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Judgment
Anand Byrareddy, J.—Heard the learned counsel for appellants and learned counsel for respondent Insurance Company.
The appellants are the widow and minor child of the deceased. The mother, who was also claimant, died during the pendency of the claim petition and has been deleted from the array of the parties.
It is the case of appellants that on 19.05.2010 the deceased Kashappa, husband of appellant No. 1 was travelling in a Tata Ace vehicle bearing Registration No. KA 24/5757 along with the others, near Yekkeri village they had stopped the vehicle at a temple and, Kashappa and others were standing behind the Tata Ace vehicle after having alighted from it and were talking amongst themselves. At about 6.30 p.m. when a Tata Sumo vehicle coming from Munavalli side had dashed against Kashappa and others, who were standing behind the vehicle, as a result of which Kashappa had suffered serious head injuries. Then he was immediately rushed to the hospital in Saundatti. He had succumbed to the injuries.
It is in this background that the appellants claim compensation on the basis that Kashappa owned agricultural land on the Banks of the Malaprabha river, and therefore, it was irrigated land and he was earning Rs. 5,000/- per month from agriculture and he was also carrying on an Ice Cream business and earning another sum of Rs. 5,000/- per month from the same. That on account of the untimely death of Kashappa, the appellants had now no source of livelihood and they were not able to carry on agricultural operations as before unless they depend on other servants, and hence, claimed compensation under different heads in a sum exceeding Rs. 20,00,000/-.
However, after appreciating the evidence tendered by the parties, and the claim petition which was contested by the Insurance Company denying the monthly income projected, in the absence of any evidence and also denying that there was any negligence on the part of the vehicle insured by the respondent herein and that the accident had occurred because of the carelessness of the deceased standing on the road in the path of moving vehicles, and therefore, had denied the liability. The Tribunal had framed the following points for consideration:
"1. Whether the petitioners prove that the deceased Kashappa Hanamantappa Birajanavar has died in a road traffic accident that occurred on 19.05.2010 at about 18.30 hours on Munavalli -Nargund road, near Sri. Karemmadevi temple within the village limits of Yekkeri on account of rash and negligent driving of Tata Sumo vehicle bearing Registration No. MH-12/BG-5409 by its driver?
Whether the petitioners are entitled for any compensation? If so, for what amount and from whom?
What order/award?"
The Tribunal had answered the same in the affirmative and awarded various sums towards loss of dependency, loss of estate, loss of consortium, funeral ceremony and transportation of the dead body. And had awarded a total sum of Rs. 5,20,000/-, with interest thereon.
It is this which is questioned by the appellants seeking enhancement of compensation.
The learned counsel for the appellants contends that the appellants could not produce any material to demonstrate that Kashappa was, in fact, earning Rs. 10,000/- per month. He was, however, an able bodied man and was certainly the only earning member of the family and he was aged about 30 years at the time of the accident and was survived by his widow and a young child, and therefore, the Tribunal having adopted a monthly income of Rs. 3,600/- was on the lower side.
The learned counsel for appellants would contend that even if there was no evidence placed on record, except a copy of the Record of Rights, to indicate that there was some land available to the appellants'' family, which could no longer be cultivated as profitably as it could be, during the life time of Kashappa, the fact remains that in similar cases where there was no proof of income of victims of road accidents, the Lok Adalat as well as this Court have uniformly adopted Rs. 5,500/- and more, in respect of cases during the relevant period, and hence, the counsel would pray that the monthly income be taken atleast at Rs. 5,500/-, instead of at Rs. 3,600/- per month.
Further, it is pointed out that the loss of estate is taken at Rs. 10,000/-, which is a paltry sum. The accident was of the year 2010 and that it should be increased substantially.
Loss of consortium is again taken at Rs. 10,000/-, which is very much on the lower side and the love and affection that the child of Kashappa has lost, is not considered at all. The loss of consortium of a young wife is substantial and that no value can be placed on it in terms of money. The amount awarded is paltry and requires to be substantially enhanced.
Insofar as the funeral expenses are concerned, the Tribunal had thought it fit to award Rs. 5,000/-, in the light of more than one judgment of the Apex Court, where it is held that to perform the funeral ceremony in these days, a minimum of Rs. 25,000/- ought to be awarded and that the same ought to be granted in the present case on hand.
