AI Structured Summary
Not yet generated for this judgment
Judgment
H.S. Kempanna, J.—Though this matter is listed for admission with consent of the learned Counsel for the respective parties and as the records have also been received, it is taken up for final disposal.
This appeal is by the claimants seeking for enhancement of compensation on account of the death of the deceased Mariyappa in a motor accident.
For the take of convenience, the parties in this appeal would be referred to by their rankings as they are arrayed in the claim petition before the Tribunal
The brief facts of the case are:
The Appellants/claimants are the wife, son, daughter and parents of the deceased Mariyappa. According to them, the deceased Mariyappa was aged about 48 years, working as Jamedhar in Vidhana Soudha, drawing salary of Rs. 11,430/- per month. He was hale and healthy as on the date of the accident.
On 16.04.2007 at about 2.45 p.m. when deceased was travelling in the tractor bearing Reg. No. KA-02/T-2161 infront of CM Hotel situated on Kunigal -Bangalore Road, a bus bearing No. Ka.52-686 driven by its driver at a high speed in a rash and negligent manner came and dashed against the tractor from its behind, due to which the deceased fell down and was ran over by the bus, on account of which he sustained severe injuries and succumbed to the same in the hospital while undergoing treatment, The deceased was their sole bread earner. They were entirely depending on his income for their survival. They have no other source of income. On account of untimely death of the deceased in the accident, they have been subjected to deep mental shock and agony. Hence, on all these grounds they filed the claim petition u/s 166 of M.V. Act against the Respondents claiming compensation in a sum of Rs. 18,00,000/-.
After service of notice, the Respondents, who are the Insurer and owner appeared and contested the claim of the Appellants/claimants. It was contended that the accident in question did not take place on account of the fault of the driver of the offending bus. On the other hand, it took place due to the negligence of the driver of the tractor in which the deceased was proceeding. Insurer contended that the driver of the offending bus did not possess any valid and effective driving licence to drive the offending vehicle at the time of accident, as such there is breach of terms and conditions of the policy. They also denied the age, occupation and income of the deceased. Hence, on all these grounds they contended that they are not liable to pay any compensation, accordingly sought for dismissal of the claim petition.
On the basis of the above pleadings, the Tribunal framed in all three issues.
The claimants in support of their case got examined the second Petitioner, who is the son of the deceased as PW.1. They produced fifteen documents, which came to be marked as Exs.P.1 to P.15. On behalf of the Respondents, they did not lead any oral evidence. On the other hand, they got produced the policy of the offending vehicle marked with consent as Ex.R.1.
The Tribunal on considering the oral and documentary evidence on record held that the accident in question has taken place on account of the rash and negligent driving of the bus by its driver and accordingly, the claimants have established actionable negligence. Further, the Tribunal looking to the evidence on record and documents placed on record, determined the income of the deceased at Rs, 10,000/- per month, deducted 1/3rd out of the same towards personal expenses of the deceased and by applying the split multiplier of 12 having regard to the service of the deceased awarded a sum of Rs. 8,39,916 towards loss of dependency. Further it awarded a sum of Rs. 34,500/-towards conventional heads and medical expenses. In all the Tribunal has awarded a sum of Rs. 8,74,416/-rounded off to Rs. 8,75,000/- with interest at 6% per annum from the date of petition till realisation to the claimants. It further ordered the entire compensation be paid by the first Respondent- Insurance Company.
The Appellants/claimants being aggrieved of the quantum of compensation are in appeal before this Court.
The learned Counsel appearing for the Appellants/ claimants submitted that the Tribunal has erred in not taking the proper income of the deceased by deducting only professional tax. He further submitted that having regard to the age of the deceased being 49 years as determined by the Tribunal, in view of what has been, laid down in Sarala Verma Case, 30% should have been added to the salary of the deceased and adding the same, the income of the deceased should have been taken and thereafter, out of the said amount, 1/4th should have been deducted towards personal expenses fund not 1/3rd as has been done by the Tribunal. He further submitted that the Tribunal has applied the multiplier 12 instead of 13 which becomes applicable to the facts and circumstances of the case having regard to the age of the deceased, Thereby, the Tribunal has erred in not awarding commensurate compensation to the claimants towards loss of dependency. He further submitted that the Tribunal has also erred in not awarding any compensation towards love and affection, hence, a case for enhancement is made out.
Per contra, the learned Counsel for the contesting Respondent/ Insurer supported the impugned judgment and award of the Tribunal
Taking the rival submissions into consideration, evidence and documents on record, the point that arises for my consideration is:
Whether Appellants/ claimants have made out a case for enchancement?
