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Judgment
N.K. Patil, J—These two appeals by the claimants and by the New India Assurance Co. Ltd., Insurer of the Lorry respectively, are directed against the same impugned judgment and award dated 07/01/2012, passed in MVC No. 8895/2008, by the XII Additional Small Causes Judge and Member, Motor Accident Claims Tribunal, Bangalore, (for short ''Tribunal'').
The Tribunal by its judgment and award, has awarded a sum of Rs. 5,70,000/- under different heads with interest at 6% per annum from the date of petition till its realization, fixing negligence in the ratio of 70:30 i.e. 70% on the part of the driver of the bus belonging to KSRTC bearing Reg. No. KA.40.F.229 and 30% on the part of the driver of the lorry bearing Reg. No. CRX.9725 and directing the Corporation and the Insurer of the Lorry to deposit the same, as against the claim of the claimants on account of the death of Sri. K.V. Ram Mohan.
It is the case of the claimants that, the quantum of compensation awarded by the Tribunal is inadequate and it requires to be enhanced and whereas, it is the case of the New India Assurance Company Limited, the Insurer of the Lorry bearing Reg. No. CRX.9725 that, 30% negligence fixed by the Tribunal on the part of the driver of the lorry and directing it to indemnify the same cannot be sustained and is liable to be set aside, fixing entire negligence on the part of the driver of the KSRTC bus, on the ground that, chargesheet is filed against the driver of the bus.
In brief, the facts of the case are:
"The claimants are the wife, daughter and parents of the deceased. On account of the death of the deceased Sri. K.V. Ram Mohan, in the road traffic accident, claimants have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation, contending that, on 5.10.2008 at about 5.45 a.m. the driver of the KSRTC bus bearing Reg. No. KA.40.F.229 drove the same on Bangalore-Hindupur road from Bangalore to Hindupur and when it came in front of Palm Grow Estate between Sriramanahalli and Aradeshanahalli, he dashed the said bus against hind portion of a lorry bearing Reg. No. CRX.9725 which was parked on the left side of the said road due to tyre puncture. Due to which, deceased who was traveling in KSRTC bus sustained fatal injuries and died at the spot."
It is the further case of the claimants that, deceased was aged about 37 years, hale and healthy prior to the accident, doing business in the name and style of Sriram Rice Corner at Jayanagar, Bangalore and earning Rs. 2,20,000/- per annum and he was the only earning member in the family. Due to his untimely death, claimants have suffered financial distress and lost his love and affection, apart from mental shock and agony.
The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence, has allowed the claim petition in part, awarding the compensation of Rs. 5,70,000/- under different heads with interest at 6% per annum from the date of petition till its realization, fixing negligence in the ratio of 70:30 i.e. 70% on the part of the driver of the bus belonging to KSRTC bearing Reg. No. KA.40.F.229 and 30% on the part of the driver of the lorry bearing Reg. No. CRX.9725 and directing the Corporation and the Insurer of the Lorry to deposit the same.
Being aggrieved by the said judgment and award, both the claimants and the Insurer of the Lorry have presented these appeals seeking appropriate reliefs as stated supra.
We have heard the learned counsel appearing for the claimants and the learned counsel appearing for Insurer of the Lorry in these appeals.
The submission of learned counsel Smt. Bhanu H.N. for Sri. B. Chandrashekharaiah, appearing for claimants is that, the Tribunal has erred in not awarding reasonable compensation towards loss of dependency and conventional heads and what is awarded is inadequate and it requires to be enhanced reasonably. To substantiate the said submission, she submitted that, the income of the deceased assessed by the Tribunal at Rs. 4,000/- per month for calculating loss of dependency is on the lower side and is liable to be enhanced reasonably, on the ground that, deceased was aged about 37 years, doing rice business and earning Rs. 2,20,000/- per annum and the dependants are his wife, daughter and parents and he was the only member in the family. Therefore, she has submitted that, the income of the deceased may be reassessed reasonably at Rs. 6,000/- to Rs. 6,500/- per month and after deducting 1/4th towards personal and living expenses and applying multiplier of ''15'', reasonable compensation may be awarded towards loss of dependency. Further, she vehemently submitted that, the compensation awarded by the Tribunal towards conventional heads is also on the lower side and is liable to be enhanced reasonably. Therefore, she submitted that the impugned judgment and award is liable to be modified.
