Smt. Gangamma vs The Managing Director

H.S. Kempanna, J.—Though this matter is listed for orders, with the consent of the learned Counsel for the respective parties, as records have also been received, it is taken up for final disposal.

This appeal by the claimant is directed against common judgment and award dated 20.02.2009 passed in MVC No. 7810/2007 by the XII Additional Judge and Member, M.A.C.T., Bangalore, seeking for enhancement of compensation on account of the death of the deceased Sri. B.N. Mohan in a motor accident.

The brief facts of the case are:

The Appellant-claimant is the mother of the deceased B.N. Mohan. According to her the deceased was aged about 25 years, working as a cashier at ABB factory earning a sum of Rs. 6,000/- Apart from being an agriculturist earning some substantial amount from the same He was hale and healthy as on the date of accident.

On 14.02.2006 at about 10.15 p.m., the deceased was proceeding as pedestrian near BMTC bus stop situated at T-Dasarahalli, Bangalore. At that time KSRTC bus bearing No. KA-01-F-7935 driven by its driver at a high speed in a rash and negligent manner came and dashed against him, due to which he sustained fatal injuries and died at the spot. The deceased was her sole bread earner, she was entirely dependant on his income, she has no other source for her survival. She has been subjected to deep mental shock and agony on account of the death of the deceased in the impugned accident Accordingly, on all these grounds, she filed claim petition u/s 166 of the Motor vehicles Act before the Tribunal claiming compensation in a sum of Rs. 15,00.000/- against the Respondents.

After service of notice, the Respondents appeared and contested the claim of the Petitioner. They contended that the accident in question has not taken place on account of the fault of the driver of the Corporation bus They denied the age, occupation and income of the deceased They also contended that the amount claimed as compensation is exorbitant and they are not liable to pay any compensation. Accordingly, they sought for dismissal of the petition.

The Tribunal on the basis of the above pleadings, in all framed three issues.

The claimant in support of her case got examined her another son by name B.N. Gowda, who had filed claim petition in MVC No. 591/07 along with his sister claiming compensation on account of the death of the deceased in this very case. The claimant in all produced 11 documents, which came to be marked as Exhibit P1 to P11. On behalf of the Respondents, they got examined their driver as RW1 and got marked Exhibit P12 through the evidence of PW1.

The Tribunal on considering the oral and documentary evidence on record held that the accident in question has taken place on account of the fault of the driver of the offending bus, accordingly, the claimant has established actionable negligence. Further, the Tribunal looking to the evidence on record determined the income of the deceased at Rs. 3,000/- per month and after deducting 30% of the same towards personal expenses of the deceased, determined the loss of income at Rs. 1,500/- applied the multiplier of 11 and awarded compensation of Rs. 1,98,000/- (sic) loss of dependency on account of the death of the deceased in the impugned accident. It further awarded a sum of Rs. 25,000/- under conventional heads. Thus, in all it awarded a sum of Rs. 2,23,000/- with interest at 6% per annum from the date of petition till realisation. It further saddled the liability or payment of compensation on the Respondent-Corporation.

The Appellant-claimant being aggrieved of the quantum of compensation is in appeal before this Court.

Learned Counsel appearing for the Appellant-claimant submitted that the Tribunal has erred in not taking the proper income of the deceased, though the evidence on record reveals that he was earning Rs. 6,000/- by working as Cashier in ABE factory and it has also not applied proper multiplier to the facts of the case, thereby, the Tribunal has awarded lesser compensation than what the claimant is entitled in the facts of the case, Hence, a case for enhancement is made out.

Per centra, Learned Counsel appearing for the contesting-insurer supported the impugned judgment and award passed by the Tribunal.

Taking the rival submissions into consideration the evidence and the documents placed on record, the point that arises for my consideration is.

Whether the Appellant-claimant has made out a case for enhancement?

