IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.4292 OF 2018 [MV] BETWEEN 1. B.N.NARAYANASWAMY, S/O. NARASIMHASHETTY 41 YEARS, 2. B.N.VENDANTHE SHETTY, S/O. NARAYANASWAMY, 15 YEARS, 3. B.N.DEEKSHA SHETTY, D/O. NARAYANASWAMY, 5 YEARS, ALL ARE R/O. BASAVAPATNA VILLAGE AND POST, RAMANATHAPURA HOBLI, ARKALGUDU TALUK, HASSAN DISTRICT.
APPELLANTS 2 AND 3 ARE MONORS, HENCE R/BY THEIR FATHER/NATURAL GUARDIAN THE 1ST APPELLANT. ... APPELLANTS [BY SMT. SHARADAMBA A.R., ADVOCATE] AND 1. ATHIK AHMED, S/O. ABDUL WAHAB, MAJOR, BEHIND MINI VIDHANA SOUDHA, NEHRU NAGAR, CHIKKAMALUR ROAD, BELUR.
2. THE MANAGER, RELIANCE GENERAL INSURANCE CO. LTD., 1ST FLOOR, KRUTHIKA ARCADE, N.R.CIRCLE, HOLENARASIPURA ROAD, HASSAN-573 201. ... RESPONDENTS [BY SRI. H.C.BETSUR, ADVOCATE FOR R2.
NOTICE TO R1 IS DISPENSED WITH VIDE COURT ORDER DATED 18.12.2018] * * * THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.11.2017, PASSED IN MVC NO.56/2017, ON THE FILE OF THE SENIOR CIVIL JUDGE & MEMBER, MACT., ARKALGUD, 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 Though this appeal is listed for admission, the same is taken up for final disposal at the consent of both the learned counsel.
2. This is claimants appeal, seeking enhancement of compensation awarded by the Tribunal in MVC No.56/2017 on the file of the Court of Senior Civil Judge and MACT., at Arakalgud, wherein a compensation of Rs.9,90,264/- has been awarded for the death of one Smt. Varalaxmi in a road traffic accident.
3. I have heard the learned counsel for the appellants and also the learned counsel appearing for the respondent No.2/Insurance Company.
4. The appellants being the husband and two minor children of the deceased filed a claim petition seeking a total compensation of Rs.30,00,000/- for the death of Smt. Varalaxmi. The Tribunal considering the oral and documentary evidence on record awarded a total compensation of Rs.9,90,264/- with interest at the rate of 9% p.a.
5. The brief facts leading to filing of the present appeal are that;
On 23.08.2016, at 11.30 a.m. the deceased Varalaxmi was traveling on a Hero Honda Delux motorcycle bearing reg. No.KA-13/ED-7502 as a pillion rider along with her husband, from her village to Dharmastala Manjunatheshwara Ayurvedic Hospital, Hassan. Near Halubagilu cross, Hassan-Mangaluru bypass road, the driver of a tipper lorry bearing reg. No.KA- 33/7013 by driving the said vehicle in a rash and negligent manner dashed against the hind portion of the motorcycle. Consequently, both the rider and the pillion rider fell on the road along with the motorcycle and the front tyre of the tipper lorry ran over the left leg of deceased Varalaxmi. She sustained bleeding injuries to the thigh and also grievous injuries to other parts of the body. Immediately, she was shifted to Janapriya Hospital, Hassan, wherein she was treated as an in-patient for a period of 12 days. For further treatment, she was shifted and admitted at A.J. Hospital, Mangaluru. Her leg was amputated. However, without responding to the treatment, she succumbed to the injuries on 08.09.2016.
6. The learned counsel for the appellants contended that the deceased was aged about 34 years and she was running a petty shop and was earning a sum of Rs.10,000/-
p.m. and therefore, submits that the notional income taken at Rs.4,000/- p.m. by the Tribunal and thereby awarding a sum of Rs.5,12,064/- towards loss of dependency is on a lower side. It is her contention that appellant Nos.2 and 3 are the minor children of the deceased and they have lost the love and affection of their mother in their tender age and therefore, submits that the total compensation awarded by the Tribunal is inadequate and seeks to enhance the same by modifying the Judgment and Award passed by the Tribunal.
