IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.8573 OF 2013 (MV) BETWEEN 1. SMT. AVAMMA, W/O. LATE C.M. MOHAMMED @ C.M. BASHEER AGED ABOUT 45 YEARS.
2. KUMARI MUMTAZ @ BEEFATHIMA, D/O. LATE C.M. MOHAMMED @ C.M. BASHEER, AGED ABOUT 29 YEARS, 3. GOUSE, S/O. LATE C.M. MOHAMMED @ C.M. BASHEER, AGED ABOUT 27 YEARS, 4. MISS AISHA, D/O. LATE C.M. MOHAMMED @ C.M. BASHEER, AGED ABOUT 25 YEARS, 5. KUMARI AJIRA @ AZARA, D/O. LATE C.M. MOHAMMED @ C.M. BASHEER, AGED ABOUT 23 YEARS, 6. FAROOQ, S/O. LATE C.M. MOHAMMED @ C.M. BASHEER, AGED ABOUT 21 YEARS, 7. KUMARI ANISA, S/O. LATE C.M. MOHAMMED @ C.M. BASHEER, AGED ABOUT 19 YEARS, 8. MASTER ANSAF, S/O. LATE C.M. MOHAMMED @ C.M. BASHEER, AGED ABOUT 17 YEARS, MINOR, 9. KUMARI BABY UMMUL KULSU, S/O. LATE C.M. MOHAMMED @ C.M. BASHEER, AGED ABOUT 16 YEARS, MINOR, 10. KUMARI FATHEMATH MISRIYA, S/O. LATE C.M. MOHAMMED @ C.M. BASHEER, AGED ABOUT 13 YEARS, MINOR, APPELLANTS 8 TO 10 ARE MINORS, REPRESENTED BY THEIR NEXT FRIEND, APPELLANT NO.1 ALL ARE RESIDING AT 8/71, RENKEDHA GUTHU, KASABA VILLAGE, BELTHANGADY TALUK, PRESENTLY R/AT ZAM ZAM MANZIL, FAIZAL NAGAR, BAJAL, MANGALORE-575 027.
... APPELLANTS (BY SRI. GURUPRASAD B.R., ADVOCATE) AND 1. MR. YASHWANTH, S/O. SHIVARAM POOJARY, R/O MANNA GUDDI HOUSE, KAUKRADI GRAMA, PUTTUR-574 021.
2. UNITED INSURANCE CO. LTD, PRABHU BUILDING, MAIN ROAD PUTTUR, LOCAL ADDRESS: DIVISIONAL OFFICE, RAMA BHAVAN COMPLEX, KODIALBAIL, MANGALORE-575 002.
REPRESENTED BY ITS MANAGER.
... RESPONDENTS (BY SRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R2, R1 SERVICE OF NOTICE IS DISPENSED WITH AS PER THE ORDER DATED 15.09.2015) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.01.2013 PASSED IN MVC NO.939/2011 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MEMBER, MACT, D.K., MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT Aggrieved by the inadequacy of compensation awarded by the Tribunal in MVC No.939/2011 by the MACT, Dakshina Kannada, Mangaluru dated 11.01.2013, the claimants have preferred this appeal, seeking enhancement of compensation.
2. I have heard the learned counsel appearing for the appellants and the learned counsel appearing for the Respondent No.2-Insurance Company.
3. The case of the claimants/appellants in brief that, on 28.02.2011 at about 11.00 a.m., one C.M. Mohammed alias C.M. Basheer while walking on the left side of the road, at Karaya Kolli of Karaya Village of Belthangady Taluk, a tourist jeep bearing registration No.KA-18-6941 driven by its driver, came from Guruvayanakere in a rash and negligent manner and dashed to the deceased. Due to the said impact, he sustained multiple injuries and fell unconscious and immediately he was shifted to the Government Hospital at Puttur. After the first aid treatment, he was shifted to Highland Hospital at Mangalore and he was treated in ICU. He succumbed to the injuries on 14.03.2011 at about 9.25 a.m., 4. It is the further case of the claimants that the deceased was hale and healthy at the time of the accident and he was aged about 45 years. He was working as a mason in Dharmashree Construction and earning a wage of Rs.400/- per day and entire family members were depending on the income of the deceased.
5. Before the Tribunal, the claim petition was filed seeking a total compensation of Rs.20 Lakhs. PWs.1 to 3 were got examined on behalf of the claimants and Exs.P-1 to 13 were marked. Though the claim petition was contested by the respondents, no evidence was led, however, Ex.R-1 – copy of the Insurance policy was marked.
6. The Tribunal after considering the oral and documentary evidence on record, awarded a total compensation of Rs.6,10,000/- with interest at 6% per annum from the date of petition till realization.
