KAREVVA W/O SHIVAPPA NAIK vs BASAVARAJ SHIVAPPA NAIK

This appeal is by the mother and sisters of the deceased Balappa Shivappa Naik challenging the judgment and order dated 13.03.2014 passed by the IV Addl. District and Sessions Judge and Member, Motor Accident Claims Tribunal-V, Belgaum (''Tribunal'' for short), in M.V.C.No.1470/2010.

Briefly stated the facts are, the deceased Balappa Shivappa Naik while travelling in a Tempo Trax bearing Reg.No.KA-31-M-1990 met with the motor vehicle accident; the driver of the said vehicle drove the same with high speed in a rash and negligent manner and caused the accident. Thus, the claimants approached the Tribunal seeking compensation for the death of the deceased alleging actionable negligence on the driver of the offending vehicle duly insured with the insurer/respondent No.2 herein. Respondent No.3 herein had also filed a claim petition in MVC No.1684/2010 before the Tribunal contending herself as the widow of the deceased and sought for compensation. Both the cases were clubbed together and common judgment was passed by the Tribunal awarding the total compensation of Rs.6,63,000/- with interest at the rate of 6% per annum from the date of petition till the date of realization. Aggrieved by the same, the claimants in MVC No.1470/2010 are in appeal seeking enhancement of compensation. The appeal filed by the respondent No.3 herein in MFA No.102631/2014 was

dismissed by this Court on 14.10.2015 for nonprosecution. However, the respondent No.3 got impleaded herself in this proceeding as respondent No.3.

Sri. Sanjay S. Katageri, learned counsel appearing for the claimants/appellants would contend that the Tribunal grossly erred in awarding a meager compensation ignoring the material evidence on record. The monthly income of the deceased determined by the Tribunal at Rs.4,500/- is on the lower side compared to the date of the accident and age of the deceased. The learned counsel would contend that the compensation awarded under the different heads is also meager and the same requires to be substantially enhanced, in the light of the judgment of the Hon''ble Apex Court in the case of ''RAJESH AND OTHERS vs. RAJBIR SINGH AND OTHERS'' reported in 2013 ACJ 1403. He further contends that the Tribunal erred in deducting 1/3rd of the income towards personal and living expenses of the deceased instead of 1/4, since there were 4 dependents. The said deduction is contrary to the principles of law enunciated by the Hon''ble Apex Court in the case of

''SARLA VERMA AND OTHERS vs. DELHI TRANSPORT CORPORATION AND ANOTHER'', reported in [2009] 6 SCC 121. The arguments advanced at the hands of the learned counsel is restricted to the quantum of compensation. Thus, he seeks for enhancement of total compensation under all the heads.

Per contra, Sri. G.N. Raichur, learned counsel appearing for the insurer/respondent No.2 supporting the impugned judgment and order would contend that no cogent evidence was placed to establish the factum of the employment and income of the deceased, in such circumstances, the Tribunal was justified in determining monthly income of the deceased at Rs.4,500/-. Interse dispute between the appellants and respondent No.3 indicates that respondent No.3 was not legally wedded wife of the deceased, as such she cannot claim as dependent of the deceased. The deduction of 1/3rd towards personal and living expenses of the deceased is justifiable, considering the dependents of the deceased as three being mother and two sisters. Learned counsel would further

contend that the compensation awarded by the Tribunal under the different heads is just, reasonable and equitable and the same do not warrant interference by this Court.

Sri. B. Sharanabasawa, learned counsel appearing for the respondent No.3 would contend that she was legally wedded wife of the deceased, it is only in order to deny her rights and benefits of the compensation, the appellants herein had disputed her marriage with the deceased. The same being considered by the Tribunal and after profused analysis of the material on record, the finding of fact is recorded that the respondent No.3 is legally wedded wife of the deceased and she is also entitled for the compensation along with the appellants. Thus, learned counsel supports the contentions advanced at the hands of the learned counsel appearing for the appellants in much as the enhancement of compensation.

Having heard the learned counsel for the parties and perusing the material on record, it is evidenced that the appellants herein are the mother and minor sisters of the deceased, whereas the respondent No.3 is the widow of the

deceased. The income of the deceased was determined notionally at Rs.4,500/- by the Tribunal. However, considering the date of the accident i.e.16.5.2010 and age of the deceased as 20 years, this Court is of the considered opinion that it would be appropriate to re-determine the monthly income of the deceased at Rs.5,500/- to reckon the loss of dependency. Considering the dependents as 4, appropriate deduction would be 1/4, in the light of the judgment of the Hon''ble Apex Court in the case of Sarla Verma (supra). Applying the same with the multiplier of 18, the loss of dependency works out to Rs.8,91,000/- (Rs.5,500/- x 12 x 18 - 1/4).

It is apparent that the compensation awarded under the other heads is abysmally low. Applying the dictum of the Hon''ble Apex Court in the case of Rajesh(supra), it would be reasonable to award a sum of Rs.1,00,000/- to the respondent No.3 towards loss of consortium; Rs.1,00,000/- towards loss of love and affection to the appellants; Rs.25,000/- towards transportation of dead body and funeral expenses and Rs.10,000/- towards loss

of estate. Thus, the total compensation works out as under:

Sl. No. Heads Amount

Loss of dependency Rs.8,91,000/-

Loss of love and affection Rs.1,00,000/-

4 Transportation of dead body and funeral expenses Rs.25,000/-

Loss of estate Rs.10,000/-

Total Rs.11,26,000/-

The claimants shall be entitled to total compensation of Rs.11,26,000/- as against Rs.6,63,000/- awarded by the Tribunal, which shall carry interest at the rate of 6% per annum from the date of petition till the date of payment. The total compensation shall be apportioned between the appellants and respondent No.3 in terms of the order of the Tribunal in the ratio of 50:50.

The appeal stands allowed to the extent indicated above.