarding the submission of the learned counsel appearing for claimants for re-assessment of monthly income between Rs. 6,500/- and Rs. 7,000/-, he submitted that the said submission cannot be accepted for the reason that the claimants themselves have stated that the deceased was earning a sum of Rs. 4,500/- per month. Therefore, the monthly income cannot be re-assessed more than Rs. 4,500/-.

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 Korga Poojary. It is stated in the claim petition that the deceased was aged about 65 years. But, in the P.M. report, the age of the deceased is shown as 80 years. The claimants have not produced any documentary evidence in support of their claim that the deceased was aged about 65 years. As per the ration car of the family of the deceased, the age of the deceased is shown as 77 years in the year 2006. That means, at the time of accident, the deceased aged well over 80 years. The Tribunal, after critical evaluation of the oral and documentary evidence, particularly, the P.M. report and also the ratio card, came to the conclusion that he was aged over 80 years. We accept the same. Further, it is stated that he was a Coolie with rich experience in the field. The accident is of the year 2011. Therefore, we are of the firm view that the monthly income of Rs. 3,000/- assessed by Tribunal is liable to be re-assessed. Considering the age, avocation and also the year of accident, coupled with the rich experience of the deceased in the field, we re-assess the income of the deceased at Rs. 6,000/- per month, to meet the ends of justice. Further, even though there are eight claimants who are legal heirs of deceased, the dependents are only claimant No. 1/wife, claimant Nos. 2 and 4, who are stated to be widowed daughters and claimant No. 8, who is stated to be unmarried daughter of deceased. Therefore, considering the facts and circumstances of the case, we deduct 1/3rd towards personal expenses of the deceased. Accordingly, If 1/3rd (i.e. Rs. 2,000/-) is deducted from Rs. 6,000/- towards his personal and living expenses, the net income would be Rs. 4,000/- per month. Further, for the age of the deceased being 80 years, the proper multiplier applicable is ''5'' 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. 2,40,000/- (i.e. Rs. 4,000/- x 12 x''5'') as against Rs. 1,35,000/- awarded by Tribunal.

Further, the Tribunal has erred in not awarding reasonable compensation towards conventional heads. 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. 8,000/-; Rs. 25,000/- towards loss of estate as against Rs. 8,000/-, Rs. 80,000/- towards loss of love and affection at the rate of Rs. 10,000/- to each claimant as against Rs. 8,000/- and Rs. 25,000/- towards transportation of dead body and funeral and also medical expenses as against Rs. 15,000/- awarded by Tribunal. Thus, the total compensation payable to claimants works out to Rs. 4,70,000/- as against Rs. 1,74,000/- awarded by the Tribunal. There would be enhancement of compensation by a sum of Rs. 2,96,000/-.

Further, 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 14-05-2011. 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 31st December 2012, passed in MVC No. 198/2012, by the Presiding Officer, Fast Track Court, Motor Accident Claims Tribunal, Kundapura, is hereby modified, awarding a sum of Rs. 4,70,000/- as against Rs. 1,74,000/- 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. 2,96,000/- with 9% interest per annum from the date of petition till the date of realization.

The Insurance Company is directed to deposit the enhanced compensation of Rs. 2,96,000/-, 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 five years, renewable by three years, with liberty reserved to her to withdraw the periodical interest.

A sum of Rs. 50,000/- each with proportionate interest shall be invested in the names of Appellant Nos. 2 and 4/widowed daughters of deceased and in the name of Appellant No. 8/unmarried daughter 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 them to withdraw the periodical interest.

Remaining sum of Rs. 46,000/- with proportionate interest shall be released in favour of the appellant Nos. 1, 2, 4 and 8, in equal proportion, immediately.

Office to draw award, accordingly.

Shri. K. Suresh, learned counsel is permitted to file vakalath on behalf of second respondent, within four weeks.