Mahadevamma and Others vs N. Vishwanatha and Others

N.K. Patil, J.—These two appeals respectively by the mother of deceased and wife of deceased are directed against the judgment and award dated 3rd December 2014, passed in MVC No. 4738/2013, by the Judge, Court of Small Causes & XXVI ACMM, Motor Accident Claims Tribunal, Bangalore (SCCH-9), (for short, ''Tribunal'').

The second claimant/mother of deceased, Smt. Mahadevamma has filed an appeal in M.F.A. No. 2298/2015, seeking enhancement of compensation on the ground that the compensation awarded by Tribunal is on the lower side;

The first claimant/wife of deceased, Smt. Mani Meghala P.K. has filed an appeal in M.F.A. No. 1756/2015, seeking enhancement of compensation and also re-apportionment in the compensation on the ground that, the monthly income of the deceased assessed by Tribunal is on the lower side and sought for re-apportionment of the compensation at least in the ratio of 70:30.

On account of the death of the deceased M.S. Shivakumar in the road traffic accident, the wife and mother of the deceased filed the claim petition before the Tribunal, seeking compensation of Rs. 65,00,000/-against the owner and Insurer of the offending vehicle. The said claim petition had come up for consideration before the Tribunal on 3rd December, 2014. 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. 24,00,000/- under different heads, with 6% interest per annum, from the date of petition till the date of payment and apportioned the same between the wife and mother of deceased in the ratio of 50:50. Being aggrieved by the impugned judgment and award passed by Tribunal so far as quantum of compensation awarded by Tribunal, the mother of the deceased has filed M.F.A. No. 2298/2015 and being aggrieved by the quantum and also apportionment of compensation in the ratio of 50:50, the wife of deceased has filed M.F.A. No. 1756/2015, seeking appropriate reliefs as stated supra.

We have heard Shri. P. Mahadeva Swamy, learned counsel appearing for mother of the deceased, Shri. H.N. Keshava Prashanth, learned counsel appearing for Insurer and Shri. Praveen R.J.S. for Shri. G. Papi Reddy, learned counsel appearing for wife of deceased.

Shri. P. Mahadeva Swamy, learned counsel appearing for the mother of the deceased submitted that the Tribunal grossly erred in not awarding reasonable compensation towards loss of dependency and conventional heads and the rate of interest awarded by Tribunal at 6% per annum is on the lower side. To substantiate the said submission, he submitted that the deceased was the only earning member in the family and she has lost him at his young age of 43 years and is deprived of seeing his progress and bright future. He further submits that the deceased was working as a Grade III employee at Hindustan Unilever Limited and getting salary of Rs. 20,000/- per month and to substantiate the same, the claimants have produced Salary Certificate at Ex. P18 and also produced the appointment order, pan card, bank statement and also examined the Accounts Manager of Hindustan Unilever Limited as PW2. In spite of the said oral and documentary evidence, the Tribunal has slipped into an error in assessing the monthly income of the deceased at Rs. 16,000/-, after deducting all the allowances, perks, professional tax, etc. contrary to the law laid down by the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .

Further, he submitted that in the light of the judgment of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , 30% of the income is liable to be added to the income of the deceased towards future prospects, for calculating loss of dependency.

Further, learned counsel appearing for mother of deceased vehemently submitted that the compensation awarded towards conventional heads such as loss of love and affection, loss of estate and also transportation of dead body and funeral expenses is on the lower side and labile to be enhanced, in the light of the judgment of the Hon''ble Apex Court and this Court in host of judgments.

He also submitted that the rate of interest awarded by Tribunal at 6% p.a. is on the lower side as the accident has occurred on 01-07-2013 and in view of the 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.

Regarding apportionment of compensation made by Tribunal at 50% in favour of the mother of deceased and wife of deceased, he submitted that the Tribunal is highly justified in apportioning the compensation in the ratio of 50:50 and interference in the same is uncalled for.

As against this, Shri. Praveen R.J.S. appearing for Shri. G. Papi Reddy, learned counsel appearing for wife of deceased, while adopting and reiterating the submission of the learned counsel appearing for mother of deceased so far as quantum of compensation, vehemently submitted that the Tribunal grossly erred in apportioning the compensation awarded by it in the ratio of 50:50, which is highly unjust and unreasonable, for the simple reason that the mother of the deceased was aged 70 years and she has three more sons to look after her and she is not entirely dependent on the income of the deceased for her livelihood. Whereas the wife of deceased was aged 35 years at the time of accident she has lost the life companion apart from social and financial security. She was entirely dependent on the income of the deceased. All these aspects of the matter have not been properly looked into or considered by Tribunal, at the time of apportioning the compensation between the mother and wife of deceased. Therefore, the apportionment of compensation made by Tribunal at 50% each is highly unreasonable and hence, liable to be modified, by reapportioning the same in the ratio of 30:70, i.e. 30% in favour of the mother of the deceased and 70% in favour of the wife of deceased.

