Smt. Vijaya W/O Balasaheb Kulkarni and ors. Vs. Smt. Rukhmini Bai W/O Apparao Kulkarni and ors. - Court Judgment

1. The judgment and award dated 22-05-1997 passed in MVC No. 621/1992 by the Prl. Civil Judge and Addl. MACT, Belgaum, has been assailed by the claimants seeking enhancement of compensation in the matter relating to death of husband of the first appellant and father of appellants 2 to 4. In fact, the mother of the deceased, one of the dependants, was also in the party array when the claim was instituted, but she expired at the stage of appeal.

2. The claimants have basically challenged the award pointing out inadequacy in determining the loss of dependency to the claimants. As the respondent owner and the Insurer of the offending vehicle have not challenged the award, we confine our determination only to the points urged on behalf of the claimants regarding quantification of loss of dependency as also grant of compensation under the conventional heads.

3. The case of the claimants is that on 21-02-1992 at about 1-00 PM Balasaheb Kulkari, a practicing Advocate was proceeding on Poona Bangalore Road, Belgaum City. As he reached a corner a truck bearing registration No. TAS 4200 driven by its driver - first respondent in a rash negligent and recklessly at a high speed hit against him, as a result of which he suffered Injuries and was Immediately shifted to KLE Hospital, where first aid has been administered to him. Thereafter, he was under treatment and on 27-03-1992, he succumbed to grievous injuries sustained in the accident occurred on 21-02-1992, resulting in total loss of dependency to the claimants, who are mother, wife and children. The claimants claim pecuniary compensation on the basis he had a regular income of Rs. 3,000/- from legal practice and was a very affectionate husband and father. He wished to educate his children and therefore, was contributing entire earning to the family. They also mentioned about expenditure incurred by them to provide him treatment to save his life. They contend that they are entitled for a global compensation of Rs. 7 lakh.

4. The claim was resisted by the respondents, namely, owner and Insurer of the offending truck. But, having taken into consideration the evidence brought on record through the testimony of the witnesses, namely, the claimant No. 1 - wife Smt. Vijaya and the eye witness PW3 - Machuar Marutirao Kadam, PW4 - Yellappa Kallappa Melage and also PW5 - Dr. Dinesh Rajaram Kale and having examined the documents relating to the road traffic accident recorded by the jurisdictional police during Investigation, marked in evidence as Ex.P5 - FIR and Complaint, Ex.P4 -MVI report and Ex.P2 - Spot Panchanama, the Tribunal concluded with certainty that such evidence establishes rash and negligent act of the driver of the offending vehicle and consequently fastened actionable wrong upon him. The Tribunal noticed that despite grant of opportunity to resist the accusation and allegation of rashness, the driver as also the owner, did not participate in the proceedings not tendered any evidence. The conclusion so arrived has not been challenged by the respondents and therefore, we are considering only inadequacy of the compensation.

5. It was urged by the claimants' counsel that the Tribunal has seriously erred in determining the Income of the deceased only at Rs. 2,000/- per month as against Rs. 4,000/- per month mentioned by the claimant (PW1) in her evidence. Also, it was urged that the Tribunal has failed to consider the fact that the deceased had prospects of better earning in future as he has already to his credit several years of practice as an Advocate. Therefore, the minimum income the deceased could have had should have been fixed at Rs. 4,000/-. It was further urged that the reduction of 1/3rd out of income was irrational, as evidence would indicate that the deceased was contributing the entire Income to the family.

6. We have examined grounds urged and reasonings assigned by the Tribunal. The Tribunal has noted in para-11 of its order that the evidence of PW1 and 2, wife and mother of the deceased, and also the evidence of PW3 established that the deceased was practicing Advocate in the District Head Quarters at Belgaum. He was meeting the entire expenses of the family and was particularly doing his best to educate his children, who were studying in convents. The monthly fee paid towards their education as also charges paid for conveyance was clearly brought on record by these witnesses. Though the Tribunal has examined the said evidence, the Tribunal felt that the income of the deceased spoken to by PW1 was an exaggeration. He therefore, has rejected that deceased had Income of Rs. 4,000/- and has taken income of the deceased at Rs. 2,000/- per month. Such reasoning of the Tribunal is not supported by any reasons.

