IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2017 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.4218/2014 (MV) BETWEEN SMT AMMAKKA W/O LATE BACHI PUJARI, AGED ABOUT 79 YEARS, (MOTHER OF THE DECEASED) NO.2-2, KUNDRABARANDI VILLAGE WARD, F-1 AND 2, DISTRICT PANCHAYATH HIGH SCHOOL, KUNDRABARANDI, KUNDAPUR TALUK, UDUPI DISTRICT.-576235. ... APPELLANT (BY SRI CHANDRASHEKAR RODNAVAR, ADVOCATE) AND 1. ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. NO. 186/7, RAGHVENDRA COMPLEX, WILSON GARDEN 1ST CR0SS, HOSUR MAIN ROAD, BANGALORE-27, VIDE POLICY NO. VC00104592000100 VALID FROM: 20/07/2010 TO 19/7/2011. VEHICLE BEARING NO.KA-41-8998.
2. SRI. KANNAJI GOWDA R/O #871/A, 2ND FLOOR, SBM COLONY 4TH CROSS, 13TH MAIN, BSK 1ST STAGE, BANGALORE-50.
3. SMT. JAYANTHI W/O LATE. CHIKKAIAH POOJARI AGED ABOUT 45 YEARS, 4. RAJESH S/O LATE CHIKKAIAH POOJARI AGED ABOUT 28 YEARS, 5. NAGARATHNA D/O. LATE CHIKKAIAH POOJARI AGED ABOUT 25 YEARS, 6. ASHOK S/O LATE. CHIKKAIAH POOJARI AGED ABOUT 22 YEARS, ABOUT 20 YEARS BACK R-3 TO R-6 WERE R/AT, VANASE GRAME, ADAKE KUDLU, KUNDAPURA TALUK UDUPI DISTRICT KARNATAKA STATE. ... RESPONDENTS (BY SRI RAVI S SAMPRATHI, ADVOCATE FOR R1 NOTICE TO R2 TO R6 ARE D/W V/O DATED 14.01.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:06.03.2014 PASSED IN MVC NO.5126/2011 ON THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred by one Ammakka/1st petitioner for enhancement of compensation granted under the judgment and award dated 06.03.2014 passed in MVC No.5126/2011 by the XVI Additional Judge, Court of Small Causes and Member, MACT, Bangalore City.
2. In order to avoid confusion and overlappings, parties are hereinafter referred to with reference to their respective rankings as stood in the Tribunal.
3. Thus on filing the appeal, learned counsel for appellant submits that, respondent Nos. 3 to 6, petitioner Nos. 2 to 4 did not join the appellant/petitioner No.1 for preferring the appeal for enhancement of compensation. However, respondent No.3, wife of late Chikkaiah Poojari and respondent Nos. 4 to 6 being his children are also entitled for enhanced compensation.
4. This appeal pertains to an accident wherein the petitioner No.1 Ammakka and three others preferred claim petition for compensation by virtue of the death of one Chikkaiah Poojari who was said to be working as Head Cook in Hotel Krishna Upahar at Hebbal and on 1.5.2011 at about 12.40 a.m., Chikkaiah Poojari was crossing Bellary Airport Road opposite to Godrej Apartment near to Kempapur, Hebbal Road, at that time, a city taxi/car bearing registration No. KA.41.8998 was driven in a rash and negligent way by its driver and dashed against Chikkaiah Poojari, who had suffered serious injuries including head injuries. He has taken preliminary treatment at Baptist Hospital and later he was shifted to Bowring hospital, Shivajinagar, Bengaluru. But, Chikkaiah Poojari succumbed to the injuries at 3.30 a.m. It is in this connection petitioner No.1 Ammakka and three others have filed the petition for compensation in view of loss of dependency and other counts.
5. Petitioner No.1 is the mother, 2nd petitioner is the sister, petitioner Nos. 3 and 4 are the younger brothers, respondent No. 3 to 6 are the widow and children of Chikkaiah Poojari.
6. The Insurance Company appeared and filed written statement. Respondent 3 to 6 are set exparte.
7. The Tribunal, considered the matter on accident, injury, death, loss of dependency and entitlement for compensation and allowed the claim petition in part granting Rs.6,64,000/- together with interest at 6% p.a. from the date of petition till its realization. The learned Member has dismissed the petition in respect of the claim made by the petitioner Nos. 2,3 and 4 and held that respondent Nos. 1 and 2 are jointly and severally held liable to pay compensation. Insofar as compensation of Rs.6,64,000/- is concerned, learned Member held that petitioner No.1 Ammakka who is the appellant herein, respondent Nos. 3 to 6 before the Tribunal/respondent No.3 to 6 herein are entitled for the compensation in the ratio of 20% each and the liability is finally fastened on the Insurance Company.
