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Judgment
H.S. Kempanna
This appeal by the claimants is directed against the common impugned judgment and award dated 29.12.2010 passed in MVC No. 104/2009 by MACT, Kolar seeking for enhancement of compensation in respect of the death of the deceased Smt.Venkatalakshmamma who died in a motor accident.
The claimants are the sons and daughter of the deceased Venkatalakshmamma. According to them the deceased was aged about 49 years a coolie by occupation earning more than Rs. 5,000/- p.m. On the date of accident, the deceased was proceeding as a pillion rider in the motor cycle bearing No.KA-41-J-5669. When the said motor cycle was near Thimmanayakanahalli village located on Mulbagal road, the Tractor Trailer bearing Regn.No.KA-07/T-8974 and KA-07-8975 owned by the first respondent insured with the second respondent at the relevant point of time driven by its driver at a high speed in a rash and negligent manner came and dashed against the motor cycle in which the deceased was proceeding as a pillion rider. On account of the impact, the rider and the deceased fell down, sustained injuries and succumbed to the same at, the spot.
The deceased was their sole bread-earner and they were entirely depending on her. On account of the untimely death, they have lost their source of income. Accordingly, they prayed for grant of compensation iron: the respondents who are the owner and insurer of the offending Tractor -Trailer involved in the accident.
After notice the respondents appeared and contested the claim of the claimants. They contended that the impugned accident has not taken place on account of the fault of the driver of the offending tractor-trailer, on the other hand, it took place due to the negligence of the rider of the motor cycle. Further, the owner contended that the driver of the tractor trailer did possess valid and effective driving licence and as his vehicle has been insured with the second respondent insurer, if for any reason he is held liable the liability if any to pay compensation be saddled on them. The second respondent insurer contended as the driver of the offending tractor-trailer did not possess valid and effective driving licence to drive the vehicle in question at the time of accident, as such, there is breach of terms and condition of the policy issued. They also denied all other averments made in the claim petition and contended that as the accident has not taken place on account of the fault of the driver of the offending tractor trailer, they are not liable to pay any compensation accordingly, sought for dismissal of the petition.
The tribunal considering the oral and documentary evidence on record held that the accident has taken place solely on account, of the fault of the driver of the offending tractor trailer and as such the claimants have established actionable negligence Further, the tribunal looking to the evidence of the first appellant/claimant and the documents placed on record, held that the deceased on the date of accident was aged 60 years, determined her income at Rs. 3,000/- p.m., deducted one-third out of the same towards personal expenses and by applying the multiplier of 9 awarded compensation of Rs. 2,16.000/- towards loss of dependency. It further awarded a sum of Rs. 10,000/- towards the conventional heads and thus, in all awarded Rs. 2,26,000/- with interest at 6% p.a. from the date of the petition till realisation. It. also saddled the liability of payment of compensation on the second respondent-insurer.
The appellants-claimants being aggrieved by the quantum of compensation are in appeal before this Court.
Learned counsel appearing for the appellants-claimants submitted that the Tribunal has erred in not taking proper income of the deceased and it, has also erred in taking the age of the deceased at 60 years as against 49 years claimed by the claimants and thereby it has awarded lesser compensation than what, the claimants are entitled to contrary to the evidence or: record. Hence, a case for enhancement is made out.
On hearing the learned Counsel appearing for the appellant and the papers made available to me, the point that arises for our consideration is:
Whether the appellants-claimants have made out a case for enhancement?
Facts are not in dispute. The deceased having met with accident, injuries sustained, and later having succumbed to the injuries are not disputed before me. The accident having taken place on account of the actionable negligence of the driver of the offending tractor trailer and the liability of the insurer is also not dispute. It is the case of the appellants/claimants that they being the sons and daughters were entirely depending on the deceased. It is their case that the deceased was aged about 49 years, coolie by occupation earning more than Rs. 5,000/- p.m. Though the claimants have claimed that the deceased was aged 49 years, the first claimant who is the son of the deceased who has been examined as PW2 in this case has admitted in the cross examination that his deceased mother was 60 years as on the date of the accident. Placing reliance on the said admission given by PW2, the Tribunal has determined the age of the deceased as 60 years and relying upon the same, has applied the multiplier of 9 to the facts of the case. In view of the admission of PW2, I do not find any reasons to differ with the findings of the tribunal in holding that the deceased was aged 60 years as on the date of the accident.
Coming to the income of the deceased, though the claimants have claimed that she was earning more than Rs. 5,000/- p.m. as they have not been able to place any substantial material supported with documents, the Tribunal has determined her income at Rs. 3,000/- p.m. Further the Tribunal after determining the income of the deceased at Rs. 3,000/- p.m. has deducted one-third towards the personal expenses of the deceased and has determined the compensation towards loss of dependency which in my view, is not correct having regard to the age of the claimants. Claimants admittedly are the sons and daughters of the deceased. Both the sons are grown up sons. Therefore, the Tribunal ought to have considered the case of the claimants for awarding compensation towards loss to the estate of the deceased and not towards loss of dependency. If that is so, in my view, the deceased would have contributed to the family 50% of her income. In that view of the matter if 50% is deducted from out her income of Rs. 3,000/- p.m, it conies to Rs. 1,500/- p.m. But, in this case, the tribunal has deducted one-third from her income and by applying the multiplier of 9, has awarded compensation of Rs. 2,16,000/- which is much higher than what the claimants would be entitled to if their case is to be considered for awarding compensation towards loss of estate of the deceased. Further, even if the claimants are awarded a sum of Rs. 30,000/- towards conventional heads to which they are entitled, even then the compensation that has been awarded to them would not be more than what, has been awarded by the Tribunal. Therefore, under these circumstances, 1 am of the view that the claimants have not made out any case for enhancement of compensation. Accordingly, the appeal has to fail.
In the result, for the foregoing reasons, the appeal is dismissed.