The Divisional Manager, National Insurance Company Limited vs Smt. Neelawa and Others

A.N. Venugopala Gowda, J.—M.F.A. No. 24590 of 2011 is by the Insurance Company aggrieved by an award passed by Additional Motor Accident Claims Tribunal, Saundatti (for short, ''the Tribunal''), directing payment of compensation amount of Rs. 6,35,000/- with interest to the claimants in MVC No. 1657 of 2010. Dissatisfied with the award passed by the Tribunal, the claimants have filed MFA CROB No. 707 of 2013, seeking modification and enhancement of the compensation amount. Sri Fakkirappa Hanamantappa Madar sustained fatal injuries in a motor vehicle accident that occurred on 3-6-2010 at about 8.00 p.m. at Saundatti-Dharwad Road, in Inamhongal Village limits. When he was going by the side of the road, to attend nature call, motorcycle bearing No. KA-24/K-1074, came in rash and negligent manner and dashed to him. Thereby, he sustained grievous injuries and succumbed while under treatment in SDM Medical College and Hospital, on 8-6-2010. His wife and children filed a petition u/s 166 of Motor Vehicles Act, 1988, against the owner-cum-rider of the offending vehicle, for awarding of compensation to the tune of Rs. 22,55,000/-. They pleaded that the accident was caused due to rash and negligent driving of the motorcycle by its owner-cum-rider Devaraddi, S/o. Govindaraddi Venkaraddiyavar and the vehicle had insurance cover.

The owner-cum-rider and insurer of the offending motorcycle, having entered appearance, filed statement of objections and contested the claim. Based on the pleadings, three issues were raised by the Tribunal. Wife of deceased got herself examined as P.W. 1. Two other witnesses were examined as P.Ws. 2 and 3. Exs. P. 1 to P. 38 were marked. For the respondents, no oral evidence was adduced. However, driving licence of the rider of the offending motorcycle and the insurance policy of the offending vehicle were marked, with consent, as Exs. R. 1 and R. 2. After noticing the evidence adduced by the parties, the Tribunal decided issue No. 1 in the affirmative and held that the accident was caused due to rash and negligent driving of the motorcycle by its owner-cum-rider Devaraddi. While dealing with issue No. 2, the Tribunal adverted to the case of petitioners and finding that the deceased was doing bar bending work, took his income on national basis at Rs. 150/- per day. Since there were four dependants, 1/3rd of the income was deducted towards personal and living expenses of the deceased and loss of annual dependency of the claimants was determined at Rs. 36,000/-. Age of the deceased was reckoned as 32 years based on the post-mortem report Ex. P. 6 and multiplier of 16 was applied and the total loss of dependency was arrived at Rs. 5,76,000/-. The injured having survived upto 8-6-2010, in view of bills produced with regard to incurring of medical expenses, marked as Exs. P. 16 to P. 35, the same was quantified at Rs. 24,005/-. In addition, the claimants were held entitled to Rs. 35,000/- under the conventional heads i.e., ''loss of estate'', ''loss of consortium'' and ''funeral and obsequious expenses''. Thus, the claim petition was allowed in part and compensation of Rs. 6,35,005/- was determined which was rounded off to Rs. 6,35,000/-. There being no dispute that the vehicle had the insurance coverage and the rider had valid driving license, both the respondents were jointly and severally held liable to pay compensation of Rs. 6,35,000/- with interest at 6% p.a. from the date of filing of petition till realisation.

Smt. Sharmila X. Patil, learned Advocate for the Insurance Company, contended that the Tribunal has committed error in treating the deceased as a sub-contractor and reckoning his income at Rs. 150/- per day and quantifying the loss of dependency at Rs. 5,76,000/-. She submitted that the findings recorded in the impugned judgment and award are contrary to the evidence on record of the case and hence, interference is warranted.

Sri Lingaraj Maradi, learned Advocate for the claimants, on the other hand contended that the Tribunal has not awarded just compensation. He submitted that the Tribunal has committed error not only in the matter of reckoning the income of the deceased but also in the matter of deduction towards personal and living expenses of the deceased. He further submitted that the sum awarded under the conventional heads is meagre and hence, the claimants are entitled for awarding of enhanced compensation by re-appreciation of the evidence brought on record of the case.

Finding recorded by the Tribunal on issue No. 1, having the support of documentary evidence vide Exs. P. 1 to P. 7 is well-founded and even otherwise has remained unchallenged. Fakkirappa Hanamantappa Madar has died due to the fatal injuries sustained in the road traffic accident on 3-6-2010, caused by the rider of the offending motorcycle bearing No. KA-24/K-1074. In the circumstances, keeping in view the rival contentions and the record of the case, only point for determination is, whether the Tribunal has awarded just compensation?

P.W. 1 is the wife of the deceased. P.W. 3 has stated that the deceased was working as a Bar Bender under him and earning Rs. 12,000/- to Rs. 15,000/- per month. Deceased was aged about 32 years and had a large number of dependents-claimants. Evidence on record establishes that the deceased was a bar bender, and there is no dispute with regard to his age on the date of death. However, there is no credible evidence with regard to his earnings. Bar bending work is a skilled job and hence, the income of the deceased has rightly been reckoned at Rs. 4,500/- p.m. The multiplier applicable is 16. Considering the undisputed fact that the deceased was maintaining four dependents, applying the norms laid down in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the deduction towards personal and living expenses of the deceased can be taken at 1/4th. As against such deduction, the Tribunal has applied the deduction of 1/3rd and thus, has committed an error in the matter of quantification of loss of dependency. The claimants are entitled under the head ''loss of dependency'' Rs. 6,48,000/- (3375 x 12 x 16). Evidence on record shows that the claimants had spent Rs. 24,005/-, towards the ''treatment of the deceased''. Under the conventional heads, the award made by MACT is short by Rs. 10,000/-. In all other respects, the findings recorded by the Tribunal are supported by evidence of P.Ws. 1 to 3 and Exs. P. 1 to P. 38. The rider of the offending motorcycle had valid driving licence and the offending vehicle had the insurance coverage as is evident from Exs. R. 1 and R. 2 marked by consent. In the circumstances, the Tribunal is justified in allowing the claim petition but has committed error in the matter of quantifying and awarding just compensation. The appeal filed by the Insurance Company is devoid of merit.

In the result, we hereby order as follows:

(i) MFA CROB No. 707 of 2013 is partly allowed.

(ii) MFA No. 24590 of 2011 is hereby dismissed.

(iii) The impugned judgment and award dated 24-6-2011 passed in MVC No. 1657 of 2010 by the MACT, Saundatti is hereby modified, enhancing the total compensation from Rs. 6,35,000/- to Rs. 7,17,005/-, rounded of to Rs. 7,17,000/-.

(iv) In all other aspects, the award remains intact and undisturbed.