8. In the present circumstances, before adverting the attention on the substantial aspect, it is necessary to place on record certain set of facts which have impact directly on the aspect of entitlement for compensation in this case.
9. Chikkaiah Poojari who met with an accident on 1.5.2011 at 12.40 a.m., while crossing Bellary Airport road, after sustaining serious injuries and succumbed to the injuries at 3.10 a.m. Insofar as petitioners are concerned, Ammakka and three others are the mother, sister and brothers of Chikkaiah Poojari. But it was not only the petitioners who claim exclusive entitlement for compensation, respondent No.3 being the wife, respondent Nos.4 to 6 being the children of Chikkaiah Poojari and may be due to hostility or otherwise they have not joined the petitioners for presenting the claim for compensation. However, they are made as respondent Nos. 3 to 6 even in the petition. They are set exparte before the Tribunal also and no exception in this appeal as they remained not contested sofar and the learned counsel for the appellant has filed a memo for dispensation of notice and that was allowed, assuming that notice to them are not issued by virtue of the submission of the learned counsel for the appellant that they are out of purview of the appeal, as neither they have responded nor denied in the wisdom of the appellant. Insofar as the sister and brothers who are petitioner Nos. 2,3 and 4 are concerned, they have not joined in preferring the appeal. In this connection, it is necessary to mention that claim was dismissed against petitioner Nos. 2 to 4.
10. Now the data available in respect of deceased Chikkaiah Poojari is as under:
Name: Chikkaiah Poojary, S/o Bachi Pujari, Age : 49 years, Occ. : said to be head cook in Krishna Upahar Earning capacity: Rs.9,000/- per month.
Death : due to the accident on account of rash and negligent driving by Car bearing Reg.No.KA.41.8998 The Tribunal considered the notional income at Rs.4,000/- per month. Taking monthly income at Rs.4,000/-, annually at Rs.48,000/-, deducting 1/4th (Rs.12,000/-) towards personal and living expenses, adding 30% (Rs.10,800/-) towards future prospects, and applying 13 multiplier, awarded Rs.6,24,000/- towards loss of dependency and also awarded Rs.40,000/- towards conventional heads. The break up of the compensation awarded by the Tribunal is as under:
Loss of income/dependency (48,000 x 13) Loss of consortium ( to be paid to the respondent No.3) Rs.6,24,000/- Rs. 10,000/-
Loss of love and affection Rs. 10,000/- Loss of estate Rs. 10,000/-
Transportation and cremation of dead body Rs. 10,000/-
Total Rs.6,64,000/-
11. In this case, it is necessary to clarify that the loss of dependency is not to the extent what is claimed by the petitioners, however, in the interest of just compensation. Thus on marshalling the evidence and the percentage of compensation ordered, appellant/petitioner No.1 in proceedings before the Tribunal is entitled for 20% or 1/5th. However, enhancement of compensation is sought by petitioner No.1, Ammakka and not the widow and children of deceased Chikkaiah Poojari. Regard being had to the fact that claim of siblings i.e. petitioner Nos. 2 to 4 stands dismissed by the judgment and award of the Tribunal. Even in appeal, the widow and children of Chikkaiah Poojari, though entitled for compensation have not raised their voice. Now in the capacity of respondents they have not placed their appearance for the reasons best known to them. Even if they did not participate the proceedings in this appeal, regard being had to the fact that they are given up by the learned counsel for the appellant. At this stage, appeal is preferred by the petitioner No.1 who was granted 20% of the award amount of Rs.6,64,000/- together with interest. But the remaining 80% of the award go to the basket of respondent Nos. 2 to 6 being the widow and children of Chikkaiah Poojari. Insofar as appellant who claims for enhancement had not represented the widow and children of Chikkaiah Poojari. Now the siblings of Chikkaiah Poojari namely Smt.Ganga Poojari,Sri. Sanju Poojari @ Sanjeeva Poojari and Sri. Nagesh Poojari, have not preferred any appeal seeking enhancement of compensation claiming dependency. Regard being had to the fact that they are sister and brothers said to be residing separately. The Tribunal granted 20% share to the mother of Chikkaiah Poojari.
