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Judgment
Aravind Kumar, J.—This is a claimants appeal seeking for enhancement of compensation not being satisfied with the quantum of compensation awarded by the MACT, Davanagere, in MVC No. 30/2008 by its judgment and award dated 28.07.2010. Though matter is listed for Admission, by consent of learned advocates appearing for the parties, it is taken up for final disposal. Smt. Saritha Kulkarni, learned counsel for claimants has made available the certified copies of the exhibits produced and marked before the Tribunal as per Exs. P-1 to P-19. Same is perused by me.
I have heard the arguments of Smt. Saritha Kulkarni, learned counsel appearing for appellants/claimants and Sri Jagadeesh, learned counsel appearing on behalf of Sri B.C. Shivanne Gowda, for respondent No. 3. Notice to respondent Nos. 1, 2, 4 and 5 has been dispensed with vide order dated 26.07.2013.
On account of death of Sri K. Subramani @ Subramanya, his father and mother filed a claim petition u/s 166 of the Motor Vehicles Act, 1988, seeking compensation of Rs. 27,75,000/- with interest. During the pendency of claim petition before the Tribunal father of the deceased is said to have expired and younger brother of deceased has come on record as legal heir of first claimant. On behalf of claimants, mother of deceased entered the witness box as P.W.1 and she had produced 19 documents and got them marked as Exs. P-1 to P-19. Official of the company M/s. Market Probe where deceased was working, was examined as P.W.2. Though P.W.2 tendered her evidence by way of examination-in-chief, she did not appear before the Tribunal for cross examination and as such, Tribunal has rightly expunged her evidence or in other words it has not taken into consideration her oral evidence. Tribunal on appreciation of evidence available on record has awarded a total compensation of Rs. 4,68,000/- under the following heads:
Smt. Saritha Kulkarni, learned counsel appearing for the claimant would contend that compensation awarded by the Tribunal towards loss of dependency'' and also under conventional heads is abysmally on the lower side and she contends that Tribunal ought to have taken into consideration that deceased was holding a permanent job and he was drawing a fixed salary and future prospects being bright, Tribunal ought to have taken into consideration 50% of his salary as his future prospects and awarded compensation towards loss of dependency''. Non-consideration of this vital material evidence available on record according to her has resulted in very less compensation being awarded.
Per contra, Sri Jagadeesh, learned counsel appearing on behalf of Sri B.C. Shivanne Gowda for respondent No. 3 would support the judgment and award passed by the Tribunal and contends that on account of P.W.2 not tendering herself for cross examination Tribunal has rightly ignored her evidence and there being no opportunity to cross-examine P.W.2, by insurer much reliance cannot be placed on the salary certificate produced by the claimant as per Exs. P-13 to P-16 and hence, he prays for dismissal of the appeal.
Having heard the learned Advocates appearing for the parties and on perusal of judgment and award in question as also certified copies of Exs. P-1 to P-19 made available by the learned counsel for claimants during the course of her arguments, it would indicate that deceased was working as "Trainee-Operations" and drawing a salary of Rs. 6,220/- (gross). The appointment letter came to be produced and marked as Ex. P-12, which is dated 01.04.2006. The salary slips Exs. P-13, P-14, P-15 and P-16 relating to deceased would indicate that he was drawing a salary of Rs. 6,220/-. Said salary certificates relates to the period July 2007 to October 2007. Though it was contended by PW1 that as on the date of accident deceased was drawing a salary of Rs. 9,000/- per month, they did not produce the salary slip or certificate issued by the employer for the period immediately preceding the date of accident. In the absence of such evidence Tribunal has rightly taken into consideration the salary slip of deceased produced as per Exs. P-13 to P-16 to determine "loss of dependency" Wherein it has been reflected the salary drawn by the deceased was Rs. 6,220/-. Based on the said figure Tribunal has proceeded to assess the ''loss of dependency''. A perusal of the said salary certificates/slips would indicate that towards professional tax a sum of Rs. 60/- was being deducted every month from his salary. Thus, same requires to be deducted from gross salary of deceased and compensation requires to be computed towards dependency. Since same has not been done, said exercise is being undertaken by this Court. When a sum of Rs. 60/- is deducted from out of the gross salary towards professional tax the gross salary that was drawn by the deceased would Rs. 6,160/-.
This court while considering similar claim of the legal heirs of the deceased namely as to whether 50% of the income of the deceased has to be added has held in the affirmative in the case of Lakshmi Narayana Rao & Another V/s Palani Swamy & Another in MFA No. 1376/2012 disposed of on 02.09.2013 by relying upon the judgments of Apex Court in the case of Sri. K.R. Madhusudhan and Others Vs. The Administrative Officer and Another, Reshma Kumari and Others Vs. Madan Mohan and Another, and in the case of Rajesh and Others Vs. Rajbir Singh and Others, and it came to be held by this Court as under:
In Reshma Kumari''s case referred to supra their Lordships have approved the method of 50% of actual salary be made to the salary income of the deceased towards future prospects where the deceased had a permanent job and was below 50 years vide paragraph 36.
In view of the above discussion,. I am of the considered view that 50% requires to be added to the income of the deceased and compensation towards loss ''of dependency'' requires to be recomputed as under:
Salary of the deceased is Rs. 6,160/- and 50% of the same is Rs. 3,080/- and as such gross salary of deceased would be Rs. 9,240/-. Since deceased was a bachelor, 50% requires to be deducted towards living expenses i.e., a sum of Rs. 4,620/-. Thus loss of income to the dependants would be Rs. 4,620/- per month. Thus, total loss of dependency'' to the claimants would be:
Tribunal has awarded a sum of Rs. 5,000/- under each of the conventional heads. This Court has consistently held that under conventional heads legal heirs of deceased would be entitled to Rs. 10,000/- under each head. As such, claimants would be entitled to an additional compensation of Rs. 20,000/- under the conventional heads and accordingly it is awarded. Thus, total compensation to which the claimant would be entitled by way of an additional compensation would be Rs. 2,92,880/-.
For the reasons aforestated following order is passed:
ORDER
i. Appeal is hereby allowed in part.
ii. Judgment and award passed in MVC No. 30/2008 dated 28.07.2010 is hereby modified and an additional compensation of Rs. 2,92,880/- is hereby awarded to second claimant alone, which shall carry interest @ 6% p.a. from the date of petition till date of payment or deposit, whichever is earlier.
iii. Respondent No. 5 -Insurer shall deposit the additional compensation before.; the jurisdictional Tribunal within an outer limit of 6 weeks from the date of receipt of certified copy of this order.
iv. Additional compensation as awarded by this Court shall be kept in a fixed deposit for a period of 5 years in any nationalized or scheduled bank of the choice of second claimant namely the mother of deceased and she would be entitled to draw periodical interest.