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Judgment
These appeals are filed under Section 173(1) of the Motor
Vehicles Act, 1988 challenging the judgment and award passed
by the Motor Vehicle Accident Claims Tribunal-IX, Mudhol, dated
30.05.2011 in MVC No.443/2007.
The appellant in MFA No.21942/2013 is the
respondent-Corporation before the Motor Vehicle Accident Claims
Tribunal (for short ''Tribunal'') and has prayed for setting aside
the impugned judgment and award whereas the appellants in
MFA No.100720/2014 are the claimants before the Tribunal
below have prayed for enhancement of compensation awarded
under the impugned judgment.
The appellant-corporation in MFA No.21942/2013 in
its memorandum of appeal has taken contention that the
Tribunal below has erred in not considering that the accident was
one of the contributory negligence. The compensation awarded
by the Tribunal is a huge amount and that the Tribunal ought to
have deducted 1/3rd of the income of the deceased towards his personal expenses instead of 1/4th. Stating that awarding
compensation under other heads also deserves to be set aside it
has prayed for allowing the appeal by setting aside the
impugned judgment.
The appellants-claimants in MFA No.100720/2014 in
their memorandum of appeal have stated that though by
pleading and evidence it was brought to the notice of the
Tribunal that the income of the deceased was Rs.13,000/- per
month, it has erred in confining the same to Rs.6,000/- per month.
They have further stated that the Tribunal has failed to award
compensation under the head of future loss of prospects and
further stated that the compensation awarded under other heads
are also very meager. They have prayed for enhancement of
compensation as prayed in their claim petition before the
Tribunal below.
Though notice was served on the respondent-
Corporation in the Tribunal below, it remained unrepresented, as
such, it was placed exparte in the Tribunal below. The lower
court records are called for and the same is placed before this
Court.
Heard arguments from both sides. Perused the
memorandum of appeals, impugned judgment and award and
the entire records placed before us.
In the light of the above, the following points arise
for our consideration:
"i. Whether the appellant-corporation has made out grounds to allow the MFA No.21942/2013? ii. Whether the appellants-claimants have made out grounds to allow the MFA No.100720/2014?"
Since these points are interrelated to each other, in
order to avoid repetition of analysis of facts, both the points are
taken up together for analysis.
For the sake of convenience, the parties would be referred
with their rankings they were holding in the Tribunal below.
The main contention of the appellant-corporation in
MFA No.21942/2013, who was the respondent in the Tribunal
below is that the Tribunal has failed to take note of the
contributory negligence on the part of the cyclist.
The summary of the case of the claimants is that on
11.05.2007 at about 11.30 a.m. while the deceased
Nandakumar was proceeding on a Bicycle in front of
Bandiwaddar Petrol Bunk, at that time, a KSRTC bus bearing
registration No.KA-29/F-1235 being driven by its driver in a rash
and negligent manner dashed to the Bicycle of the deceased.
Due to the said accident, the rider Nandakumar sustained
grievous injuries and died on the spot. The Tribunal below, on
the said alleged fact, framed a point to know whether the
claimants proved that the alleged accident was due to rash and
negligent driving of the bus by its driver. Appreciating the
materials placed before it including the evidence of the claimant
No.1 and the documents produced, it answered the said point in
the affirmative.
It is to be noticed that the appellant-corporation in
MFA No.21942/2013 was the sole respondent in the Tribunal
below being the owner-cum-insurer of the alleged offending bus.
The said respondent-corporation was duly served with notice. In
spite of service of notice, it did not choose to appear before the
Tribunal and contest the matter. As such, it was placed exparte
and the matter was proceeded.
