Karnataka High Court
Smt. Lalitha And Another vs Dashanbhat Haribansh Bhat And Others on 4 March, 1998
Equivalent citations: 2000ACJ200, AIR1998KANT344, ILR1998KAR2210, 1998(5)KARLJ27, AIR 1998 KARNATAKA 344, (1998) ILR (KANT) 2210, (1998) 5 KANT LJ 27, (1998) 2 TAC 914, (2000) 1 ACJ 200
Author: Ashok Bhan
Bench: Ashok Bhan, Mohamed Anwar
JUDGMENT Ashok Bhan, J.
1. Being aggrieved by the judgment and award dated 13th June, 1989 passed in MVC No. 882 of 1987 by the Motor Accident Claims Tribunal No. III and II Additional District Judge, Belgaum, this appeal has been filed claiming enhanced compensation for the death of Bahubali Tavanappa Gouranna, in an accident that occurred on 21st October, 1987.
2. The brief facts are:
Deceased was waiting for conveyance to come to Belgaum on the extreme eastern side of the Poona-Bangalore road near Hebbal cross on 21st October, 1987. A tanker bearing No. MWU 3685 driven by respondent 1 in a rash and negligent manner came from opposite side and dashed against the deceased with great speed. Deceased died on the spot due to the said impact. FIR No. 156 of 1987 was registered. Post mortem was got done by Sankeshwar Police in the course of their investigation. The dead body was handed over to the wife and the mother of the deceased, appellants 1 and 2 respectively. It is averred in the claim application that the deceased was 23 years of age at the time of his death. He was hale, hearty and well built. He was the only male member of the family. He was earning Rs. 1,200/- per month by doing attendant's work in the State Bank of Mysore, Vadagaon Branch. The wife, appellant 1, was 19 years of age at the time of the death of the deceased. Total compensation claimed was Rs. 5,00,000/- with interest at the rate of 18% per annum from the date of filing of the application for compensation till its realisation.
3. The driver, owner and the insurer of the tanker were arrayed as respondents 1 to 3 respectively. Driver and the owner of the vehicle remained absent inspite of service and were proceeded ex parte before the Tribunal.
4. Insurance Company filed its objections and denied the averments of the appellants regarding the age, income, status of the deceased and the manner of accident. It was averred that appellants 1 and 2 were not dependant upon the income of the deceased and that the compensation claimed was excessive. It was also averred that without prejudice to the objections raised above, the insurance company was not liable to pay compensation, as the driver of the vehicle did not possess a valid licence on the date of the accident.
5. On the pleadings of the parties the following issues were framed:
1. Whether the petitioners prove that Bahubali Gouranna died due to injuries sustained in the accident that occurred on 21-10-1987 near Hebbal Cross on P.B. Road at about 13-30 hours due to the rash and negligent driving of the tanker bearing No. MWU 3685 by respondent 1?
2. Whether the petitioners prove that they were dependent upon the income of the deceased?
3. Whether respondent 3 proves that respondent 1 was not holding a valid driving licence on the date of accident?
4. Whether respondent 3 proves that respondent 2 has committed breach of conditions of policy and hence, it is not liable to pay the compensation?
5. What is the quantum of compensation to which the petitioners are entitled?
6. What Order?
6. Under Issue No. 1 on the basis of the evidence produced before the Tribunal it was held that accident occurred due to rash and negligent driving of the tanker bearing No. MWU 3685. Issue No. 2 was answered in the affirmative and it was held that appellants were dependant upon the income of the deceased. Issue Nos. 3 and 4 were answered in the negative. K was held that respondent 1 was holding a valid driving licence on the date of the accident. It was also held that owner of the vehicle did not commit a breach of condition of policy. Under Issue No. 5 a total compensation of Rs. 25,800/- along with interest was ordered to be paid to appellants 1 and 2 jointly out of which appellant 1-wife was held entitled to Rs. 17,300/- where as appellant 2-mother was held entitled to compensation of Rs. 8,500/-.
