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Judgment
N.K. Patil
The appeal by the Insurer and the cross objection by the claimants/cross objectors are respectively directed against the same judgment and award dated 30th October 2007, passed in M.V.C. No. 45/2005, by the II Additional Civil Judge(Sr.Dn) and Motor Accident Claims Tribunal, Shimoga. (for short, ''Tribunal'').
While the Insurer has filed the appeal seeking reduction of compensation, on the ground that the quantum of compensation awarded by Tribunal is on the higher side, the claimants cross objectors have filed the cross objection, seeking enhancement of compensation on the ground that, the compensation of Rs. 3,40,000/- awarded in their favour, as against their claim for Rs. 16.78 Lakhs, is inadequate and needs to be enhanced.
The facts in brief are that, the claimants had filed the claim petition u/s 166 of the Motor Vehicles Act, contending that on 29-08-2004, the deceased met with an accident, when deceased Sridhara and others were going to Sigandoor Temple from Davanagere in a Maruthi Van, bearing Registration No.KA-35/M-1829, due to rash and negligent driving by the driver of Tanker bearing Registration No.KA-14/A-2223. Due to the impact, he sustained grievous injuries to his head, legs and other parts of the body and later on succumbed to the same.
On account of the untimely death of the deceased Sridhara in the road traffic accident, the claimants cross objectors filed the claim petition before the Tribunal, seeking compensation of a sum of Rs. 16.78 lakhs against the owners and the insurers of both the vehicles. The said claim petition had come up for consideration before the Tribunal on 13th December 2007. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 3,40,000/- under different heads, with 6% interest per annum, from the date of petition till the date of deposit and directed the appellant Insurer to satisfy the award. Being aggrieved by the quantum of compensation, the Insurer is in appeal before this Court, seeking to reduce the same and the claimants have filed the cross objection, seeking enhancement of compensation.
I have gone through the grounds urged in the memorandum of appeal filed by the Insurer and the memorandum of cross objections filed by claimants/cross objectors and also the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for the insurer and the cross objectors.
Shri. M.U. Poonacha, learned counsel appearing for the Insurer vehemently submits that the Tribunal seriously erred in assessing the income of the deceased at Rs. 5,000/- per month without any documentary evidence and also without examining the employer of the deceased. Therefore, he submits that reasonable monthly income of the deceased may be reassessed and reasonable compensation may be awarded by modifying the impugned judgment and award passed by Tribunal.
As against this, Shri. B.G. Chidananda Urs., learned counsel appearing for claimants/cross objectors, inter alia, submits that the Tribunal grossly erred in not assessing the reasonable monthly income of the deceased, for the reason that the deceased was a Diploma holder and working as a Computer Engineer at Sai Info. System (India) Pvt. Ltd and thereafter he was working at BSNL on contract basis at Davangere at the time of accident. Therefore, the Tribunal ought to have assessed higher monthly income and awarded reasonable compensation towards loss of dependency. Further, he submits that the compensation of Rs. 10,000/-awarded towards conventional heads is also on the lower side and as per the judgment of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, ), the claimants are entitled to Rs. 45,000/- under the conventional heads. Therefore, he submits that the impugned judgment and award passed by Tribunal is liable to be modified.
After hearing learned counsel for the parties, after careful perusal of the judgment and award passed by the Tribunal and after going through the original records made available, the only point that arise for my consideration in the appeal and the cross objections is:
Whether the quantum of compensation awarded by Tribunal is just and reasonable?
The occurrence of accident and the resultant death of the deceased Sridhara in the road traffic accident on the aforesaid date are not in dispute. After careful perusal of the impugned judgment and award passed by Tribunal and after considering the rival contentions of the learned counsel for both the parties, I am of the view that the Tribunal erred is right in assessing the monthly income of the deceased at Rs. 5,000/-, for the reason that the deceased was a Diploma holder in Electronics and Telecommunications with second class. He was an young and energetic boy and being a diploma, holder, he would not have kept quiet. So far as the submission of the learned counsel for insurer that the employer is not examined and no documentary evidence is produced by the claimants is concerned, I am of the view that mere non examination of the employer and the absence of documentary evidence cannot take away the relief sought for by claimants. It is stated that the deceased was a bachelor and earning a sum of Rs. 5,000/- per month and contributing the entire sum towards the family requirements. The said income assessed is just and proper and interference in the same is uncalled for, Further, as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, ), the proper multiplier applicable is ''11'', which the Tribunal has rightly adopted. The dependents are parents and the deceased being a bachelor, I deduct 50% (i.e. Rs. 2,500/-) towards the personal expenses of the deceased. Accordingly, the loss of dependency works out to Rs. 3,30,000/- (i.e. Rs. 2,500/- x 12 x ''11''), which the Tribunal has rightly arrived at and awarded the said compensation under the loss of dependency. Hence, it does not call for interference.
Further, having regard to the facts and circumstances of the case, I am of the view that the Tribunal has seriously erred in awarding only Rs. 10,000/-towards conventional heads and it requires enhancement. Accordingly, in view of the judgment of the Apex Court in Sarla Verma''s case (supra), I award a sum of Rs. 45,000/- towards conventional heads, viz. loss of estate, loss of love and affection and transportation and funeral expenses, as against
Rs. 10,000/- awarded by Tribunal towards conventional heads. Thus, the claimants cross objectors would be entitled to a total compensation of Rs. 3,75,000/- as against Rs. 3,40,000/- awarded by Tribunal and there would be an enhancement of compensation of Rs. 35,000/-.
In the light, of the facts and circumstances of the case, as stated above, the appeal filed by Insurer is dismissed as devoid of merits and the cross objections filed by the claimants cross objectors is allowed in part;
The impugned judgment, and award dated 30th October 2007, passed in M.V.C. No.45/2005, by the II Additional Civil Judge(Sr.Dn) and Motor Accident Claims Tribunal, Shimoga, is hereby modified, awarding a total compensation of a sum of Rs. 3,75,000/- as against Rs. 3,40,000/-, with interest at 6% per annum, from the date of petition till the date of realization. (Enhancement being a sum of Rs. 35,000/-)
The appellant - Insurance Company is directed to deposit the remaining compensation, with interest thereon at 6% per annum, from the dated of petition till the date of realization, within three weeks from the date of receipt of copy of the judgment and award.
Immediately on such deposit by the Insurance Company, the same shall be released in favour of the cross objectors, in equal proportion, immediately.
The amount in deposit by the Insurer is directed to be transmitted to the jurisdictional Tribunal, forthwith.
Office to draw award, accordingly.