On behalf of the claimants in the Tribunal below,
claimant No.1-Kavita was examined as PW1 and she got marked
documents at Exs.P1 to P8 which included FIR at Exhibit P1,
Motor vehicle Inspectors report at Exhibit P5 and Charge sheet
at Exhibit P6. Her evidence to the effect that on the alleged date
of accident her husband i.e., deceased Nandakumar was
proceeding on a bicycle and the KSRTC bus bearing
Registration No.KA 29 F-1235, owned by the respondent-
Corporation, came and dashed to the cycle rider, due to which,
the said rider sustained injuries and died on the spot has
remained undisputed. Her further evidence that the KSRTC bus
was being driven by its driver in a rash and negligent manner at
the time of accident and it was solely due to the rash and
negligent driving of the bus by its driver the accident occurred
also has not been denied or disputed from the respondent-
Corporation side. The evidence of PW1 is further corroborated
by Exhibit P1-FIR, Exhibit P5-Motor Vehicle Inspector''s Report
and also Exhibit P6-the charge sheet. Exhibit P6 discloses that
the driver of the bus was in a rash and negligent driving. None
of these documents anywhere whispers about the alleged
contributory negligence. That being the case, the uncontroverted
evidence of PW1 corroborated by the above mentioned
documents establishes that the road traffic accident occurred
solely due to the rash and negligent driving of KSRTC bus by its
driver. The question of alleged contributory negligence being a
question of fact in the instant case, the respondent-corporation
without contesting the matter in the Tribunal below and in the
absence of supporting documents in its favour, in this appeal
stage failed to establish the alleged contributory negligence.
Therefore, the primary contention of the appellant-corporation in
MFA No.21942/2013 and the arguments of its learned counsel on
this point is not acceptable.
In the light of the above observation, the other
question that remains to be considered is the resonableness of
the quantum of compensation awarded under different heads.
According to the claimants, the compensation awarded is on the
lower side, as such, it is not reasonable. On the contrary, the
contention of the respondent-corporation is that the
compensation awarded is excessive.
The Tribunal below in the impugned Judgment has
awarded the compensation on the following heads and the
manner ;
Towards loss of dependency 7,02,000/-
Towards loss of consortium to claimant No.1 15,000/-
Towards loss of love and affection 15,000/-
Towards funeral and shifting of the 10,000/-
Towards loss of estate 5,000/-
Total 7,47,000/-
According to the claimants, the deceased
Nandakumar, prior to the accident was earning as Pigmy Agent
in Syndicate Bank and earning Rs.13,000/- per month. PW1 in her
evidence has reiterated the same and in support of her
statement she has also produced a bank statement at Exhibit.P7,
which discloses that the deceased had received a commission of
Rs.10,767/-, Rs.9,970/-, Rs.12,803 and Rs.11,290/- for the months of
January, February, March and April, 2007. The Tribunal below
has arrived at a conclusion holding that the income of the
deceased should be taken at Rs.6,000/- per month. Even if it is
admitted that the deceased was working as Pigmy Agent in
Syndicate Bank, still it is not in dispute that he was not a
salaried employee in the said Bank and he was only an Agent on
behalf of the Bank who was collecting small savings amount
from the customers and depositing it in their respective accounts
in the Bank on a regular basis, may be daily or weekly, for which
services he was getting some commission at the prescribed rate
from the Bank. Therefore, it is clear that his income was
variable one and not fixed. Depending upon his performance
during a particular month, amount of commission used to be
decided. As such, any of his income for any particular month
cannot be treated as his regular income for every month. There
is all possibility of the deceased as Pigmy Agent getting very
small amount as commission when his pigmy collection goes
down. Thus, in order to arrive at some average, the claimants
could have produced the statement of income of the deceased
for the immediately preceeding two or three financial years. If
the deceased were to be an income tax assessee the claimants
could have produced the income tax return details also. In the
absence of any of these helpful materials being placed before the
Tribunal by the claimants, the Tribunal was right in not accepting
the income of the deceased at Rs.13,000/- per month. In the
absence of any clear proof of income of a person, the
Co-ordinate Benches of this Court in several matters are taking
the income of an injured/deceased for the year 2007 at Rs.4,000/-
per month. However, considering the nature of the work of the
deceased as a Pigmy Agent and quantum four months''
commission received by him, the Tribunal has arrived at a
conclusion that the income of the deceased should be taken at
Rs.6,000/- per month. We do not find any infirmity in it. As
such, we do not want to enhance the said income of the
deceased by any amount.
When the income of the deceased is taken at
Rs.6,000/- per month, his contribution towards his family to be
considered after deducting his personal expenses. The Tribunal
below has deducted 1/4th of his income towards his personal
expenses. Though the learned counsel for the respondent-
Corporation submitted that the said deduction should have been
1/3rd but we do not find any reason to increase the percentage
of deduction towards personal expenses. Considering the
dependants who are shown to be four in number, we hold that
deduction 1/4th of the income of the deceased towards his
personal expenses is appropriate. After deducting the said
personal expenses of the deceased, his contribution towards his
family per annum would come to Rs.54,000/-. Considering the
age of the deceased, who is said to be 46 years which has
remained undisputed, the multiplier applicable is ''13''. As such,
the compensation towards ''loss of dependency'' would come to
Rs.54,000 x 13=7,02,000/-.