Facts are not in dispute. The deceased B.N. Mohan having died in the impugned accident is not disputed before me. According to the claimant, who is the mother of the deceased, the deceased was aged 25 years, working as Cashier in ABB factory earning a sum of Rs. 6,000/- per month. But unfortunately, the claimant has not placed any substantive material in support of the same. Further no attempt has also been made to examine anybody From ABB factory, to establish that the deceased was getting income of Rs. 6,000/- per month. In the alternative, the claimant had put forward her case stating that the deceased was an agriculturist and he was getting substantial income. In support of the same also no substantive material is placed before this Court. In the absence of these two, the Tribunal has taken the income of the deceased at Rs. 3,000/- per month. It is undisputed that the deceased was aged 25 years and even taking to be an agriculturist, having regard to the date of accident his income can be determined at Rs. 3,500/- per month instead of Rs. 3,000/- as determined by the Tribunal. Admittedly, the deceased was Bachelor, the claimant is none other than the mother of the deceased. Therefore, 50% will have to be deducted towards his personal expenses which has been rightly done by the Tribunal Taking 50% of his monthly income of Rs. 3,500/- it comes to Rs. 1,750/- this would be the loss of income to the claimant-mother per month on account of the death of her deceased son in the accident, Since the claim is made by the mother of the deceased her age will have to be taken into consideration for taking proper multiplier. The claimant has claimed that she was 50 years as on the date of accident. However, the Tribunal taking into consideration her age as more than 50 years has ''applied the multiplier 11 and has computed the loss of dependency after deducting 50% towards personal expenses. Since the claimant-mother has stated on oath that she is aged 50 years, the proper multiplier that becomes applicable is 13 as laid down in Sarala Varma''s Case. Therefore taking the loss of dependency per month at Rs. 1,730/- applying the multiplier 13, the total loss of dependency to the claimant comes to Rs. 2,73,000/- as against Rs. 1,98,000/- determined by the Tribunals Further, the Tribunal under the conventional heads has awarded a sum of Rs, 25,000/- However, while awarding the same it has awarded only a sum of Rs. 5,000/- towards transportation, funeral and obsequies ceremony. Therefore, the claimant is entitled to a further sum of Rs. 5,000/- under the said head awarding the same, the claimant would be entitled to Rs. 10,000/- towards transportation, funeral obsequies ceremony as against Rs. 5.000/- awarded by the Tribunal. Thus, the claimant in all would be entitled to total compensation of Rs. 3,03,000/- as against Rs. 2,23,000/- with interest at 6% per annum from the date of petition till realisation. The break up of compensation awarded is as follows:

Towards loss of dependency

Rs. 2,73,000/-

Towards loss of estate

Rs. 10,000/-

Towards loss of love and affection

Rs. 10,000/-

Towards funeral transportation and funeral ceremony

Rs. 10,000/-

Total

Rs. 3,03,000/-

Accordingly, appeal has to succeed in part,

In the result for the foregoing reason, I proceed to pass the following:

ORDER

Appeal is allowed in part.

The impugned judgment and award passed by the Tribunal in MVC. No. 7810/2007 is modified and the Appellant-claimant in the said case is awarded a total compensation of Rs. 3,03,000/-with interest at 6% per annum from the date of petition till realisation as against Rs. 2,23,000/-with interest at 6% per annum from the date of petition till realisation awarded by the Tribunal, The enhanced compensation comes to Rs. 80,000/- with interest at 6% per annum from the date of petition till realisation.

The Respondent-Corporation shall deposit the entire enhanced compensation with interest before the Tribunal within four weeks from the date of receipt of the copy of the judgment and award.

On deposit of the enhanced compensation with interest, 50% with proportionate interest is ordered to be deposited in the name of the Appellant-claimant in any Nationalised/Scheduled Bank far a period of three (3) years renewable by further period of three (3) years. The Appellant is entitled to withdraw the interest accrued on the said deposit periodically. The balance 50% with proportionate interest is ordered to be released in favour of the Appellant-claimant.

Office to draw the award accordingly,