B.R.Sunitha v. Badreshappa.K.Kusalpur

(By Shri. Kalimullah Shariff, Advocate for R1; Shri. A.N.Krishnaswamy, Advocate for R2) ****** ... Respondents This MFA is filed U/S 173(1) of MV Act against the Judgment and Award dated: 09/09/2009 passed in MVC No. 605/2008 on the file of the II Additional Civil Judge(Sr.Dn), Additional Motor Accident Claims Tribunal, Chitradurga, partly allowing the claim petition for compensation and seeking enhancement of compensation with interest at 12% p.a. This MFA coming on for Hearing, this day, the Court delivered the following: J U D G M E N T This appeal by the claimants is directed against impugned judgment and award dated 9th September 2009, passed in MVC No.605/2008, by the II Additional Civil Judge(Sr.Dn), Additional Motor Accident Claims Tribunal, Chitradurga, (for short, ‘Tribunal’ ) for enhancement of compensation on the ground that, the compensation of `11,77,000/-, awarded in their favour as against their claim for `20,00,000/-, is inadequate. 3

2. The facts in brief are that, the claimants are the wife, mother and minor son of the deceased N. Mahesh. They filed the claim petition under Section 166 of the Motor Vehicles Act, contending that, at about 7:45 P.M, on 10-03-2008, when the deceased N. Mahesh was coming in his Motor Cycle bearing Registration No. KA-16/K-8383, from Bheemasamudra towards Chitradurga, near Hireguntanur village, on Madras Road, Bangalore, he met with an accident, on account of rash and negligent driving by the driver of Lorry bearing No.KA-30/3468. Due to the impact, the deceased fell on the road, sustained grievous injuries to his head, abdomen and all over the body. Immediately, the deceased was shifted to Government Hospital, Chitradurga, where the Doctors confirmed the death of the deceased N. Mahesh.

3. It is the case of the appellants that, the deceased was aged about 31 years and working as Junior Assistant in BESCOM, Hireguntanur, drawing salary of a sum of `15,000/- per month and was hale 4 and healthy prior to the accident. On account of the untimely death of the deceased, the appellant No.1 has lost the life partner at young age, appellant No. 3 has lost the love and affection, inspiration and guidance from its father and appellant No.2, being mother has lost the social, financial and moral security and is also deprived of seeing the progress and future of her son and therefore, they have to be compensated reasonably.

4. On account of the death of the deceased, the appellants filed the claim petition before the Tribunal, seeking compensation against the respondents. The said claim petition had come up for consideration before the Tribunal on 9th September, 2009. 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 `11,77,000/- under different heads, with 6% interest per annum, from the date of petition till the date of payment. Being dissatisfied with the quantum of compensation awarded by the Tribunal, 5 appellants are in appeal before this Court, seeking enhancement of compensation.

5. I have gone through the grounds urged in the memorandum of appeal and heard the learned counsel appearing for appellants and also the Insurer, for quite some time.

6. Learned counsel appearing for appellants at the outset submits that the Tribunal grossly erred in assessing the monthly income of the deceased at `10,000/-, when in fact, as per Ex.P7, salary Certificate, for the month of February 2008, just prior to the date of accident in March 2008, the deceased was getting gross salary of `10,209/- per month. Further, he submits that as per the decision of the Hon’ble Supreme Court in Sarla Verma’s case (2009 ACJ 1298), the claimants are entitled to additional 50% of the income towards future prospects of the deceased towards loss of dependency, as the deceased was aged about 31 years and in the secured job. Therefore, he submits reasonable income of the deceased may be re-assessed, 6 adding 50% towards future prospects, deducting 1/3rd towards personal expenses and adopting multiplier of ‘16’ having regard to the age of the deceased, the compensation may be awarded towards loss of dependency and also under conventional heads and the impugned judgment and award may be modified accordingly.

7. Per contra, learned counsel appearing for the Insurer submits that the compensation awarded by Tribunal is after due appreciation of the oral and documentary evidence available on file and hence, it does not call for interference. However, he does not dispute regarding the decision of the Apex Court in Sarla Verma’s case regarding addition of 50% towards future prospects of the deceased and fairly submits that the same may be considered in accordance with law.

