Jayanthi Salian and Others vs Prasad Ballal and another

Rathnakala, J. - The appellants are aggrieved by the inadequate compensation awarded by the Additional M.A.C.T., Udupi, in M.V.C. No. 865/2010.

Succinctly stated, the appellants being the widow, minor child, younger brother and parents of one Babu kunder, filed a petition under Section 166 of the Motor Vehicles Act. Their case was on 12-9-2010 at about 2.30 p.m., while the deceased was proceeding on his cycle on National Highway-17 at Brahmavar, on the right side of the road towards Brahmavara city, near Dharmavararn Auditorium, one stage carriage vehicle bearing registration No. KA-20/B-3337 came from the opposite side in a rash and negligent manner and hit the cyclist. On account of the said impact, the deceased sustained fatal injuries and succumbed to the said injuries at he spot itself. He was a fisherman by profession and was earning an average monthly income of Rs. 10,000/- to 15,000/- per month. The respondents being the owner and insurer of the offending vehicle are jointly and severally liable to pay the compensation.

The case was contested by the insurer; the owner of the vehicle remained ex parte. On enquiry, after considering the oral and documentary evidence on record, the Tribunal awarded a compensation of Rs. 5,37,250/- with interest @ 6% per annum.

Sri K. Vishwanatha Poojary, learned counsel appearing for the appellants submits that the deceased, a fisherman by profession was earning Rs. 10,000/- to Rs. 15,000/- per month; for no reason, the evidence of the claimants is disbelieved and his income is taken at Rs. 4,500/- per month, which is inadequate. That apart, the compensation awarded towards conventional heads is also on a lower side having regard to the fact that, the first claimant at the midst of her life is driven to widowhood and the second appellant/minor is deprived of love and parentage of her father. The parents at their old age are left in pain and agony and helpless situation on the untimely death of their son. Hence, the judgment and award of the Tribunal may be modified by enhancing the compensation by reasonable amount.

Sri. D. Vijayakumar, learned counsel for respondent No. 2/insurer in reply submits that, in the absence of any documentary evidence establishing the income of the deceased, rightly the monthly income is calculated at Rs. 4,500/-. Third appellant being the adult male member of the family, is not entitled for compensation and the parents since have another son to look after them, the Tribunal ought to have deducted ⅓rd of the income of the deceased towards his personal expenses, but V4th is deducted while capitalizing the loss of dependency. Having regard to the date and year of the accident, the amount awarded is proper and does not call for interference.

In the light of the above rival submissions and on perusal of the impugned award, it emanates, the claimants before the Tribunal to establish the profession of the deceased have produced an endorsement issued by the owner of the boat. Though this document by itself is not the foolproof income of the deceased, having regard to the date and year of the accident and also the nature of the profession he was holding, it may safely be assumed that the deceased was earning Rs. 5,500/- per month. Since it is a family of five. �th of his income needs to be deducted to wards personal expenses of the deceased. Then the contribution of the deceased to the family comes to Rs. 4,125/- per month, thereby the annual income comes to Rs 49,500/-. The loss of dependency to the family would be annual loss of income multiplied with suitable multiplier appropriate to the age of the deceased (as per judgment of the Apex Court in Sarla Varma and others v. Delhi Transport Corporation and another, reported in 2009 ACJ 1298. The deceased at the relevant time since was aged 41 years, suitable multiplier is ''14''. Multiplying the annual income with the multiplier of ''14'', the compensation towards loss of dependency comes to Rs. 6,93.000/- (Rs. 49,500/- x 14).

Towards loss of consortium first appellant/wife is entitled for Rs. 50,000/- as against Rs. 25,000/- awarded by the Tribunal. The Tribunal has not awarded any amount towards loss of estate. In my considered opinion, Rs. 25,000/- is the adequate amount to compensate the same. Towards conveyance and funeral expenses, Rs. 20,000/- would meet the ends of justice as against Rs. 7,000/- awarded by the Tribunal. Rs. 80,000/-awarded towards loss of love and affection need not be interfered, thereby the total compensation comes to Rs. 8,68,000/- as against Rs. 5,37,250/- awarded by the Tribunal, thereby there will be enhancement of Rs. 3.30,750/-.

Accordingly, the appeal is allowed in part.

The judgment and award dated 23-1-2012 passed in M.V.C. No. 865/2010 by the Principal Civil Judge (Sr. Dn.) and Additional M.A.C.T., Udupi, is hereby modified, by awarding enhanced compensation of Rs. 3,30,750/- with interest @ 6% per annum from the date of petition till realization.

Respondent No. 2/insurer is directed to deposit the enhanced amount with accrued interest before the Tribunal within 3 weeks from the date of receipt of the copy of this judgment and award.

Out of the enhanced compensation, Rs. 1,00,000/- with proportionate interest shall be deposited in the name of appellant No. 1/wife of the deceased in Fixed Deposit in any Nationalized/Scheduled/Grameena Bank for a period of five years, renewable for another five years,with liberty to her to withdraw the interest accrued on it, periodically.

Out of the remaining amount, Rs. 100,000/- with proportionate interest deposited in the name of appellant No. 2/minor daughter of the deceased in Fixed Deposit in any Nationalized/Scheduled/Grameena Bank f or a period of five years, renewable for another five years, with liberty to appellant No. 1 to withdraw the interest accrued on it, periodically till she attains the age of majority.

Further, Rs. 50,000/- each with proportionate interest shall be deposited in the names of appellant Nos. 4 and 5/parents of the deceased in Fixed Deposit in any Nationalized/Scheduled/Grameena Bank for a period of three years, with liberty to them to withdraw the interest accrued on it, periodically.

Remaining amount of Rs. 30,750/- with proportionate interest shall be released in favour of appellant No. 1.

Registry to transmit the case records to the concerned Tribunal forthwith.