Per contra, learned counsel Sri. R. Rajagopalan, appearing for the New India Assurance Co., Ltd., -Insurer of the lorry bearing Reg. No. CRX.9725, inter-alia, submitted that, the Tribunal, has committed an error in fixing 30% negligence on the part of the driver of the lorry and the same is liable to be set aside. To substantiate the said submission, he has submitted that, the Tribunal, in MVC Nos. 8389/2008 and 8390/2008 which are arising out of the same accident, has fixed the entire liability on the part of the driver of the KSRTC bus and directed the Corporation to indemnify the award amount, on the ground that, Police authorities after due investigation have filed chargesheet against the driver of the KSRTC bus and dismissed the claim petitions against the owner and the insurer of the lorry. Further, he submits that 30% negligence fixed by the Tribunal on the part of the driver of the lorry and the direction issued to it to indemnify the said amount cannot be sustained and is liable to be set aside by fixing the entire liability on the apart of the driver of the KSRTC bus and exonerating the Insurer from indemnifying the award amount. Therefore, he submitted that the impugned judgment and award is liable to be modified.
After hearing the learned counsel for the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the points that arise for our consideration are:
"(i) Whether the Tribunal has justified in fixing 30% negligence on the part of the driver of the Lorry bearing Reg. No. CRX 9725 and directing the Insurer to indemnify the same?
(ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"
Re. Point No. 1:
The occurrence of the accident and the death of the deceased are not in dispute. It is also not in dispute that two vehicle were involved in the accident viz., KSRTC bus bearing Reg. No. KA.40.F.229 belonging to the Corporation and the lorry bearing Reg. No. CRX 9725 which was insured with the Insurer-New India Assurance Co., Ltd. Further, as rightly pointed out by the learned counsel Sri. R Rajagopalan, appearing for the Insurer, the Tribunal has exonerated the Insurer from its liability in M.V.C. Nos. 8389/2008 and 8390/2008 which are arising out of the same accident by fixing entire negligence on the part of the Corporation. To prove the same, learned counsel appearing for Insurer has filed I.A. No. 2/2012 along with those documents which was allowed by a separate order. Further, learned counsel appearing for Insurer has submitted that, in fact, the jurisdictional police authorities, after due investigation have filed a chargesheet against the driver of the bus. But this aspect of the matter has not been considered by the Tribunal and therefore, the reasons given by the Tribunal in that regard is perverse in nature and contrary to the oral and documentary evidence available on file and therefore, it is liable to be set aside. We find some substance in the said submission after careful perusal of the judgment passed by the Tribunal in M.V.C. Nos. 8389/2008 and 8390/2008, for the reason that, in fact, the Tribunal, has fixed entire liability on the part of the driver of the bus belonging to the Corporation and directed the Corporation to indemnify the award amount and dismissed the claim petitions against the owner and insurer of the lorry. Further, it emerges from the records available on file that, the jurisdictional police authorities, after due investigation have filed a chargesheet against the driver of the bus. Therefore, the judgment and award passed by the Tribunal so far as it relates to fixing 30% negligent on the part of the driver of the Lorry and issuing a direction to the Insurer of the lorry to indemnify the same cannot be sustained and is liable to be modified, holding that, the Corporation is liable to indemnify the entire award amount and by exonerating the Insurer of the lorry from its liability and accordingly, we answer this point.
