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Judgment
This appeal and cross objection are arising out of the judgment and award dated 03.08.2010 passed in MVC No.41/2010 on the file of MACT-II, Ballari.
The undisputed facts are that, the claimant Shaikshavali''s mother Shekamma died in a road traffic accident dated 21.09.2009 at about 3.30 p.m. The said accident is caused due to rash and negligent driving of the lorry bearing reg.No.KA-36/2939 by its driver, which belongs to respondent No.1 and insured with respondent No.2 is also not in dispute. Thereafter, in the proceedings initiated by the petitioner seeking compensation for the death of his mother, the Court below has taken the income of the deceased notionally at Rs.3,000/- p.m. and by deducting 1/3rd towards her personal expenses proceeded to take 2/3rd as income available to the dependent and awarded compensation in a sum of Rs.3,63,500/-. The respondent insurer though accepted the accident and death of Shekamma did not accept the compensation awarded by taking notional income at Rs.3,000/- and awarding compensation under the head loss of dependency to the sole petitioner, who is none other than son of the deceased.
The grievance of the insurer is that the total compensation awarded is in a sum of Rs.3,63,500/-, the compensation awarded towards loss of dependency is Rs.3,36,000/-. He would bring to the notice of this Court that claimant is gainfully employed and he was not depending on his mother and besides mother and son there are no other persons in the family. According to him, the claim of the claimant could not be considered beyond the scope of awarding compensation under the head loss of estate, loss of love and affection and the amount spent towards obsequies. Since the claimant himself having employed on his own, he is not depending on his mother. However, on service of notice to the respondent in the appeal filed by the insurer, he has preferred a cross objection seeking enhancement of compensation on the ground that notional income taken at Rs.3,000/- p.m. to a person who died in a road traffic accident in the year 2009 is on the lower side and it should have been taken at least in the range of Rs.5,000/- p.m., which is normally considered for the accident occurred during the said period. Further, he would state that though the claimant is gainfully employed and since he is unmarried, there is some amount of dependency on his mother, for which, the compensation is required to be calculated on the basis of loss of dependency also.
Heard the learned counsel appearing for the appellant and as well as the cross objector-respondent, perused the judgment impugned and also the lower Court records, which are made available. On going through the same, this Court feel that the judgment impugned is not sustainable in the eye of law inasmuch as in the claim petition itself the claimant has stated that he is gainfully employed as coolie which clearly indicate that he is not depending on his mother. However, the unfortunate fact is that, his mother died in a road traffic accident when he and his mother and other members of the village were waiting for a bus to go to Shanavasapura village, at that time, due to rash and negligent driving of the lorry by its driver, the accident has taken place. Therefore, in the fact situation, though the loss of mother is condoled, the same would not technically entitle the claimant to seek compensation under the head loss of dependency. As stated supra, in the instant case, he could seek only loss of estate. To consider the loss of estate, the income required to be taken should be in the range of Rs.5,000/-, since the accident is of the year 2009. If that is taken into consideration, 50% should be taken as the money that would be spent by the deceased for her personal use and 50% can be considered, which comes to Rs.2,500/-. In the instant case, her son being gainfully employed, he is not depending on his mother. Therefore, what he is entitled to is only towards loss of estate. To calculate the same, 15% of remaining Rs.2,500/- will have to be taken which comes to Rs.375/-. If the same is multiplied by 12, it would be Rs.4,500/- p.a. Since the deceased was aged 40 years as on the date of accident, the relevant multiplier is ''14''. If that is taken into consideration, the claimant would be entitled to compensation under the head loss of estate at Rs.63,000/-. In addition to that, a sum of Rs.60,000/- is awarded towards loss of love and affection, expenses incurred for obsequies and various other heads. Hence, the total compensation which the claimant would be entitled to is Rs.1,23,000/- as against Rs.3,63,500/- awarded by the Tribunal.
Accordingly, the appeal filed by the insurer is allowed in part in reducing the compensation payable to the claimant in a sum of Rs.1,23,000/- with interest at 6% p.a. from the date of petition till the entire amount is deposited. So far as the cross objection is concerned, it is allowed in part in taking the income of the deceased at Rs.5,000/- p.m. for the purpose of calculating the compensation under the head loss of estate.
Accordingly, the appeal and as well as cross objection are disposed of. In view of disposal of the appeal, from out of the amount in deposit, the modified compensation with interest is ordered to be released in favour of the claimant, if any excess amount is available, the same shall be refunded to the appellant-insurer. In the event, the amount in deposit fall short of the modified compensation with interest, the same shall be deposited by the insurer within four weeks from the date of receipt of a certified copy of this judgment.