The facts ere not in dispute. The deceased Mariyappa having met with accident, injuries sustained, having succumbed to the same while undergoing treatment in the hospital are not in dispute. It is the case of the claimants that the deceased was aged 48 years, working as Jamedhar in Vidhana Soudha, drawing a salary of Rs. 11,430/- per month. This aspect of the claim of the Petitioners is not seriously disputed to by the contesting Respondents. It is also fortified from the salary certificate, which is at Ex.P.9 which has been issued on behalf of Principal Secretary, Karnataka Legislature. A perusal of Ex.P.9 reveals that total gross salary of the deceased is Rs. 11,430/-. It further discloses that he was paying professional tax only Rs. 100/-. It is this amount which has to be deducted out of total gross salary and that the balance will have to be taken as the total income of the deceased. On the other hand the Tribunal has taken has salary at Re. 10,000/- per month, after allowing other deductions like towards medical allowances, group insurance, which is not correct Therefore, in the facts and circumstances, the salary of the deceased as on the date of the accident has to be taken at Rs. 11,330/- after deducting Rs. 100/- towards professional tax from his gross salary of Rs. 11,430/-, Admittedly, the deceased was aged 49 years as on the date of the accident In view of what has been laid down in Sarala Varma''s Case, 30% of the salary of the deceased will have to be added to the salary that the deceased was drawing as on the date of the accident. 30% of Rs. 11,330/ - comes to Rs. 3,310/- per month. Therefore, adding these two amounts, the total amount comes to Re. 14,640/- and that would be the total salary that the deceased would have earned during his life time. The claimants are the wife, son, daughter and parents of the deceased. That goes to show that the deceased during his life time was to feed five mouths. The Tribunal has deducted 1/3rd towards personal expenses of the deceased, which is not correct, having regard to the number of dependants. The Tribunal ought have deducted only 1/4th. Therefore, if out of the total salary of Rs. 14,640/- 1/4th of the same is deducted towards personal expenses, the net amount comes to Rs, 10,908/- (Rs. 14,640/-Rs. 3,660/-). This would be the total loss of dependency to the claimants per month, on account of the death of the deceased in the accident in question. As already pointed out, the deceased was aged 49 years, working as Jamedhar in Vidhana Soudha which is not in dispute. He would have retired on superannuation at the age of 58 years, as the accident has taken place on 16.04.2007. Therefore, in the facts and circumstances, in computing the future loss of dependency split multiplier will have to be applied. Having regard to his age, the proper multiplier that becomes applicable is 13 and not 12 as determined by the Tribunal. Having regard to his service the loss of dependency during his life time up to the age of 58 years would come to Rs. 11,85,840/-(Rs. 10,980/- x 12 x 9). Nextly, by taking the balance 50% of his salary it has to be multiplied by 12 x 4, By doing the same, the net amount comes to Rs. 2,63,520/- (Rs. 5,490/-x12x4). Thus in all the total dependency on account of the death of the deceased in the impugned accident works out to Rs. 14,49,360/-. This would be the total loss of dependency that the claimants are entitled to on account of the death of the deceased in the impugned accident The Tribunal has awarded a sum of Rs. 30,000/- towards conventional heads that is a sum of Rs. 10,000/- towards transportation, funeral and obsequies ceremony, Rs. 10,000/- towards loss to the estate Rs. 10,000/-towards loss of consortium to the first claimant However, it has erred in not awarding compensation towards love and affection. Having regard to the number of the claimants who are wife, son, daughter and parents of the deceased, they are awarded a sum of Rs. 20,000/- towards love and affection. Thus in all the claimants are entitled to total compensation of Rs. 50,000/- towards love and affection as against Rs. 30,000/ -awarded by the Tribunal. It is further the case of the claimants that they have incurred a sum of Rs. 4,500/- towards medical expenses for getting the deceased treated prior to his death after the accident. This was not also seriously disputed to by the other side. The said amount has also been rightly awarded by the Tribunal taking into consideration Ex.P.15 produced by the claimants in the case. The same is just and proper and does not call for any interference and modification. Thus the claimants in all would be entitled to total compensation of Rs. 15,03,860/- as against Rs. 8,75,000/- awarded by the Tribunal with interest at 6% per annum from the date of petition till realisation, The enhanced compensation comes to Rs. 6,28,860/-with interest at 6% per annum from the date of petition till realisation. The break up of the compensation awarded is as under:
Towards loss of dependency Rs. 14,49,360/-
Towards loss of transportation, funeral and obsequies ceremony Rs. 10,000/ -
Towards loss to the estate Rs, 10,000/-
Towards loss of consortium to the wife of the deceased Rs. 10,000/-
Towards love and affection Rs. 20,000/-
Towards medical expenses Rs. 4,500/-
* Total Rs. 15,03.860/-
Thus, the claimants in all are entitled to total compensation of Rs. 15,03,860/- with interest at the rate of 6% per annum from the date of petition till realisation as against Rs. 8,75,000/- with interest at the rate of 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs. 6,28,860/- with interest at the rate of 6% per annum from the date of petition till realisation.
Accordingly, appeal has to succeed in part.
In result for the foregoing reasons, I proceed to pass the following:
ORDER
(i) The Appeal is allowed in part.
(ii) The impugned judgment and award passed by the Tribunal is modified and the claimants are awarded total compensation of Rs. 15,03,860/- with interest at the rate of 6% per annum from the date of petition till realisation as against Rs. 8,75,000/- with interest at the rate of 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs. 5,28,860/-with interest at 6% per month from the date of petition till realisation.
(iii) First Respondent- Insurer shall deposit the entire enhanced compensation with interest before the Jurisdictional Tribunal within four weeks from the date of receipt of the copy of the judgment and award, Further it is made clear that the Appellant/ claimants are not entitled to any interest for a period of 263 days as ordered by this Court on the application filed for condoning the delay.
(iv) On deposit of enhanced compensation a sum of Rs. 1,50,000/- each shall be deposited in the name of the Appellants 1, 2 and 3 who are the wife and children of the deceased Mariyappa for a period of five years renewable by further for a period of five years. They are entitled to withdraw the interest accrued on the said deposit periodically.
(v) Out of the balance of Rs. 1,78,860/- a sum of Rs. 50,000/- each shall be deposited in the name of Appellants/claimants 4 and 5 in any Nationalised/Scheduled Bank for period of three years renewable by further for a period of three years. They are entitled to withdraw the interest accrued on the said deposit periodically.
(vi) The balance of Rs. 78,860/- with proportionate interest is ordered to be released in equal proportion in favour of the Appellants/ Claimants.
Office to draw the award accordingly.