8. After hearing the learned counsel appearing for both the parties and after perusal of the impugned judgment and award passed by Tribunal, including the 7 original records placed before me, the only point that arise for my consideration in this appeal is, “Whether the compensation awarded by Tribunal is just and reasonable?” After going through the material placed before me, it emerges that occurrence of accident and the resultant death of the deceased in the road traffic accident are not in dispute. It is also not in dispute that the deceased was aged about 31 years and working as Junior Assistant in BESCOM. As per Ex.P7, salary certificate, pertaining to the month of February 2008, just prior to the accident, the deceased was getting salary of `10,209/- per month. Out of this, if a sum of `200/- is deducted towards professional tax, the net income comes to `10,009/- per month. As rightly pointed out by the learned counsel appearing for appellants, another 50% is to be added towards future prospects of the deceased as per the law laid down in Sarla Verma’s 8 case (supra). Accordingly, if 50% (i.e. `5,004/-) is added to the aforesaid salary of the deceased, the total income comes to `15,013/-. Since the number of dependents are three, 1/3rd is to be deducted towards the personal and living expenses of the deceased as per Sarla Verma’s case (supra). If 1/3rd (i.e. `5,004/-) is deducted from it, the net income comes of `10,009/-. Further, as the deceased was aged about 31 years at the time of accident, the appropriate multiplier applicable is ‘16’, in view of the aforesaid judgment. Thus, the compensation towards loss of dependency would work out to `19,21,728/- (i.e. `10,009/- x 12 x ‘16’) as against `11,52,000/- awarded by Tribunal.

9. Further, so far as compensation awarded towards conventional heads, i.e. loss of consortium, loss of estate, loss of love and affection and transportation of dead body and funeral expenses is concerned, I am of the considered view that a sum of `25,000/- awarded under the said heads is on the lower side and as per the decision of the Apex Court in Sarla Verma’s case 9 (supra), I award a sum of `45,000/- under the conventional heads as against `25,000/- awarded by Tribunal. Thus, compensation payable appellants `19,66,728/- against `11,77,000/- awarded by Tribunal with interest at 6% per annum, from the date of petition till the date of realization. There would enhancement compensation by a sum of `7,89,728/-.

10. At this stage, Shri.A.N. Krishna Swamy, learned counsel appearing for Insurer vehemently submits that the first appellant/wife of deceased is not entitled to enhancement of compensation on the ground that she has got employment on compassionate grounds, on account of the untimely death of her deceased husband. The said submission of the learned counsel cannot be accepted nor the same holds any water, for the reason that in view of the well settled law laid down by the Hon’ble Apex Court and this Court in catena of decisions, mere securing appointment on 10 compassionate grounds will not take away legitimate entitlement of the claimants in getting compensation on account of the untimely death of the deceased person traffic accident. Admittedly, the deceased has left behind wife, aged mother and minor son, who was aged only about 1½ years at the time of accident. Whole burden is left on the shoulders of the wife to maintain the family and bringing up of the minor son apart from looking after the aged mother in law. Therefore, the said submission of the learned counsel for Insurer is hereby rejected.

11. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellants is allowed in part. The impugned judgment and award dated 9th September 2009, passed in MVC No.605/2008, by the II Additional Civil Judge(Sr.Dn), Additional Motor Accident Claims Tribunal, Chitradurga, is hereby modified, awarding a sum of `7,89,728/-, with interest at 6% per annum, from the 11 date of petition till the date of realization, in addition to the compensation awarded by Tribunal. The second respondent – Insurer is directed to deposit the enhanced compensation of `7,89,728/-, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment. On such deposit by the Insurer, a sum of `3,00,000/- with proportionate interest shall be invested in the name of the first appellant- wife of deceased, in Fixed Deposit, in any scheduled/ Nationalized Bank, for a period of ten years, renewable by another ten years, with liberty reserved to her to withdraw the periodical interest. A sum of `3,00,000/- with proportionate interest shall be invested in the name of the third appellant- minor son of deceased, in Fixed Deposit, in any scheduled/ Nationalized Bank, till he attains the age of 25 years, with liberty reserved to the mother – appellant No.1 to withdraw the periodical interest till the son 12 attains the age of 20 years and thereafter, appellant No.3 is entitled to withdraw the periodical interest. A sum of `1,00,000/- with proportionate interest shall be invested in the name of the second appellant – mother of deceased, in Fixed Deposit, in any scheduled/ Nationalized Bank, for a period of five years, renewable by another five years, with liberty reserved to her to withdraw the periodical interest. Remaining sum of `89,728/- with proportionate interest shall be released in favour of the appellant Nos.1 and 2, in equal proportion, immediately. Office to draw award, accordingly. SD/- JUDGE BMV*