7. We are satisfied that the Tribunal has failed to notice that the deceased was aged about 53 years and was in the prime of his health. A practicing Advocate at that age certainly has better prospect and consequently would have better earning. It is undisputable that experience at Bar is an asset to a practicing Advocate and enlarges scope of practice. Like any other profession maturity of mind, experience in the profession, are contributory factors for an individual to have better prospects. In the instant case, when the Tribunal had accepted the evidence regarding avocation of the deceased, it is incumbent that the Tribunal should have been taken into consideration the fact that had the deceased survived his income would have increased. Having not applied its mind to these aspects the Tribunal has irrationally fixed the income of the deceased at Rs. 2,000/- per month.

8. At this juncture, it is pertinent to note that the counsel for the insurer drew our attention to the fact that the claimants had themselves mentioned in the claim petition that the deceased had an income of Rs. 3,000/- per month. There is no dispute from the claimants regarding this aspect but the fact remains that at the time of filing the claim petition they had no doubt mentioned the income of the deceased at Rs. 3,000/- but while determining the fair compensation the Tribunal is required to take into consideration the future prospects and prospect of the deceased having a better income in future had he survived. At the same time, we cannot ignore the fact that the claimants had sought for global compensation of Rs. 7,00,000/-. In these circumstances, the Tribunal should have taken into consideration all material aspects and then arrived at an amount which could be taken as an earning of the deceased from his profession. Fixation of his income at Rs. 2,000/- per month is certainly not Justified.

9. In this regard the learned Counsel for the appellants has rightly relied on the decision of the Apex Court in the case of Sneha Dutta and Ors. v. Himachal Road Transport Corporation and Anr. reported in 1999 ACJ 1589, where the Apex Court considering the claim regarding death of sole bread earner has held thus:

In our view, the appropriate award of compensation to the heirs of the deceased who died during a motor accident would work out at least up to Rs. 4,00,000 in all instead of Rs. 2,75,000 as awarded by the High Court by reducing the figure of Rs. 5,60,000 as awarded by the trial Court. The reason is obvious. The appellants' breadwinner who died because of the unfortunate accident, was drawing a monthly salary of Rs. 4,000 as held by the Tribunal. Even deducting an amount of Rs. 1,500, Rs. 2,500 would have been the economic benefit available to the heirs of the deceased and if the deceased had survived the rest of earning career, he would have made available to his dependants at least Rs. 5,000/- per month. Adding Rs. 5,000 to Rs. 2,500/- the total would work out to Rs. 7,500. Reducing it to over the years the average economic loss to the dependants would work out to Rs. 3,500 per month and even deducting Rs. 500 therefrom as personal expenses of the deceased, Rs. 3,000 would have been available to the appellants per month and multiplying by 12 the annual economic benefit would work out at Rs. 36,000 and considering the remaining earning years of the deceased had he survived the multiplier of 12 would yield at least Rs. 4,00,000 as total compensation, If not more.

10. Thus, taking into consideration all attending circumstances and the fact that even though the claimants had mentioned income of the deceased at the time of his death as Rs. 3,000/- per month but they had sought global compensation of Rs. 7,00,000/- and the fact that had the deceased survived his past experience and standing at Bar would have placed him in a position to have better prospects, Rs. 4,000/- per month would be the reasonable amount to be fixed as the income of the deceased.

11. Secondly, the evidence of the claimants shows that the deceased was doing all that was possible within his might to see that his children are groomed and properly educated. The fact that he was striving to give them to have best possible education in convents at heavy expenses shows that his contribution to the family would have been substantial.

12. This is one such case where the straight away deducting 1/3rd towards his personal expenses out of determined Income might not be proper in view of the evidence on record. Therefore, applying unit method would be a just proposition as held in the case of General Manager, KSRTC v. Vijayalakshmi reported in ILR 1986 KAR 2254. The relevant observations are:

There is no hard and fast rule about the extent of the deduction to be made towards the personal and living expenses of the deceased. It all depends upon the facts and circumstances of each case. In some English cases 70% of the earnings has been suggested as the value of dependency. But it all depends on the extend of income, the size and standards of living of the family and habits of the deceased. If the deceased was devoted to the family and had no expensive habits and lead a spartan life, deduction on this score, would, relatively be less. If on the contrary the deceased was a Bohemian and a spend-thrift and had many favorite follies, the deduction towards expenses of living and for his pleasures should be accommodated by appropriate deductions. That depends on the evidence on record as to the life style and personal habits of the deceased. No hard and fast rule, applicable to all cases, could be made as to what amount or what percentage of income, should be deducted for such living and personal expenses