Re. Point No. 2:
It is not in dispute that, claimants are the wife, daughter and parents of the deceased. It is the case of the claimants that, deceased was aged about 37 years, hale and healthy prior to the accident, doing business in the name and style of Srirama Rice Corner at Jayanagar, Bangalore and the only earning member in the family and what ever amount he earned from his business, he used to spend the same on the welfare of the family as his family was completely depending on his income. Further, it emerges that, the Tribunal, has assessed the income of the deceased at Rs. 4,000/- per month which is on the lower side and it needs to be enhanced reasonably. Having regard to the age, occupation and year of the accident, we re-assess the income of the deceased at Rs. 6,000/- per month instead of Rs. 4,000/- per month assessed by the Tribunal. Out of which, 1/4th should be deducted towards the personal and living expenses of the deceased in the light of the judgment of the Apex Court in 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 since there are four claimants, as rightly done by the Tribunal. Out of Rs. 6,000/- per month, if 1/4th Rs. 1,500/-) is deducted towards the personal expenses of the deceased, his net income per month comes to Rs. 4,500/- and by accepting the multiplier of ''15'' adopted by the Tribunal since the deceased was aged about 37 years as just and proper, we re-determine the loss of dependency at Rs. 8,10,000/- instead of Rs. 5,40,000/- awarded by the Tribunal and accordingly, it is awarded.
Having regard to the facts and circumstances of the case as referred above and following the judgment of the Apex Court and this Court, we award a sum of Rs. 50,000/- towards loss of consortium, Rs. 40,000/- towards loss of love and affection at the rate of Rs. 10,000/- each to the claimant Nos. 1 to 4, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses. In all, the claimants are entitled to the total compensation of Rs. 9,50,000/- instead of Rs. 5,70,000/- awarded by the Tribunal. There would be an enhancement of Rs. 3,80,000/- with interest at 6% p.a., from the date of petition till its realization (excluding interest for the delayed period of 601 days in filing the appeal).
For the foregoing reasons, the appeal filed by the claimants and the appeal filed by the Insurer of the Lorry is allowed in part.
The impugned judgment and award dated 07/01/2012, passed in MVC No. 8895/2008, by the XII Additional Small Causes Judge and Member, Motor Accident Claims Tribunal, Bangalore, is hereby modified, holding that the Corporation is liable to indemnify the entire award amount and by exonerating the Insurer of the Lorry bearing Reg. No. CRX.9725 from its liability and by awarding a sum of Rs. 3,80,000/- with interest at 6% p.a., from the date of petition till its realization, (excluding interest for the delayed period of 601 days in filing the appeal) in addition to the compensation awarded by the Tribunal.
The Corporation is directed to deposit the entire compensation amount, after deducting whatever amount paid by it, with interest at 6% p.a., from the date of petition till its realization (excluding interest for the delayed period of 601 days in filing the appeal), within three weeks from the date of receipt of the copy of this judgment, after.
Immediately on deposit by the Corporation, out of the enhanced compensation of Rs. 3,80,000/-, a sum of Rs. 1,00,000/- with proportionate interest shall be deposited in Fixed Deposit in the name of the claimant No. 1, wife of the deceased, in any Nationalized or Scheduled or Grameena Bank, for a period of 10 years and renewable by another 10 years with liberty reserved to her to withdraw the interest accrued on it, periodically.
A sum of Rs. 1,00,000/- with proportionate interest shall be deposited in Fixed Deposit in the name of the claimant No. 2, daughter of the deceased, in any Nationalized or Scheduled or Grameena Bank, for a period of 05 years and renewable by another 05 years with liberty reserved to her to withdraw the interest accrued on it, periodically.
A sum of Rs. 50,000/- with proportionate interest shall be deposited in Fixed Deposit in the name of the claimant No. 4, mother of the deceased, in any Nationalized or Scheduled or Grameena Bank, for a period of 05 years and renewable by another 05 years with liberty reserved to her to withdraw the interest accrued on it, periodically.
The remaining sum of Rs. 130,000/- with proportionate interest shall be released in favour of claimant Nos. 1,3 and 4 in equal proportion.
The amount deposited by the Insurer of the Lorry in M.F.A. No. 7793/2012 shall be refunded to the Insurer immediately.
Draw the award, accordingly.
In view of disposal of main matter, the relief sought by the Insurer in I.A. No. 3/2012 in M.F.A. No. 7793/2012 does not survive for consideration. Hence, it is disposed off as having become infructuous.