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Judgment
H.S. Kempanna, J.—Though this matter is listed for admission with consent of the learned Counsel for the respective parties, it is taken up for final disposal.
This appeal is by the claimant seeking for enhancement of compensation on account of the death of the deceased Umashankar in a motor accident.
For the sake 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, children and mother of the deceased Umashankar. The claimants instituted a claim petition praying for grant of compensation on account of the death of the deceased Umashankar in the motor accident that took place on 27.11.2006 at about 1.00 p.m. in front of Chandappa Saw Mil situated on B.D. Road, Chitradurga involving auto rickshaw bearing No. KA-16/8162 owned by the first Respondent and insured with the second Respondent/Insurer at the relevant point of time.
According to the claimants, the deceased was aged 35 years, mason by profession, earning more than Rs. 5,000/- per month. He was their sole bread earner. They have no other source of income. On account of untimely death of the deceased they have been subjected to deap mental shock and agony. Hence, on all these grounds they sought for grant of compensation from the Respondents.
After service of notice, first Respondent remained absent. Hence, he was placed ex-parte, The second Respondent/Insurer 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 auto rickshaw. On the other hand, it took place due to the fault of the claimant himself. They further contended that the driver of the auto rickshaw 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 all other averment made in the petition by the claimant and 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 first claimant/wife of the deceased as PW.1 and one eye-witness as PW.2. they produced 9 documents, which came to be marked as Exs.P.1 to P.9. On behalf of the contesting Insurer, they got examined their Senior Assistant Officer as RW.1 and produced one document, which came to be marked as RW.1.
The Tribunal on considering the oral and documentary evidence on record held that the accident in question has taken place solely on account of the fault of the driver of the offending auto rickshaw, as such the claimants have established actionable negligence. Further, the Tribunal looking to the evidence of the first claimant/wife and the documents placed on record, took the ages of the deceased as 40 years, income at Rs. 3,000/- per month, deducted 1/3rd towards personal expenses of the deceased and by applying the multiplier of 15, awarded a sum of Rs. 3,36,000/ towards loss of dependency. Further the Tribunal awarded a sum of Rs. 30,000/- towards conventional heads. Thus in all it awarded a sum of Rs. 3,66,000/- with interest at 6% per annum from the date of petition till realisation. It further saddled the liability of the payment of compensation on the second Respondent/ Insurer.
The Appellants/ claimants being aggrieved by 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 correct income of the deceased, despite the evidence of PW.1, having regard to his age and avocation and further it has not properly deducted the amount towards personal expenses and thereby the Tribunal has committed an error in awarding lesser compensation towards loss of dependency. Further Seamed counsel for the Appellant contended that the Tribunal has also erred in not awarding just compensation towards conventional heads. Hence, a case for enhancement is made out.
Per contra, the learned Counsel for the contesting second 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 enhancement?
The facts are not in dispute. The deceased Umashankar having met with accident and died in the same is not in dispute. The question of actionable negligence need not be gone into in this appeal as the contesting insurer is acquiesced of the finding of the Tribunal in respect of the same by not filing any appeal. The claimants have claimed the deceased as on the date of the accident was aged 35 years, mason by profession, earning more than Rs. 5,000/- per month. However they did not place any material in support of proof his age. The Tribunal has taken the age of the deceased as 40 years relying on the entry made in the Post mortem report. The learned Counsel for the Appellant submitted, that the Tribunal has committed an error in taking the age of the deceased at 40 years despite the claim of the PW.1 wife that he was aged 35 years. The accident took place on 27.11.2006. The claim petition before the Tribunal as per the submission made by the learned Counsel for the Appellants/claimants has been field in April 2007, That is about five months after the accident. The first claimant/wife of the deceased has claimed that she is aged 34 years as on the date of filing of the petition. Therefore, claim of the claimants that the deceased was aged 35 years as on the date of the accident cannot stand to (sic) and it cannot be accepted. In that view of the matter, the age of the deceased taken at 40 years by the Tribunal relying on the entry made in the PM report, is just and proper and accordingly, the age of the deceased is taken as 40 years as on the date of accident.
