Shivamma vs M.S. Rajendra

N.K. Patil, J.—Though this matter is posted today for orders, with the consent of learned counsel appearing for both the parties, the same is taken up for final disposal.

This appeal by the appellants-claimants is directed against the impugned judgment and award dated 19/03/2013 passed in MVC No. 1101/2011, by the X Additional Small Causes Judge and 35th ACMM and Motor Accident Claims Tribunal, Bangalore (SCCH-16), (hereinafter referred to as '' Tribunal'' for short), for enhancement of compensation., on the ground that, a sum of Rs. 3,69,000/- awarded by the Tribunal under different heads with interest at 8% per annum from the date of petition till payment, as against the claim of Rs. 20,00,000/- on account of the death of the deceased Sri. Thippeshappa, in the road traffic accident is inadequate.

In brief, the facts of the case are:

"The appellants are the wife and children of the deceased. They have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents, on account of the death of the deceased in the road traffic accident, contending that, on 22.10.2010 at about 9.20 p.m. deceased was going by walk in front of Sagar Hotel, K.R. Road, Bangalore, at that time, the rider of the motor cycle bearing Reg. No.KA.04.EM.5031 came from behind with high speed in a rash and negligent manner and dashed against the deceased. Due to which, deceased fell down and sustained grievous injuries to head, waist and legs. Immediately, he was taken to KIMS hospital, Bangalore, where he was given first aid, then shifted to NIMHANS Bangalore for treatment of head injuries and then he was shifted to ESIC hospital Bangalore, for further treatment. But inspite of giving best and continuous treatment, he died on 13.11.2010 on account of the injuries caused in the accident." 4. It is the further case of the appellants that, deceased was aged about 55 years, hale and healthy prior to the accident and working as a Security Guard and earning Rs. 6,000/- per month and looking after the welfare of the family by contributing his entire earnings to the family. Due to his untimely death, appellants have suffered financial loss as they have lost their bread earner, apart from mental shock and agony.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of Rs. 3,69,000/- under different heads with interest at 8% p.a., from the date of petition till its payment.

Being dis- satisfied with the quantum of compensation awarded by the Tribunal, the appellants have presented this appeal, for enhancement of compensation.

The submission of the learned counsel appearing for the appellants, at the outset is that, the Tribunal has erred in not accepting the salary of the deceased as Rs. 6,000/- per month as he was working as a Security Guard and the only earning member in the family and dependants are his wife and children who are entirely depending on his income. Further he submitted that the proper multiplier applicable is ''11'' as he was aged about 55 years instead of ''9'' adopted by the Tribunal. He further submits that, the Tribunal has erred in not awarding reasonable compensation towards conventional heads and what is awarded is on the lower side and is liable to be enhanced reasonably. Therefore, he submitted that the impugned judgment and award is liable to be modified.

As against this, learned counsel appearing for the Insurer tried to substantiate that the impugned judgment and award passed by the Tribunal is just and proper and after due appreciation of the oral and documentary evidence available on file. He further submits that, except producing the salary certificate, appellants have not proved his income and that the Tribunal has justified in assessing the age of the deceased on the basis of the Discharge summary and therefore, there is no substance in the submission of the learned counsel appearing for appellant that deceased was aged about 55 years. Therefore, interference by this Court is not called for.

After hearing the learned counsel appearing for both the parties, after perusal of the grounds urged in the memorandum of appeal and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:

"Whether the compensation awarded by the Tribunal is just and reasonable?" 10. The occurrence of the accident and the resultant death of the deceased are not in dispute. As per Ex. P10-P.M. Report, deceased was aged about 55 years and we accept the same and re-assess his age as 55 years instead of 60 years as assessed by the Tribunal. It is seen that, as per Ex. P17-alary certificate, deceased was drawing the salary of Rs. 6,000/- per month by working as Security Guard and we accept the same and re-assess his income at Rs. 6,000/- per month instead of Rs. 4,500/- assessed by the Tribunal. Out of which, if 1/3rd ( Rs. 2,000/-) is deducted towards the personal and living expenses of the deceased, his net income comes to Rs. 4,000/- per month. The proper multiplier applicable is ''11'' since deceased was aged about 55 years as rightly pointed out by learned counsel appearing for appellants instead of ''9'' adopted by the Tribunal. Therefore, we re-determine the loss of dependency at Rs. 5,28,000/- ( Rs. 4,000/- x 12 x 11) instead of Rs. 3,24,000/- as awarded by the Tribunal and accordingly, it is awarded.

Having regard to the facts and circumstances of the case as referred above and since the appellant No. 1 has lost her life partner and children are deprived of the love and affection and guidance of their father and in the light of the law laid down by the Apex Court and this Court in catena of judgments, we award a sum of Rs. 1,00,000/- towards loss of consortium, Rs. 30,000/- towards loss of love and affection at the rate of Rs. 10,000/- to each of the appellant Nos. 1 to 3, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses. In all, the appellants are entitled to a total compensation of Rs. 7,08,000/- instead of Rs. 3,69,000/- as awarded by the Tribunal. There would be an enhancement of Rs. 3,39,000/- with interest at 8% p.a., from the date of petition till its realization.

For the foregoing reasons, the appeal filed by the appellants is allowed in part. The impugned judgment and award dated 19/03/2013 passed in MVC No. 1101/2011, by the X Additional Small Causes Judge and 35th ACMM, Motor Accident Claims Tribunal, Bangalore (SCCH-16), is hereby modified, awarding a sum of Rs. 3,39,000/- with interest at 8% p.a., from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.

The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 3,39,000/- with interest at 8% p.a., from the date of petition till the date of realization, within a period of three weeks from the date of receipt of a copy of this judgment.

Immediately on deposit by the Insurer, out of the enhanced compensation of Rs. 3,39,000/-, a sum of Rs. 2,00,000/- with proportionate interest shall be invested in the Fixed Deposit, in the name of the appellant No. 1, wife of the deceased, in any Nationalized or Scheduled or Grameena Bank, for a period of 10 years and renewable by another 10 years, with liberty reserved to the appellant No. 1 to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 1,39,000/- with proportionate interest shall be released in favour of appellant Nos. 1 to 3 in equal proportion immediately.

Draw the award, accordingly.