Thus, he sought for modification of the impugned judgment and award passed by Tribunal by enhancing the compensation, re-apportioning the compensation and also enhancing the rate of interest awarded by Tribunal.

As against the said submission of the learned counsel appearing for mother of deceased and wife of deceased, learned counsel appearing for Insurer inter alia contended and sought to substantiate the impugned judgment and award passed by Tribunal, stating that the same is passed after due consideration of the entire material available on file and the compensation awarded by Tribunal towards loss of dependency is just and proper and it does not call for interference.

However, so far as quantum of compensation awarded towards conventional heads and rate of interest awarded by Tribunal at 6% per annum, he fairly submitted that the same may be re-considered in accordance with law.

After taking into consideration the rival contentions of the learned counsel appearing for all the parties, i.e. mother of the deceased, wife of the deceased and also the insurer of the offending vehicle and after going through the impugned judgment and award passed by Tribunal including the original records placed before us, the points that arise for our consideration in these two appeals are:

"1] Whether the quantum of compensation awarded by Tribunal is just and reasonable?

2] Whether the Tribunal is justified in apportioning the compensation between the mother of deceased and wife of deceased in the ratio of 50:50?"

Re-Point 1] : After careful evaluation of the entire material available on file, it emerges that occurrence of accident at about 12:00 Noon on 01-07-2013 and the resultant death of deceased M.S. Shivakumar are not in dispute. It is also not in dispute that the deceased was aged about 43 years, working as Grade III employee at Hindustan Unilever Limited. It is stated that he was earning a sum of Rs. 18,387/- per month. To substantiate the same, the claimants have produced Ex. P18, Ex. P13, pan card, Ex. P14, bank statement, Ex. P15, authorization letter, Ex. P16, appointment order and Ex. P17, office Order. Further, in addition to the same, they have examined the authorized Officer of the employer, one Mr. Praveen Kumar, Accounts Manager, as PW2, who, in clear terms has deposed that the deceased was appointed as Grade III employee in their firm on 23-03-21997 and till his death, he was working in their firm and further deposed that, at the time of his death, the deceased was drawing salary of Rs. 18,387/- per month. Therefore, the oral and documentary evidence cannot be disbelieved for any reason. Accordingly, we accept the same. The Tribunal, after appreciating the oral and documentary evidence available on file, has assessed the income of the deceased at Rs. 16,000/- per month. The same cannot be sustained for the reason that the admissible deductions are only professional tax and income tax, in the light of the judgment of the Honb''le Apex Court and this Court in catena of decision. Therefore, we re-assess the income of the deceased at Rs. 18,387/- per month.

Further, as rightly pointed out by the learned counsel appearing for the mother of deceased and also wife of the deceased, the claimants are entitled to 30% enhancement towards future prospects in the light of the judgment of the Apex Court in Sarla Verma''s case (supra). Accordingly, if 30% (i.e. Rs. 5,516/-), is added to Rs. 18,387/-, the total income comes to Rs. 23,903/- per month. Per annum, it works out to Rs. 2,86,836/-. From this, if we deduct a sum of Rs. 2,400/- towards professional tax, the net annual income works out to Rs. 2,84,436/-. The deceased was married and left behind the wife and mother of deceased as dependents. Therefore, we deduct 1/3rd towards personal and living expenses of the deceased. Accordingly, If 1/3rd (i.e. Rs. 94,812/-) is deducted from Rs. 2,84,436/- towards the personal and living expenses of the deceased, the net income would be Rs. 1,89,624/- per annum. Since the deceased was aged about 43 years, the proper multiplier applicable is ''14'' as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, as rightly adopted by Tribunal. Thus, the compensation towards loss of dependency would work out to Rs. 26,54,736/- (i.e. Rs. 1,89,624/- x ''14'') as against Rs. 23,30,000/- awarded by Tribunal and accordingly it is awarded.