7. Seeking enhancement of compensation awarded by the Tribunal, the learned counsel appearing for the appellants contended that the Tribunal has erred in taking the income of the deceased at Rs.5,000/- per month, even though the claimants have examined the employer as PW-2 and established that the deceased was earning a sum of Rs.400/- per day by working under him as a mason. It is further contended that the age of the deceased at the time of his death was about 45 years and therefore the Tribunal was not proper in applying the multiplier ‘9’, considering the age of the deceased as 58 years based on the informed consent letter dated 08.03.2011. He submits that he would rely on Ex.P-10 Ration card copy and submits that the age of the deceased was only 45 years at the time of accident and therefore, the total compensation awarded by the Tribunal towards ‘loss of dependency’ is on the lower side. He further submits that the compensation awarded under all the other heads are on the lower side and accordingly seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
8. Per contra, the learned counsel appearing for Respondent No.1-Insurance Company would vehemently contend that there is no satisfactory evidence adduced by the claimants in the form of any documents so as to hold that the deceased was earning a sum of Rs.400/- per day. He further submits that the age of the deceased was mentioned as 58 years in the informed consent letter dated 08.03.2011 and in other documents available in the case sheet and therefore, the Tribunal was justified in taking the age of the deceased as 58 years and applying the multiplier ‘9’. He would submit that the total compensation awarded is just and proper and seeks to dismiss the appeal.
9. It is the case of the appellants that the deceased while walking on the left side of the road at about 11.00 a.m., on 28.02.2011, a tourist jeep bearing registration No.KA-18-6941 driven by its driver came from Guruvayanakere side in a rash and negligent manner and dashed to the deceased, on account of which, he sustained multiple injuries and took treatment in the hospital and unfortunately succumbed to the injuries on 14.03.2011. The accident in question and the actionable negligence on the part of the offending vehicle and the fact that the said vehicle was insured with the respondent No.2– Insurance Company herein is not seriously disputed.
10. The contention of the learned counsel for the appellants is that the deceased was earning a sum of Rs.400/- as daily wage by working as a mason under PW-2 in Dharmashree Construction.
11. PW2 in his evidence has deposed that there are about 15 workers working under him and amongst them, four are masons, four painters and six helpers. The deceased namely C.M. Mohammed alias C.M. Basheer was working as a mason and he was well experienced and that he was paying daily wage of Rs.400/-. He has further stated that he has issued a salary certificate. The said salary certificate has been marked as Ex.P-9. Perusal of the same goes to show that the deceased was earning a sum of Rs.400/- per day, working as a mason under PW2. The said salary certificate was issued under the letterhead namely Dharmashree Construction. In the cross-examination, PW-2 has deposed that the deceased was a permanent employee under him. However, he has not adduced any documents to show that the deceased was working under him. He has not maintained any Register in that regard. He has denied the suggestion that the deceased was not working under him and not earning a sum of Rs.400/- per day.
12. It is no doubt true that no documents such as license, register have been produced before the Court. However, considering the number of dependants and size of the family of the deceased, the Court has to take a reasonable amount as the income of the deceased. In that view of the matter, the notional income of the deceased is taken at Rs.8,000/- per month.
13. The Tribunal has held that the appropriate multiplier applicable to the age of the deceased is 9 by placing reliance on the case sheet – Ex.P30 and the informed consent letter dated 08.03.2011. It is observed that the age of the deceased is mentioned as 58 years in the said documents.
14. The learned counsel for the appellants would place reliance on the ration card marked at Ex.P10 and contend that in the year 2008, the deceased was aged about 43 years. Therefore, at the time of the accident, he was aged about 46 years.
15. Admittedly, the deceased fell unconscious due to the accident and immediately he was shifted to the hospital. In the informed consent letter dated 08.03.2011, the age of the deceased is shown as 58 years. However, it is not correct to state that in all the other documents available, the age of the deceased is mentioned as 58 years. The age of the deceased is mentioned as even 52 years and in some of the documents it is shown as 50 years and in the post mortem examination report, the age is shown as 50 years. The post mortem report is marked as Ex.P-5. In view of the same, the Tribunal was not proper in considering the age of the deceased as 58 years and choosing the multiplier 9 for calculating the loss of dependency. Taking into consideration the post mortem report which is marked at Ex.P-5 and also the age mentioned in some of the documents, the age of the deceased is taken as 50 years and therefore, the appropriate multiplier applicable to the age of deceased is 13. The income of the deceased is taken at Rs.8,000/- per month. To the income, 10% is added towards future prospects and after deducting 1/5th of the income towards personal expenditure, the income of the deceased is arrived at Rs.7,040/-. Therefore, the claimants are entitled for a compensation of Rs.10,98,240/- (Rs.7,040x12x13) towards ‘loss of dependency’ as against Rs.4,32,000/- awarded by the Tribunal.
16. The Tribunal has awarded a sum of Rs.40,000/- under the conventional head. The same is enhanced to Rs.70,000/- and the sum awarded under the head ‘medical expenses’ is unaltered. Hence, the claimants are entitled for a total compensation of Rs.13,05,610/- as against Rs.6,10,000/- awarded by the Tribunal.
17. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 11.03.2013 passed by the MACT, Dakshina Kannada, Mangalore, in MVC No.939/2011 is hereby modified.
The appellants-claimants are entitled for a total compensation of Rs.13,05,610/- as against Rs.6,10,000/- awarded by the Tribunal.
The enhanced compensation shall carry interest at 6% per annum from the date of petition till its realization.
Respondent No.2-Insurance Company is directed to deposit the entire amount within four weeks from the date of receipt of the copy of this judgment.
Sd/- JUDGE snc