IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER 2017 BEFORE:
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY MISCELLANEOUS FIRST APPEAL No.311/2015 (MV) BETWEEN 1. SMT BHAGYALAKSHMI W/O LATE RAJANNA, AGED ABOUT 49 YEARS, 2. DIVYASHREE W/O LATE RAJANNA, AGED ABOUT 23 YEARS, 3. TEJAS D/O LATE RAJANNA, AGED ABOUT 20 YEARS ALL ARE R/AT NO.45, III CROSS, BASAVESHWARANAGARA, NEW KANTHARAJ URS ROAD, MYSORE-570023. ... APPELLANTS (BY SMT. SUMA KEDILAYA, ADV. FOR SRI. V.PADMANABHA KEDILAYA, ADV.) AND 1. SRI B C BASTI S/O LATE C C BASTI, AGED ABOUT 62 YEARS, REGIONAL COLLEGE OF EDUCATION, MYSORE-570006, RIDER CUM OWNER OF MOTOR BIKE BEARING, REG NO.KA 09 EA 4819.
2. THE UNITED INDIA INSURANCE CO. LTD., NO.1134, PRINCE OF WALES ROAD, CHAMARAJAPURAM, MYSORE-570 025. ... RESPONDENTS (BY SRI. D VIJAYAKUMAR, ADV. FOR R2.
V.C.O. DATED 12/07/2017 NOTICE TO R1 IS DISPENSED WITH) * * * THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.04.2014 PASSED IN MVC NO.172/2013 ON THE FILE OF THE V ADDITIONAL DISTRICT JUDGE, MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ‘FINAL HEARING’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellants being wife and children of deceased Rajanna, dissatisfied with the amount of compensation awarded by the Tribunal for his death in a motor vehicle accident, have filed this appeal, seeking enhancement.
2. The brief facts of the case is that on 14.08.2012 Rajanna was a retired government employee and was getting pension of Rs.7,000-00 p.m. In addition to that, he was doing work at M/s. Prabhu Ceramics. On the aforesaid date, he had been to the site belonging to the owner of M/s. Prabhu Ceramics. While returning from the site on a motor cycle bearing reg. No.KA 09 EL 0230 as a pillion rider, the offending motorcycle bearing reg. No.KA 09 EA 4819 came and hit his motorcycle. As a result, Rajanna succumbed to the injuries, while taking treatment.
3. The Tribunal has assessed the income of the deceased at Rs.3,000-00 p.m. and awarded a total compensation of Rs.2,23,000-00.
4. Learned counsel for the appellants submits that though there are abundant evidence to prove that deceased Rajanna was earning more than Rs.8,000-00 p.m. at the time of accident, the Tribunal has assessed his income only at Rs.3,000-00 p.m. without assigning proper reasons. Ex.P7 is the salary certificate, which discloses that the deceased was earning Rs.6,000-00 p.m. as salary and Rs.2,000-00 as an additional income. It is contended that despite the fact that the deceased was a retired government employee and was also getting pension of Rs.7,000-00 p.m. and was contributing entire amount to the family, the Tribunal has assessed his income only at Rs.3,000-00 p.m. without assigning any proper reason.
5. Ex.P9 is a copy of pension payment order, which discloses that the deceased was getting a pension of Rs.8,636-00 after deduction of commutation amount. Ex.P7-Salary Certificate discloses that the deceased was paid salary of Rs.6,000-00 p.m. and Rs.2,000-00 as T.A. and D.A. To arrive at the conclusion that the deceased was earning more than Rs.8,000-00 p.m. on the basis of any document produced, it is expected that the author of that document should be examined but, no such effort has been made. Despite the fact that the Tribunal has assessed the income of the deceased at Rs.3,000-00 p.m., the claimants have not produced any other relevant document to show that the deceased was earning Rs.8,000-00 p.m. Based on Ex.P7-salary certificate and Ex.P9-Pension Payment Order, the Tribunal has assessed the income of the deceased at Rs.3,000-00 p.m. It is true that when a particular income is claimed, the burden is on the claimant/s to prove the same. But, in the instant case, no such effort has been made. P.W.1, who herself was one of the claimants was examined and she deposed that the deceased was a retired Government official and drawing pension and he was also working for M/s. Prabhu Ceramics. It is not sufficient to rely on her evidence to assess the income of the deceased and to decide as to whether the deceased was contributing the entire amount to the family or not.
6. Though the Tribunal has assessed the income of the deceased at Rs.3,000-00 p.m. based on Ex.P7, it is on very lower side. Under these circumstances, if the notional income of the deceased is taken at Rs.6,000-00 p.m. and deduct 1/3rd towards his personal expenses, it would meet the ends of justice and the compensation towards loss of dependency would be;
Rs.6,000 x 2/3 x 12 x 7 = Rs.3,36,000-00 Hence, the appellants are entitled to an additional sum of Rs.1,68,000-00 [Rs.3,36,000 – Rs.1,68,000] under the head loss of dependency.
In respect of loss of love, affection and estate, the Tribunal has awarded only a sum of Rs.15,000-00, which is on the lower side. Hence, another sum of Rs.20,000-00 is awarded under this head. The Tribunal has awarded a sum of Rs.30,000-00 under the head loss of consortium to petitioner No.1, which is on the lower side. Hence, another sum of Rs.15,000-00 is awarded under this head. The Tribunal has awarded a sum of Rs.10,000-00 under the head funeral and obsequious ceremony, which is on the lower side. Hence, another sum of Rs.25,000-00 is awarded under this head.
In the result, the appeal is allowed in part. In addition to the compensation awarded by the Tribunal, the appellant is entitled to a sum of Rs.2,28,000-00 with interest as awarded by the Tribunal from the date of the petition till its payment.
Sd/- JUDGE CT-HR Ksm*