Further, having regard to the facts and circumstances of the case, it is seen that the Tribunal has awarded a total sum of Rs. 70,000/- towards conventional heads, viz. loss of consortium, loss of estate, loss of love and affection and transportation and funeral expenses. The same is on the lower side and liable to be re-determined. In the light of the law laid down by the Hon''ble Apex Court and this Court in host of judgments, we award a sum of Rs. 1,00,000/- towards loss of loss of consortium as against Rs. 15,000/-; Rs. 1,00,000/- towards loss of love and affection, at the rate of Rs. 50,000/- to each claimant as against Rs. 15,000/-; Rs. 25,000/- towards loss of estate as against Rs. 15,000/-awarded by Tribunal and the Tribunal is justified in awarding a sum of Rs. 25,000/- towards transportation of dead body and funeral expenses. Hence, interference in the same is not called for.

Thus, the total compensation works out to 29,04,736/- as against Rs. 24,00,000/- awarded by Tribunal. Accordingly, we answer point No. 1] in the ''Negative'' and enhance the compensation by a sum of Rs. 5,04,736/-.

[Re-point 2] : Regarding the specific submission of the learned counsel appearing for mother of deceased and the wife of deceased, it emerges that, the claimants are none other than the mother and wife of deceased. Mother was aged 70 years and wife was aged 35 years at the time of death of deceased M.S. Shivakumar in the road traffic accident.

As rightly pointed out by the learned counsel appearing for wife of deceased, the mother of deceased has three more sons to look after her and she was not entirely dependent on the income of the deceased. Whereas, the wife aged about 35 years, has lost the life partner, future security and there is total loss of dependency. She was entirely dependent on the income of the deceased. All these aspects of the matter have not been properly gone into or considered by the Tribunal, at the time of apportioning the compensation.

Therefore, considering the totality of the case on hand, facts and circumstances of the case, age and status of the claimants, i.e. mother and wife of deceased and all other relevant aspects, we hereby modify the apportionment ordered by Tribunal in the ratio of 50:50. The same is re-apportioned in the ratio of 30:70, i.e. 30% in favour of the mother of deceased and 70% in favour of the wife of deceased. Accordingly, we answer point No. 2] also in the ''Negative'' and re-apportion the entire compensation as above.

Further, as rightly pointed out by learned counsel appearing for both the mother of deceased and wife of deceased, the rate of interest at 6% per annum awarded by Tribunal is on the lower side, as the accident has occurred on 01-07-2013. 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.

In the light of the facts and circumstances of the case, as stated above, the appeals filed by the mother of the deceased in M.F.A. No. 2298/2015 and the appeal filed by the wife of deceased in M.F.A. No. 1756/2015 are allowed in part.

The impugned judgment and award dated 3rd December 2014, passed in MVC No. 4738/2013, by the Judge, Court of Small Causes & XXVI ACMM, Motor Accident Claims Tribunal, Bangalore (SCCH-9), is hereby modified, awarding total compensation of a sum of Rs. 29,04,736/- as against Rs. 24,00,000/- awarded by Tribunal with interest at 9% per annum on the enhanced compensation of Rs. 5,04,736/-, from the date of petition till the date of realization.

The Bharti Axa General Insurance Company Limited is directed to deposit the enhanced compensation of Rs. 5,04,736/- with interest thereon at 9% per annum, from the date of petition till the date of realization, within three weeks from the date of receipt of copy of the judgment.

The apportionment ordered by Tribunal at 50% each in favour of mother of deceased and wife of deceased is hereby set aside and the same is reapportioned in the ratio of 30:70, in favour of the mother of deceased and wife of deceased respectively, as held in point No. 2] above;

Thus from out of the total compensation of Rs. 29,04,736/-, the mother of deceased is entitled to 30% and wife of the deceased is entitled to remaining 70% of compensation.

From out of 30% of total compensation ordered in favour of mother of deceased, 50% shall be kept in Fixed Deposit in the name of the mother of deceased, in any nationalized or scheduled or Grameena for a period of three years and renewable for another three years with liberty reserved to her to withdraw the periodical interest and the remaining 50% shall be released to her, immediately.

From out of 70% of total compensation ordered in favour of wife of deceased, 75% shall be kept in Fixed Deposit in the name of the wife of deceased, in any nationalized or scheduled or Grameena for a period of ten years and renewable for five years with liberty reserved to her to withdraw the periodical interest and the remaining 25% shall be released to her, immediately.

Office to draw the award accordingly.