While the learned counsel would seek to place reliance on Munna Lal Jain and Others Vs. Vipin Kumar Sharma and Others to contend that though the earlier law insofar as the loss towards future prospects in respect of self employed persons dying in road accidents, was fixed at 30% in Santosh Devi Vs. National Insurance Company Ltd. and Others, . In Munna Lal Jain''s case, the Supreme Court had held that a Three Judge Bench of the Supreme Court had opined that it should not be at 30% and that in case if the deceased victim is less than 40 years, it should be taken at 50% and in respect of persons over and above 40 years, it could be taken at 30% and the learned counsel would submit that this additional head of compensation be granted in the present case as well, since the deceased was 30 years, the additional income of 50% should be taken into account in awarding compensation. While the learned counsel appearing for the Insurance Company would vehemently oppose any such consideration and would point out that the compensation amount depends on the facts and circumstances and the evidence tendered in each case. Admittedly there is no evidence tendered as regards the income that the deceased was earning. Therefore, even adoption of Rs. 3,600/- was a speculative measure and to add future prospects to such a speculative sum would be compounding the speculation and that would lead to an imbalance. He would hence oppose any such conferment of benefit without there being any evidence in that regard.
While she would also submit that insofar as the claims towards loss of estate and loss of consortium are concerned, as there is no measure fixed in this regard the Tribunal having exercised its discretion is reasonable and ought not to be varied.
In the light of these contentions and the material on record, it is not in dispute that the victim had died as a result of the motor accident and that he was a young man of 30, though there is no evidence of his income, in view of this Court having consistently adopted a measure of Rs. 5,500/- as the monthly income of such persons in similar cases to adopt the same, and therefore, if loss of dependency is calculated on the basis that the monthly income of the deceased was Rs. 5,500/-, instead of Rs. 3,600/-, the appellant would be entitled to compensation of Rs. 7,48,000/- under the head ''loss of dependency'' instead of Rs. 4,89,600/-.
Loss of estate awarded at Rs. 10,000/- is on the lower side. We deem it fit to enhance it by a further sum of Rs. 10,000/-. Loss of consortium is awarded at Rs. 10,000/-. The appellant No. 1 was a young woman, who had lost her husband and appellant No. 2 is a minor child of the victim and both stand to lose. The appellant No. 1, being awarded Rs. 10,000/- towards loss of consortium and the child being given no compensation for loss of love and affection is unfair and we deem it fit to award a sum of Rs. 25,000/- towards loss of love and affection by the child. The appellant is entitled to a further sum of Rs. 25,000/- towards loss of consortium.
As far as funeral expenses are concerned, as rightly contended by the learned counsel for the appellant Rs. 5,000/- is on the lower side and it should be increased atleast to a nominal sum of Rs. 25,000/-. Therefore, the appellants are entitled to an additional sum of Rs. 20,000/-.
As far as loss of future prospects is concerned, as laid down by the Supreme Court in Rajesh and Others Vs. Rajbir Singh and Others, , a Three Judge Bench has held that in case of self-employed persons if the deceased victim is below 40 years there must be addition of 50% to the actual income of the deceased while computing future prospects, in the following:
"8. Since, the Court in Santosh Devi''s case actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma case and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
However, that having been followed by yet another Three Judge Bench judgment in Munna Lal Jain and another versus Vipin Kumar Sharma and Others, Civil Appeal No. 4497 of 2015, dated 15.05.2015, whether the same could be mechanically applied is the question. Since there was no evidence of the income at all, the amount adopted at Rs. 5,500/- is on a tentative basis and in order to maintain consistency in the award of compensation, this also cannot be mechanically applied in computing loss of future prospects. It would, however, be reasonable if it is restricted to 30% of the income, which would come to Rs. 1,650/- per month. Hence, 30% of the loss of dependency would be Rs. 2,94,000/-. Hence, the appellants are entitled to an additional compensation of Rs. 5,62,800/- in addition to what has been awarded by the Tribunal, which would carry interest at 6% per annum from the date of claim till the date of payment. The apportionment of the compensation amount shall be in terms of the order of the Tribunal.
Since this Court had condoned the delay of 240 days in filing the appeal, on the condition that interest shall not be claimed for the relevant period, the interest payable shall be reduced to that extent corresponding to the number of days'' delay in filing the appeal.