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Judgment
K.L. Manjunath, J.—The present appeal is filed by the appellant being not satisfied with the compensation awarded to her by the MACT, Udupi in MVC No 245 of 2005 dated 31-5-2011. The facts leading to this appeal are that: The appellant is the widow of Dr Manohar Shetty and the fourth respondent Kaveri Shetty is the mother of Dr Manohar Shetty. On 20-11-2004, after attending a surgery in a nursing home at. Honnavar, Dr Manohar Shetty was returning to his native place Udupi in his car bearing registration No KA 20 M-6878. When he was on NH 17, on account of rash and negligent driving of NWKRTC bus bearing registration No KA-31 2909, the bus dashed against the car of Dr Shetty causing injuries to him and he later succumbed to the injuries. Therefore, the claim petition was lodged.
It is the case of the appellant-claimant that the deceased Dr Manohar Shetty, after completion of his MBBS and passing MS in general surgery, joined the KLE hospital, Belgaum and worked as a surgeon from 1999 to 2001. Thereafter, he joined a super-specialty course known as MCh in urology at J N Medical College'', Belgaum, which he came out with distinction in May 2004. After May 2004 till 20-11-2004, for about six months, he earned a very good reputation as an urologist in and around Udupi and surrounding taluk headquarters. He was a consultant to several hospitals in Udupi, Honnavar, Hiriadka, Padubidri and Kundapura. According to the appellant-claimant, Dr Shetty was getting a monthly income of Rs. 60 to 70 thousand, as he was charging a sum of Rs. 6,000/-per surgery. He had a good future prospects in his career. Just two years prior to the accident, he had married the appellant-claimant. In the marriage, they have no issues. The fourth respondent is the mother of deceased. Therefore, the claim petition was lodged claiming compensation.
The claim was contested by the owner of the bus and the insurer. The tribunal, after considering the evidence let in by the parties, came to the conclusion that the accident occurred due to the rash and negligent act on the part of the driver of the bus and saddled the liability on the owner of the bus. Considering the fact that the claimant did not produce income tax returns and positive evidence to prove the income of the deceased at the time of accident, the tribunal has done a guesswork and determined the income of the deceased at Rs. 25,000/-;: per month and deducted one-third towards his personal expenditure and by applying the multiplier of 15, assessed the loss of dependency at Rs. 30.00 lakh. A sum of Rs. 40,000/- has been awarded under the conventional heads. Thus, the total compensation awarded by the tribunal in favour of the appellant-claimant is Rs. 30.40 lakh.
Being not satisfied with the compensation awarded by the tribunal, the present appeal is filed.
Heard the learned counsel for the parties.
Sri Maheshkiran Shetty, learned counsel for the appellant, contends that the tribunal has committed an error in not considering the background of the case. According to him, after completion of post-graduation in surgery, the deceased was working as a surgeon at a Belgaum hospital for a period of two years and thereafter, with an intention to become a specialist in urology, he joined the super-specialty course in MCh (Urology) and had completed the course in May 2004. Thereafter, within a short period, he had become a very popular urologist in and around Udupi. Therefore, only on the ground that income tax returns were not filed by the deceased, the tribunal could not have assessed the income of the deceased at Rs. 25,000/- per month. According to the learned counsel for the appellant, had the tribunal taken a judicial notice of the salary payable to an ordinary MBBS doctor if he had been appointed in any government hospital, and if the tribunal has considered the salary payable to a general surgeon considering his/her post-graduation in surgery and also salary payable to a super-specialty doctor, the tribunal would not have assessed the income of such a person at Rs. 25,000/- per month, more particularly in the backdrop of the fact that the deceased was a young energetic promising and upcoming urologist and had a bright future in that area. Therefore, he requested the court to consider the income of the deceased considering all these aspects and determine the total compensation payable to the appellant-claimant. He further contends that the compensation awarded under the conventional heads is also ''too meagre and not commensurate to the directions of the Supreme Court in various decisions.
Per contra, Sri K Nagaraja, learned counsel for fifth respondent-NWKRTC, supports the award of the tribunal, and contends that the tribunal should have fastened the liability only on the insurer, as the vehicle in question, which was a private vehicle and the corporation has taken it on contract basis, insured with the third respondent-insurance company.