Citing a judgment of Hon''ble Apex Court reported in
(2013) 9 SCC 54 in the case of Rajesh and Others -vs-
Rajbir Singh, the claimants have stated that the Tribunal below
ought to have awarded compensation towards loss of future
prospects. Admittedly, by the time the judgment was
pronounced by the Tribunal below, the said case was not decided
by the Hon''ble Apex Court. The said case was decided and
reported in the year 2013. However, since the appeal is pending
and since the Hon''ble Apex Court in the said case was pleased to
observe that while calculating the future loss of income or loss of
dependency, the future prospects of the deceased or disabled
was also to be considered. Therefore, we are of the view that
the claimants are entitled for the compensation towards loss of
future prospects of the deceased. According to the said
judgment, in the Rajesh''s case (supra), for the age of the
deceased Nandakumar, 30% of his income has to be added
towards future prospects. As such, 30% of the compensation
under the head loss of dependency, which is Rs.7,02,000/-
comes to Rs.2,10,600/-. This amount we intend to award under
the head loss of future prospects of the deceased.
The Tribunal below has awarded a sum of Rs.15,000/-
to claimant No.1 towards ''loss of consortium''. The said amount
undoubtedly is a meager amount. Considering the above said
decision of Rajesh''s case cited supra, we intend to enhance it to
a sum of Rs.1,00,000/- which according to us is reasonable in the
circumstances of the case. Similarly, towards ''loss of love and
affection'' also, a sum of Rs.15,000/- awarded by the Tribunal
below being not reasonable requires enhancement. As such, we
enhance the said amount to Rs.60,000/-. Compensation of
Rs.10,000/- awarded by the Tribunal below towards ''funeral and
shifting of the body'' also requires to be enhanced considering
the circumstances of the case. As such, we enhance it to
Rs.25,000/-. The Tribunal below has awarded a sum of Rs.5,000/-
towards ''loss of estate''. The deceased being a Pigmy Agent and
considering his monthly income, which was taken at Rs.6,000/- per
annum, we do not find that he was capable of leaving a large
estate to his dependants. However, the present circumstance of
the case warrants enhancing the compensation under the said
head from Rs.5,000/- to Rs.10,000/-..
Except the above heads, the claimants are not
entitled for compensation under any other heads. As such, the
claimants are entitled for compensation under the following
heads:
Towards loss of dependency including future prospects of the deceased (7,02,000 + 2,10,600) 9,12,600/-
Towards loss of consortium to claimant No.1 1,00,000/-
Towards loss of love and affection 60,000/-
Towards funeral and shifting of the body 25,000/-
Towards loss of estate 10,000/-
Total 11,07,600/-
The contention of the appellant-corporation in
MFA No.21942/2013 is, the Tribunal ought to have held that
there was contributory negligence on the part of the bicycle
rider/deceased. Since the same has not been accepted by us,
the order of the Tribunal below affixing the liability on the
respondent-corporation to pay the entire compensation awarded
remains unaltered. The order of the Tribunal below in fixing the
liability upon the respondent-corporation, payment and rate of
interest on the awarded amount and apportionment on the
awarded amount and its release requires no interference at the
hands of this Court. However, by virtue of the order of this
Court dated 15.10.2014, the claimants/appellants in
MFA No.100720/2014 are not entitled for interest for the delayed
period in preferring their appeal, which is 922 days. For these
reasons, answering point No.1 in the negative and point No.2 in
the affirmative, we proceed to pass the following order:
ORDER
M.F.A.No.21942/2013 is dismissed. In view of dismissal
of the appeal, I.A.2/2013 filed for stay becomes infructuous.
M.F.A.No.100720/2014 is allowed in part. The judgment
and award passed by the Motor Vehicle Accident Claims Tribunal-
IX, Mudhol, dated 30.05.2011 in MVC No.443/2007 is modified
to the extent that the compensation of a sum of Rs.7,47,000/-
awarded therein is enhanced to Rs.11,07,600/-. The remaining
portion of the award, the rate of interest, fixation of the liability
on the respondent-corporation, apportionment of the awarded
amount among the claimants and its release shall remain
unaltered. However, the claimants are not entitled for interest
for the delayed period of 922 days.
There is no order as to costs.