Smt. T.S. Rukmani and anr. Vs. M.B. Aiyappa and ors. - Court Judgment

H.G. Ramesh, J.

1. This appeal is by the claimants seeking for enhancement of compensation.

2. It is relevant to notice the brief facts leading to the filing of this appeal. While the deceased viz., T.K. Shivaram was walking by the side of the road on 24-7-1997 near the private bus station at Veerarajpet town, the bus bearing Registration No. KA-12-2159 came from behind and dashed against him resulting in serious injuries. He succumbed to the injuries in the hospital on 20-8-1997. In due course, the widow and son of the deceased filed a claim petition for compensation in M.V.C. No. 123 of 1997 and the brother of the deceased also filed a claim in MVC No. 136 of 1997.

3. The Tribunal, after holding inquiry, by a common judgment in respect of the aforesaid two claims held that the deceased died due to the accident and the said accident was due to rash and negligent driving of the bus and accordingly by the impugned judgment awarded a compensation of Rs. 35,000/- with interest at 6% per annum to the widow and son of the deceased in M.V.C. No. 123 of 1997 and similarly awarded Rs, 15,000/- with interest at 6% per annum to the brother of the deceased in M.V.C. No. 136 of 1997. The award amount was made payable jointly and severally by the owner and insurer of the bus.

4. The present appeal has been filed by the widow and son of the deceased, who were claimants in M.V.C. No. 123 of 1997, seeking for enhancement of compensation.

5. The finding recorded by the Tribunal that the accident was due to rash and negligent driving of the bus has become final and was not disputed by the respondents before us.

6. The only question that arises for consideration is as to whether the appellants viz., the claimants in M.V.C. No. 123 of 1997 are entitled for enhancement of compensation.

7. We have heard learned Counsels appearing for the parties.

8. The Tribunal has not awarded any compensation under the head 'loss of dependency' on the ground that the appellants/claimants i.e., widow and son of the deceased were not living with the deceased and were not factually depending on him prior to the accident. It is true that the evidence on record suggest that the claimants in M.V.C. No. 123 of 1997 were not living with the deceased prior to the accident.

9. learned Counsel appearing for the appellants submitted that the Tribunal was not right in law in denying compensation to the appellants towards 'loss of dependency'. On the contrary, learned Counsel for Insurance Company supported the impugned judgment and award.

10. In the light of the above submissions, we will have to consider the short but interesting question of law as to whether the approach of the Tribunal in not awarding compensation to the appellants who are the widow and son of the deceased towards 'loss of dependency' was correct in law?

11. As noticed above, the widow was not living with her deceased husband. But there is no evidence on record to show that appellant 1-widow of the deceased was judicially separated or that she was self-reliant. She remained to be the legally wedded wife of the deceased till his death. Hence, the deceased had the obligation in law to maintain her. Accordingly, in law, the widow, though was living separately should be deemed to be a 'dependent' on the income of the deceased as the deceased had the legal obligation to maintain her till the date of his death. Accordingly, in our opinion, she is entitled to be compensated under the head 'loss of dependency' also. This aspect could be examined from another angle also. Appellant 1/widow of the deceased had the right in law to obtain maintenance from the deceased during his lifetime. Hence, her right to obtain maintenance subsisted as on the date of death of the deceased. As the widow had no source of income on her own and as the deceased had the statutory duty to maintain her and the widow had the statutory right to obtain maintenance from her deceased husband, we see no legal impediment to treat her as a 'dependent' and also as a 'legal representative' of the deceased within the meaning of Section 166(1)(c) of the Motor Vehicles Act, 1988, for purposes of assessing compensation in a motor accident claim proceeding under the Motor Vehicles Act, 1988, We also find support to our aforesaid view from a judgment of the Punjab and Haryana High Court in Sachdeva Rice Mills and Ors. v. Raj Anand and Ors., 1987ACJ 821(Pand H). The following observations made therein require to be noticed:

'11. It is no doubt true that no amount was being paid by Mohinder Partap Gupta to his wife or daughter for their maintenance or otherwise. It has to be borne in mind, however, that both the wife and the daughter had a right to claim maintenance from the deceased both under the Hindu Adoptions and Maintenance Act, 1956, as also under Section 125 of the Code of Criminal Procedure. Indeed, it is well-settled that the father is under a legal obligation to maintain his child and the husband to maintain his wife and that the onus lies on him to allege and prove that his wife and the child are not entitled to the maintenance claimed. Not only this, Section 22 of the Hindu Adoptions and Maintenance Act, 1956, specifically provides that the liability for maintenance can be enforced against the estate of the deceased in the hands of his heirs. This being so, it must be held that there was a subsisting right in Raj Anand and her daughter to claim maintenance from the deceased during his lifetime and further by virtue of being his heirs they were also entitled to succeed to his estate in their own right. It cannot, therefore, be said that they are not entitled to any compensation. It may be mentioned here that the opposing Counsel could point to no material on record to suggest that Raj Anand or her daughter had in any manner disentitled themselves to maintenance or to succeed to the property left behind by Mohinder Partap Gupta'.

12. With regard to the second appellant i.e., the son of the deceased, we do not see any error committed by the Tribunal as the evidence of his mother i.e., the first appellant would show that he was a manual labourer by occupation and accordingly we hold that the deceased had no obligation in law to maintain his son who had attained majority and who was self-reliant.

13. This takes us to the quantum of compensation which the first appellant is entitled to.

14. There is no acceptable evidence on the aspect of deceased's income though the evidence disclose that he was a vegetable vendor. In the absence of evidence, we deem it reasonable to assess his average annual income at Rs. 15,000/- and on the facts of this case, we assess the annual loss of dependency to the first appellant (widow) at Rs. 7,500/-. Ex. P. 3-post-mortem report shows that he was aged 50 years. By adopting a multiplier of 11 which is appropriate to the age of the deceased, the total loss of dependency comes to Rs. 7,500 x 11 = Rs. 82,500/-. To this we add Rs. 5,000/- towards loss to estate, Rs. 5,000/- towards loss of consortium and Rs. 3,000/- towards funeral expenses. Accordingly, the first appellant is entitled to Rs. 95,500/-. Since the Tribunal has awarded Rs. 10,000/- to her, she shall be entitled for the remaining amount of Rs. 85,500/- as additional compensation.

15. On the peculiar facts of this case, we do not disturb the award of Rs. 25,000/- to the second appellant i.e., the son of the deceased and also Rs. 15,000/- awarded to the brother of the deceased who was claimant in M.V.C. No. 136 of 1997.

16. In the result, we make the following order:

(i) Appellant 1 is held to be entitled to an additional compensation of Rs. 85,500/- along with 8% interest from the date of claim petition till the date of deposit. It is made clear that this additional compensation is in addition to the amount already awarded to her by the Tribunal,

(ii) Respondent 3-United India Insurance Company Limited is directed to deposit the enhanced amount with the Tribunal within 12 weeks from today.

(iii) 80% of the enhanced amount is directed to be deposited in the name of appellant 1 in fixed deposit for a period of 5 years in any nationalised Bank of her choice and she is entitled to draw periodical interest accruing thereon.

(iv) In all other respects, the judgment and award of the Tribunal shall stand affirmed.

The appeal is allowed in part in the above terms. No costs.