7. It was held that the deceased was drawing a sum of Rs. 1182,30 ps by way of salary. In place of the deceased after one year of his death his wife appellant 1 was given employment on compassionate grounds in the same capacity in which the deceased was working. She was paid the same salary. Compensation for her was determined from the date of accident till she was given employment i.e., for a period of one year. She was held not entitled to the loss of dependency subsequent to the appointment, as she did not suffer any financial loss arising out of the death of her husband, as she was drawing the same salary which her husband was drawing and she would have the same promotional opportunity as the deceased was having. Rs. 5,000/- was given towards loss of consortium. Mother was 60 years of age. She was held entitled to Rs. 100/- per month towards loss of dependency. Annual loss of dependency was determined at Rs. 1,200/-. After adopting a multiplier of 5 the total compensation towards the loss of dependency for her was determined at Rs. 6,000/-. Appellants were held entitled to Rs. 5,000/- towards loss of estate of the deceased. Rs. 2,000/- was awarded towards funeral expenses. Out of the global sum of Rs. 25,800/- the compensation was apportioned between appellants 1 and 2 at Rs. 17,300/- and Rs. 8,500/-respectively.
8. Counsel for the parties have been heard.
9. In our view, the Tribunal has gravely erred in denying the compensation under the head 'loss of dependency' to appellant 1 because of her appointment on compassionate grounds in the place of the deceased. The Tribunal erred in recording a finding that the salary earned by appellant 1 would compensate for the loss of salary which was being earned by the deceased. Whatever salary she got after employment was in lieu of services rendered by her. The same does not mean that there was no loss of dependency. While the husband was earning she must have employed herself gainfully in the house-hold work. Salary earned by the deceased was in lieu of the services rendered by him and because of his death loss was caused to the estate resulting in loss of dependency to the appellants. Salary earned by appellant 1 was due to the work put in by her and could not be adjusted or treated as compensation for the loss of earning of the deceased. Salary earned by appellant 1 could not be equated with the compensation she was entitled to on account of the death of her husband. While determining the compensation under the head loss of dependency/loss to the estate, the Courts have to examine as to what was the loss caused to the estate of the deceased or to the dependants for the income which was contributed by the deceased to them. To the extent of loss of the income which was being contributed by the deceased to the dependants, the dependants are entitled to be compensated. Simply because one of the family members was given employment in the place of the deceased on compassionate grounds, the loss of dependency would not be off-set against the income earned by the dependents from the appointment given to him/her on compassionate grounds. The income earned by the dependant would be for the services rendered by him/her independently of the loss to the estate caused due to the death of the deceased.
10. As per the salary certificate, the income of the deceased was Rs. 1182.30 ps. After deducting Yard towards his personal expenses the loss of dependency per month comes to Rs. 800/-. The yearly loss of dependency comes to Rs. 9,600/-. Adopting a multiplier of 16 keeping in view the age of the deceased which was only 23, the compensation for loss of dependency comes to Rs. 1,53,600/-. A sum of Rs. 10,000/- are granted towards loss of consortium, to appellant 1, Rs. 6,000/ are given towards loss to the estate and Rs. 3,000/- towards funeral expenses. The total compensation comes to Rs. 1,72,600/- which is rounded off to Rs. 1,73,000/-. It is held that appellants 1 and 2 are entitled to a total compensation of Rs. 1,73,000/- payable by the respondents jointly and severally. Appellants shall be entitled to interest at the rate of 9% per annum from the date of accident till its realisation.
11. Appeal is accepted to the extent indicated above and the award modified accordingly with costs which are determined at Rs. 500/-. Appellant 1 was 19 years of age at the time when her husband died, where as appellant 2 was 60 years of age at that time. Keeping in view their age and the fact that 10 years have elapsed from the date of accident, the compensation awarded is apportioned in the ratio of 80:20 between appellants 1 and 2 respectively.