Further coming to the question of income of the deceased, it is the case of the claimants the deceased was mason by profession, earning more than Rs. 5,000/- per month. But they have not placed any material in support of the same, In the absence of any clinching material having regard to the age, avocation and the date of the accident i.e. on 27.11.3006, the Tribunal has determined the income of the deceased at Rs. 3,000/- per month. The same in the facts and circumstances appears to be just and proper and does not call for any modification. The Tribunal having determined the income of the deceased per month at Rs. 3,000/-, deducted 1/3rd towards his personal expenses. The claimants are the wife, children and mother of the deceased. They are six in number. Therefore, it goes to show that the deceased during his life time was feeding six mouths. In that view of the matter, the proper deduction that should have been allowed towards personal expenses by the Tribunal should have been 1/4th not 1/3rd. Therefore, if 1/4th out of the income of the deceased of Rs. 3,000/- per month is deducted towards his personal expenses, the loss of dependency per month to the claimants comes to Rs. 2,225/- (Rs. 3,000/- - 750/-). The deceased was aged 40 years as held above. Therefore, the multiplier that becomes applicable in the case is 15. In the light of this, the claimant would be entitled to total compensation of Rs. 4,05,000/- towards loss of dependency as against Rs. 3,36,000/- determined by the Tribunal, Further, the Tribunal has awarded a sum of Rs. 30,000/- towards conventional heads. This appears to be on the lesser aide. The deceased was 40 years. The claimants are the wife, children and mother of the deceased. Taking these factors into consideration, the claimants are entitled to a total sum of Rs. 50,000/-towards conventional heads as against Rs. 30,000/-awarded by the Tribunal. The break up of the compensation awarded is as under:
1.
Towards loss of dependency
Rs. 4,05,000/-
2.
Towards loss of consortium
Rs. 10,000/-
3.
Towards loss the estate
Rs. 10,000/-
4.
Towards loss of love and affection
Rs. 20,000/-
3.
Towards loss of transportation, funeral and obsequies ceremony
Rs. 10,000/-
Total
Rs. 4,55,000/-
Thus, the Appellants/claimants in all are entitled to total compensation of Rs. 4,55,000/- with interest at the rate of 6% per annum from the date of petition till realisation as against Rs. 3,66,000/- 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. 89,000/- 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 Appellants/claimants are awarded total compensation of Rs. 4,55,000/- with interest at the rate of 6% per annum from the date of petition till realisation as against Rs. 3,66,000/- 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. 89,000/- with interest at 6% per annum from the date of petition till realisation.
(iii) Second Respondent- Insurer shall deposit the entire enhanced compensation with interest before the Jurisdictional Tribunal within four weeks from the data of receipt of the copy of the judgment and award.
(iv) On deposit of enhanced compensation of Rs. 89,000/- with interest, a sum of Rs. 15,000/- each shall be deposited in the name of the Appellants/ claimants 4 and 5 namely Kum. Latha and Sri. Jagadeesh in any Nationalised/ Scheduled Bank till they attain majority. On their attaining majority, the said amount shall further be reinvested in their names for a period of five years renewable by another for a period of five years. The first Appellant/claimant is entitled to withdraw the interest accrued on the said deposit periodically till the minors attain Majority and after their attaining majority they are entitled to withdraw the interest accrued on the deposit made in their respective names.
(v) Out of the balance of Rs. 59,000/, a sum of Rs. 15,000/- with proportionate interest is ordered to be released in favour of the third Appellant Sri. Siddesh.
(vi) Out of the balance a sum of Rs. 25,000/- with proportionate interest is ordered to be released in favour of the first Appellant/claimant/wife of the deceased.
(v) Balance of Rs. 19,000/- with proportionate interest is ordered to be released in favour of the sixth Appellant/claimant who is the. mother of the deceased.
Office to draw the award accordingly.