On the other hand, learned counsel appearing for the Insurance Company would contend that there is absolutely no evidence adduced with regard to the income of the deceased. The petty shop was being run by the husband and not by the deceased and it cannot be said that the husband was depending on the income of his deceased wife and therefore, he submits that the compensation awarded by the Tribunal cannot be said to be on a lower side and accordingly seeks to dismiss the appeal filed by the claimants.
7. It is the case of the appellants that the deceased Smt. Varalaxmi while traveling on a two-wheeler met with an accident and sustained fatal injuries and subsequently died owing to the actionable negligence on the part of the driver of the tipper lorry bearing reg. No.KA-33/7013. The Tribunal while answering Issue No.1 has held that the claimants have proved that the accident was due to the rash and negligent driving by the driver of the offending vehicle. Even otherwise, the accident in question, involving the offending vehicle and the negligence on the part of driver of the said vehicle are not in dispute. The said vehicle was insured with respondent No.2.
8. The Tribunal after considering the evidence of P.W.1, wherein he has admitted that at present he is running the provisional store and therefore, holding that there is no much loss caused to P.W.1, took the income of the deceased at Rs.4,000/- p.m. It is no-doubt true that the income of the deceased as pleaded by the claimants has not been established. According to the claimants, the deceased was earning a sum of Rs.10,000/- p.m. by running the petty shop. Merely because P.W.1 is running the petty shop by himself, it cannot be said that the deceased was not having any income. The deceased would have assisted P.W.1 in his petty shop and could have earned more than Rs.4,000/- p.m. as assessed by the Tribunal. Claimant Nos.2 and 3 are the minor children. Considering that the deceased was a housewife and also assisting P.W.1 in the petty shop, a substantial amount has to be taken as her income for the purpose of calculating the loss of dependency. Hence, in the facts and circumstances of the case, I deem it proper to take the notional income of the deceased at Rs.8,000/- p.m. 1/3rd of the income deducted by the Tribunal towards her personal and living expenses is just and proper. The deceased was aged 34 years at the time of the accident and therefore, the multiplier applicable to the said age group is ‘16’ .
9. In view of the law laid-down by the Hon’ble Apex Court in the cases of National Insurance Company Vs. Pranay Sethi and others reported in AIR 2017 SC 5157 and Magma General Insurance Co. Ltd. Vs. Nanu Ram reported in 2018 ACJ 2782 an additional 40% has to be added to the income of the deceased towards future prospects. After deducting 1/3rd towards personal expenses, the income comes to Rs.7,467/- and therefore, the appellants are entitled for a total compensation of Rs.14,33,664/- [Rs.8,000 + 3,200 = Rs.11,200 – 3,733 = Rs.7,467 x 12 x 16] towards loss of dependency as against Rs.5,12,064/- awarded by the Tribunal.
10. A sum of Rs.70,000/- is awarded under the conventional heads viz., loss of consortium, loss to the estate, funeral and transportation charges. Appellant Nos.2 and 3 are the minor children of the deceased, who were aged about 14 years and 4 years respectively. Hence, it is just and proper to award a sum of Rs.25,000/- each towards loss of love and affection for the two minor children. The sum of Rs.4,28,200/- awarded towards medical expenses is proper.
In all, the appellants are entitled for a total compensation of Rs.19,81,864/- as against Rs.9,90,264/- awarded by the Tribunal. Hence, I pass the following:
ORDER The appeal is allowed in part. The Judgment and Award dated 4.11.2017 passed in MVC No.56/2017 on the file of the Court of Senior Civil Judge and MACT., at Arakalgud is hereby modified.
The appellants are entitled for a total compensation of Rs.19,81,864/- as against Rs.9,90,264/- awarded by the Tribunal. The enhanced compensation of Rs.9,91,600/- shall carry interest at the rate of 6% p.a. from the date of the petition till the date of deposit.
The apportionment and disbursement of compensation shall be in terms of the Award passed by the Tribunal.
Respondent No.2/Insurance Company shall deposit the amount within a period of six weeks from the date of receipt of copy of this Judgment.
Sd/- JUDGE.
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