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Judgment
S.N. Satyanarayana
The 2nd respondent insurance company in MVC. No. 410/2008 has come up in this appeal impugning the judgment and award dated 10.2.2009 passed therein. In this appeal, there is also cross objection filed in No. 53/2010 by the claimant before the tribunal seeking enhancement of compensation. The said appeal and cross objection are taken-up together for disposal.
Brief facts leading to the appeal and cross objection are as under:
The claimants before tribunal are respectively mother, elder brother and unmarried sister of deceased Mallesha, who died in a motor vehicle accident which took place on 5.10.2007 at about 7 p.m., due to rash and negligent driving of Canter bearing No. KA- 13/A-355. The accident is not in dispute. The death of Mallesha in the said accident is also not in dispute. It is further not in dispute that claimants are his mother, elder brother and elder sister. In a claim petition tiled by all three of them on appreciation of the pleadings, oral and documentary evidence available on record the tribunal proceeded to accept that deceased Mallesha was an agricultural coolie earning monthly income of Rs. 3,000/- pm., and proceeded to award compensation to claimants in a sum of Rs. 3,36.000/ towards loss of dependency. For the said purpose, depreciation for the upkeep of deceased was taken as 1/3rd and 2/3rd was taken as loss of dependency for claimants. In the said proceedings, a sum of Rs. 45,000/- is awarded towards loss to claimants on account of loss of estate and another sum of Rs. 8,000/- towards funeral expenses and Joss of love and affection.
The 2nd respondent insurance company being aggrieved by the method adopted by tribunal in arriving at the loss of dependency by taking the income of deceased at Rs. 3.000/- and taking only 1/3rd towards the upkeep of deceased and remaining 2/3rd as dependency to claimants, as also in awarding compensation to claimants at Rs. 45,000/- towards loss of estate has come up in this appeal.
Similarly, claimants before the tribunal have come up in cross objection seeking enhancement of compensation on the ground that notional income taken at Rs. 3,000/- p.m., is on lower side and the same should have been taken at Rs. 4,500/- p.m., if not at Rs. 6,000/- p.m., as contended in the claim petition.
Heard the counsel for appellant/insurance company and contesting respondents both in appeal as well as cross objection. On going through the grounds of appeal with reference to the finding of tribunal in the judgment impugned it is seen that claim petition filed by mother, elder brother and elder sister is not sustainable for the reason the elder brother of deceased was not a dependent on him and there is nothing on record to show that he was dependent on deceased for his survival. Therefore, to that extent the claim petition filed is improper.
Further, before the tribunal though claimants have stated chat deceased was earning a sum of Rs. 6,000/- pm., there is nothing on record to demonstrate that he was gainfully employed and that he was earning any income prior to the date of accident. Therefore, in the absence of same, tribunal has taken the notional income of deceased at Rs. 3,000/- p.m., which appears to be just and proper. However, while computing compensation under the loss of dependency tribunal has committed an error. In a case where deceased is a bachelor the amount that is required to be deducted from out of the income of deceased for his upkeep should be 50% and it cannot be 1/3rd. If that is taken into consideration the compensation that should be awarded to claimants under the head loss of dependency would not be Rs. 3,36,000/- and it shall be as follows:-
3000 x 12 x 50% = 18,000 x 14 = Rs. 2,52,000/-
It is further seen that in addition to awarding compensation under the head loss of dependency, tribunal has awarded another sum of Rs. 45,000/- towards loss of estate, which is not permissible. When once loss of income is computed under the head loss of dependency, question of awarding separate compensation under the head loss of estate does not arise. Therefore, the same is required to be disallowed. In the result, the appeal filed by insurance company is allowed in part modifying the compensation by reducing the same from Rs. 3,89,000/- to Rs. 2,60,000/- .
So far as cross objection is concerned, in view of the appeal of insurance company seeking modification of the quantum by reducing the same is allowed, the question of considering claimants cross objection for enhancement of compensation does not arise. Accordingly, cross objection is dismissed.
In view of the compensation being modified, modified compensation is required to be distributed between mother and sister of deceased. So far as 2nd claimant is concerned, he will not be entitled to any compensation. The modified compensation should be distributed between mother and elder sister in the ratio of 2:1, Out of the amount apportioned to mother and sister, 80% of their respective share shall be kept in fixed deposit in any nationalised bank for a period of 5 years with a right to receive interest periodically by them. The balance 20% of their shall be released in their favour.
The excess amount in deposit is ordered to be refunded to the insurance company.