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Judgment
Ravi Malimath
Aggrieved by the judgment and award dated 31.01.2009 passed by the Civil Judge (Sr. Dn.) & CM & Addl. Motor Accident Claims Tribunal, Kolar in M.V.C.No.134/2004, the insurance company has filed the present appeal questioning the quantum of award.
The learned counsel for the appellant/insurance company contends that the sum awarded under the hand lose of dependency is excessive. He contends that the Tribunal has erroneously taken the monthly income at Rs. 10,417/- notwithstanding its own finding that the income of the deceased is depreciating. On the other heads also, excessive amounts have been awarded.
The respondents are served by way of substituted service and have remained unrepresented. The Tribunal considered Ex.P18, P19 and P20 namely, the income tax returns to arrive at the income of the deceased so also the profit and loss account for the year ended 31.03.1999 in which the profit after deductions was shown as Rs. 1,19,096/- was also considered. The accident took place on 16.12.2003. Under these circumstances, the trial Court was of the view that even in the background of the income tax documents produced, the monthly income could be assessed at a sum of Rs. 10,417/- and after deducting 1/3rd of the income towards his personal expenses, a sum of Rs.83,335/- p.a. was worked out. I do not find any error committed by the Tribunal in arriving at the said conclusion. The figures arrived at, are based on the material in specific to Ex.P18, Ex.P19 and Ex.20. The contention of the appellant/insurance company that the figures have been arrived randomly by the Tribunal is misconceived. The figures have been arrived at after due consideration of income tax returns end materiel available. The Tribunal has awarded the following :
1 Loss of dependency
Rs. 11,66,704/-
2 Funeral expenses and obsequies
Rs. 10,000/-
3 Loss of love and affection
Rs. 10,000/-
4 Loss of consortium
Rs. 10,000/-
5 Loss of estate
Rs. 10.000/-
Total
Rs. 12,06,704/-
Rounded off
Rs. 12,07,000/-
It terms of Order 41 Rule 33 "the appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees In cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.
Provided that the Appellate Court shall not make any order u/s 35A, in pursuance of any objection on which the Court from whose decree, the appeal is preferred has omitted or refused to make such order.
Hence, I am of the considered view that the amount awarded under the heads of loss of love and affection and loss of consortium requires to be enhanced. The amount awarded under these two heads are highly inadequate and the claimants are entitled for a higher amount.
The deceased was aged 38 years. He has left behind his wife end two minor children aged nine and six years. A sum of Rs. 10,000/- awarded by the Tribunal towards tots of love and affection is inadequate. The said amount requires to be enhanced by a further sum of Rs. 50,000/-. A sum of Rs. 10,000/- has been awarded towards loss of consortium. The same is enhanced by a further sum of Rs.40,000/-. Under these circumstances, while dismissing the appeal of the insurance company, the amount of compensation awarded to the claimants has been enhanced by a further sum of Rs.90,000/- as indicated herein above.
In view of the fact that all the respondents are served through paper publication have remained unrepresented, the Registry is directed to send a certified copy of this order to respondent No.3 Smt. Vandana Bhat.