13. The unit method evolved by the Apex Court in the case of UP State Road Transport Corporation v. Trilok Chandra and Ors. reported in ILR 1996 KAR 2127, could be applied. On such application, we find that in the instant case there are totally six claimants. Wife, mother and first daughter Meena are majors. The other three claimants Kum. Veena, Vinayaka and Shekar are minors. Thus the units of major claimants would be 6 (3X2) and the units for minors would be 3 (3X1). The unit applicable to the deceased would be two. Therefore, total units would be 11. The deduction permissible is two units out of 11 plus Rs. 250/-. The income of the deceased is determined at Rs. 4,000/-. The value of each unit would be Rs. 363.60. The value of two units (Rs. 727=20ps) plus Rs. 250/- deductible towards expenses of the deceased would be Rs. 977=20ps, which is rounded of to Rs. 977/-. Therefore, the loss of dependency to the family would be Rs. 3,023/- (Rs. 4,000/- minus Rs. 977/-), which is rounded off to Rs. 3,025/-. Annually it would be Rs. 36,300/-(Rs. 3,025/-X12). The deceased was aged 53 years. The multiplier applied by the Tribunal is 11, but the proper multiplier applicable would be 12. Thus, the loss of Income would be Rs. 4,35,600/- (Rs. 36,300/- X 12). Thus, determination of loss of dependency fixed by the Tribunal at Rs. 1,76,000/- is certainly inadequate and it needs to be modified. Accordingly, the claimants would be entitled to loss of dependency at Rs. 4,35,600/-.

14. We have also examined the award of compensation by the Tribunal under conventional heads. The Tribunal has awarded Rs. 10,000/- towards loss of consortium to the wife. The amount awarded towards loss of consortium to the wife is on the lower side and hence the same is enhanced to Rs. 15,000/-. The award of Compensation in a sum of Rs. 5,000/- towards loss of estate, is reasonable and it is confirmed. But, we find that award of Rs. 2,000/- towards funeral expenses and other obsequies ceremony is on the lower side, which is increased to Rs. 5,000/-.

15. It is noticed that the Tribunal has not awarded any amount towards loss of love and affection to the children, who were in the age group of 9 to 13 years. Therefore, it would be reasonable to award them a sum of Rs. 5,000/- each. In all, it will be Rs. 20,000/- under this head.

16. The Tribunal has considered medical evidence and has awarded a sum of Rs. 6,600/- based on the actual proof and a sum of Rs. 3,600/- towards transportation expenses and special diet. In all, the Tribunal has awarded under this head is Rs. 10,200/-. But, if we consider the evidence, the deceased had survived for 36 days after accident and was under constant treatment, naturally the family members and the attendant must have incurred expenditure, which has been ignored by the Tribunal. Therefore, we enhance the award from Rs. 10,200/- to Rs. 15,000/- under this head.

17. Thus, the claimants would be entitled to the following amounts:

a)

Lossof dependency

Rs. 4,35,600/-

b)

Lossof consortium

Rs. 15,000/-

c)

Lossof love and affection

Rs. 20,000/-

d)

Lossof medical & other expenses

Rs. 15,000/-

e)

Funeralexpenses

Rs. 5,000/-

f)

Lossof estate

Rs. 5,000/-

Total

Rs. 4,95,600/-

The said amount of Rs. 4,95,600/- is rounded off to Rs. 4,96,000/-, as against an amount of Rs. 2,28,200/- as awarded by the Tribunal.

18. It is noticed that the claimant No. 6, who is mother of the deceased Smt. Rukminibai, died during the pendency of the appeal. However, her legal representatives were to be brought on record. But, the appeal came to be dismissed against her as there was no proper steps taken by the appellant. Yet the facts would show that she expired after passing of the award, but before final adjudication of the claim of the compensation. The amount awardable as compensation in a fatal accident case is to sustain the dependents by granting them loss of dependency. The mother having died, unfortunately before she could reap the fruits of the award and as it is shown that she was depended upon the deceased, who is non-else than the husband and father of the claimants herein, the allocation of amount to mother has now to be re-apportioned to the surviving claimants towards loss of dependency.

19. Based on the discussions in the foregoing paras, the appeal partly succeeds. The award of the Tribunal stands modified to the extent indicated in the order. Rest of the directions contained in the award with regard to apportionment of the compensation and rate of interest, are maintained. The respondents are granted four weeks time, from the date of receipt of the copy of the order, to deposit the amount.