12. Insofar as the loss of dependency is concerned, it is a point on law. However, monthly notional income is concerned, it is a point of fact. 80% of the dependents have not been challenged the quantum of compensation and the petitioner/appellant/mother filed the appeal for enhancement. In the circumstances, calculation of loss of dependency has to be re-determined taking the monthly income plus 30% towards future prospects less 1/4th towards personal and living expenses. But in the context, the monthly income is taken at Rs.4,000/- per month and that does not call for enhancement taking trigonometrical calculation. Thus, the notional monthly income would be Rs.4,000/- plus 30% (Rs.1,200/-) = Rs.5,200/- less 1/4th (Rs.1,300/-) towards personal and living expenses, total monthly income comes to Rs.3,900/- annually, it comes to Rs.46,800/- and if it is multiplied by 13 multiplier, total loss of dependency comes to Rs.6,08,400/- instead of Rs.6,24,000/- (wrongly shown).
13. Though the loss of dependency is decreased, dependants are entitled for enhanced compensation under conventional heads. The Tribunal has awarded Rs.10,000/- each towards loss of consortium, loss of love and affection, loss of estate and transportation and funeral expenses and the same requires enhancement under this appeal in the circumstances of the case. Hence, loss of consortium is increased by Rs.20,000/-, loss of love and affection is increased by Rs.15,000/- and loss of estate is increased by Rs.30,000/- and transportation and cremation is increased by Rs.6,200/-.
14. As respondents 3 to 6 who are entitled for compensation are not in picture, 4/5th of compensation or 80% of the compensation will have to be kept as it is. Regard being had to the fact that the appellant is entitled for 20% only as ordered by the Tribunal.
15. Thus, the judgment and award passed by the Tribunal is liable to be set aside to modify the same by awarding compensation of Rs.7,19,600/- as against Rs.6,64,000/-. The break up of modified compensation as under:
Loss of income/dependency (48,000 x 13) Loss of consortium ( to be paid to the respondent No.3) Rs.6,08,400/- Rs. 30,000/-
Loss of love and affection Rs. 25,000/- Loss of estate Rs. 40,000/-
Transportation and cremation of dead body Rs. 16,200/-
Total Rs.7,19,600/-
The dependants of Chikkaiah Poojari is entitled to the enhanced compensation of Rs.55,600/-.
16. The amount of 20% of enhanced compensation which falls to the share of the appellant/petitioner No.1/Ammakka is not opposed by other petitioners or respondents. At the same time, the appellant cannot claim 80% of the enhanced compensation which fall to the share of respondent Nos. 3 to 6.
17. Hence, I pass the following:
Order (i) Appeal is allowed in part.
(ii) Judgment and award dated judgment and award dated 06.03.2014 passed in MVC No.5126/2011 on the file of the XVI Additional Judge, Court of Small Causes and Member, MACT, Bangalore City is set aside to modify the same awarding compensation of Rs.7,19,600/- as against Rs.6,64,000/- and there would be an enhancement of Rs.55,600/-6% p.a. from the date of petition till its realization.
(iii) The Insurance Company is directed to deposit the compensation including the enhanced compensation with interest before the jurisdictional Tribunal within an outer limit of four weeks from the date of receipt of certified copy of this order.
(iv) The appellant shall be entitled for 1/5th share of the said amount with proportionate interest.
(v) Insofar as remaining 4/5th share of the compensation amount is concerned, as the respondent Nos. 3 to 6 are not before the Court nor represented by the counsel their share, at present, shall be kept in the fixed deposit, in any one of the nationalized bank by the Tribunal for a period of two years and totally for five years (vi) However, respondents 3 to 6 have not appeared so far to claim compensation that too being the dependants. In case, they appear for the release of the amount, the Tribunal shall ensure that, they have not made any claim or received compensation by virtue of the death of Chikkaiah Poojari on 1.05.2011 because of the injuries he suffered in the said accident due to negligence of the offending Vehicle bearing Reg.No.KA.41-8998 before any Court or Tribunal or any authority. Further, verifying their identity and also obtain surety/indemnity bond if necessary. In case, they do not appear in the said period of two years, the Tribunal shall seek further direction of this court for future course of action at that time.
(vii) Insofar as the share of appellant i.e. 20% is concerned, the same shall be released in favour of appellant.
(viii) No costs.
Sd/- JUDGE tsn*