Sri O. Mahesh, learned counsel for third respondent-insurance company submits that the appellant-claim ant has not produced any material to show the income of the deceased, and since the deceased had no income, the tribunal is justified in assessing the income of the deceased at Rs. 25,000/- per month. He submits that deduction of one-third of the income towards the personal expenditure of the deceased is also on the higher side, because the fourth respondent-mother of the deceased was not depending on the income of the deceased. Therefore, he requests for dismissal of the appeal.
Having heard the learned counsel for the parties, what would be considered by us in this appeal is as to whether the compensation awarded by the tribunal is required to be enhanced or not?
The admitted facts are that at the time of accident, the deceased was a young upcoming and promising urologist. He had a super-specialty degree in MCh (Urology). During the relevant period, there were; only a few specialists in the area of urology were available. It has come in the evidence that such urology department was there only in Manipal and Mangalore and those departments were attached only to medical colleges of these places. Therefore, doctors were not available in the field of urology to attend patients in and around Udupi, Mangalore and Uttara Kannada districts. The documents produced by the appellant-claimant disclose that the deceased was attending to several hospitals in Udupi, Honnavar, Kundapura, Bhatkal etc. On the date of accident also, the deceased was returning from Honnavar to Udupi after conducting a surgery at Honnavar. This shows that within a span of six months from acquiring the super-specialty degree, the deceased had established a good practice and there was no occasion for the deceased to file income tax returns, because, he died within six months from the date of acquiring the super-specialty degree and before the last date for filing the income tax returns for that particular financial year. Non-filing of income tax returns by the deceased cannot be a ground for this court or the tribunal to hold that the deceased was not getting income. As rightly pointed out by the learned counsel for the appellant, considering the educational qualifications of the deceased, we are of the view that the tribunal was required to assess the salary payable to a super-specialist in any medical college or high-tech hospital and also the tribunal was required to consider the future prospects of the deceased. In this background, we are of the view that the income of the deceased could not have been less than Rs. 60,000/- per month.
In so far as the deduction towards personal expenditure of the deceased is concerned, admittedly the deceased had married two years prior to the accident. The relationship between the deceased and the fourth respondent is also not in dispute. Because of the education of the deceased, if he was not looking after his mother cannot be a ground to hold that the mother cannot be considered as a dependent of the deceased. When he started earning, it is the duty of the son to maintain the mother. Therefore, we are of the opinion that the wife and the mother of the deceased are to be considered dependents. In the circumstance, we are of the view that deduction of one-third towards personal expenditure of the deceased is just and proper.
Having held so, the compensation payable to the appellant-claimant should be as under: When the income of the deceased is taken at Rs. 60,000/- per month and after deducting one-third thereof towards personal expenditure, the loss dependency has to be assessed at Rs. 40,000/- per month or Rs. 4.80 lakh per annum. In view of the judgment of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the tribunal has rightly applied the multiplier of 15 and the same is applied by us also. As such, the loss of dependency would be Rs. 72.00 lakh. In addition to that, on the date of accident, the appellant-claimant was aged 26 years old. At an young age, she lost her husband. We, therefore, inclined to award a sum of Rs. 1.00 lakh towards loss of consortium, considering the educational and social background of the claimant. Similarly, we incline to award a sum of Rs. 50,000/- towards loss of love and affection to the mother and the wife-appellant. We also award a sum of Rs. 50,000/- towards loss of estate and funeral expenses, as the body was required to be shifted from Bhatkal to Udupi. Thus, in all, the appellant and the fourth respondent are entitled to a total compensation of Rs. 74.00 lakh. Out of this, Rs. 14.00 lakh is apportioned in favour of the fourth respondent-mother with interest accrued thereon and the remaining amount is payable to the appellant-widow. The compensation of Rs. 74.00 lakh shall carry interest at the rate of 6% p.a. from the date of claim petition till the date of payment. While depositing the amount, the amount already paid to the claimant and the fourth respondent by the insurance company shall be deducted. The liability to pay the entire compensation is fixed with the third respondent-insurance company, in view of the judgment passed in MFA No 8028 of 2011 dated 23-11-2011. Appeal is accordingly allowed in part.