IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.4863/2015 (MV) Between:
1. Smt. Bhagyamma W/o. Late G.M. Boraiah Aged about 43 years 2. G.B. Sheela D/o. G.M. Boraiah Aged about 27 years 3. G.B. Bhavya D/o. G.M. Boraiah Aged about 26 years 4. G.B. Vijayakumar D/o. G.M. Boraiah Aged about 25 years 5. G.B. Vinaykumar D/o. G.M. Boraiah Aged about 25 years All are residing at Gurudevarahalli Village C.A. Kere Hobli Maddur Tq, Mandya Dist – 571 428. ... Appellants (By Smt. Asha B.L., Advocate for Sri G.M. Ananda, Advocate) And:
1. The Branch Manager IFFCO-TOKIO General Insurance Co. Ltd., No.846, New Kantharaj Urs Road Kuvempunagara Mysore – 23.
2. Chandrashekar G.B. S/o Bhadraiah Major R/at Gejjalagere Village Kasab Hobli Maddur Tq Mandya Dist – 571 428. … Respondents (By Sri S.V. Hegde Mulkhand, Adv. for R1 R-2 served) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 25.8.2012 passed in MVC No.153/2011 on the file of the Senior Civil Judge, MACT, Maddur partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal is coming on for Admission this day, the Court delivered the following:
J U D G M E N T Though this appeal is listed for admission, the same is taken up for final disposal with the consent of learned counsel on both side.
2. The claimants have preferred this appeal seeking enhancement of compensation awarded by the Tribunal for the death of one Sri G.M. Boraiah in a road traffic accident, which occurred on 08.06.2011.
3. I have heard the learned counsel appearing for the respective parties.
4. The brief facts leading to the filing of this appeal are that:
On 08.06.2011 at about 10.45 a.m., the deceased G.M. Boraiah was proceeding on a motorcycle bearing registration No.KA-11-Q-9681 as a pillion rider and one G.C. Channegowda (PW.2) was riding the said motorcycle. When they reached near Kurikempanadoddi gate on K.M. Doddi–Mandya main road, one Tractor bearing registration No.KA-11/T- 9779 driven by its driver in a rash and negligent manner dashed against the motorcycle. As a result of which, the deceased was thrown out from the motorcycle and the front right wheel of the tractor ran over his left leg below knee portion. Immediately, he was shifted to General hospital, K.M. Doddi and after first aid, he was shifted to District hospital, Mandya, wherein he took treatment as an inpatient. However, not responding to the treatment, he died on account of the accidental injuries on 23.06.2011.
5. The claimants are the wife and children of the deceased. It is the case of the claimants that the deceased was aged about 42 years at the time of accident and he was earning a sum of Rs.25,000/- per month as an agriculturist and also running one Basaveshwara Sound System and Basaveshwara Cycle Mart. The learned counsel for the appellant would contend that the total compensation awarded by the Tribunal thereby taking the income of the deceased at Rs.5,000/- per month is on a lower side. Hence, she seeks to enhance the compensation by awarding just compensation.
6. The learned counsel for respondent No.1/insurance co., would submit that the Tribunal has awarded just and reasonable compensation on the basis of the evidence placed on record and no interference is called for and accordingly, he seeks to dismiss the appeal.
7. The death of one Sri G.M. Boraiah in a road traffic accident involving a tractor bearing registration No.KA-11/T-9779 owing to the actionable negligence on the part of its driver and the fact that the said tractor was insured with the respondent No.1/insurance company herein is not in dispute.
8. The contention of the learned counsel for the appellant is that the deceased was an agriculturist and also running one Basaveshwara Sound System and Basaveshwara Cycle Mart and from all sources, he used to earn a sum of Rs.25,000/- per month. To appreciate the said contention, apart from the oral testimony of PW.1 who is one of the son of deceased, there is no other convincing and acceptable evidence placed on record. Considering the facts and circumstances of the case and also taking into account the year of the accident, I deem it appropriate to take the notional income of the deceased at Rs.6,500/- per month as against Rs.5,000/- per month taken by the Tribunal. The deceased was aged about 42 years at the time of the accident. Hence, an addition of 25% has to be made to the income of the deceased.
9. The Tribunal has come to the conclusion that claimant No.1, wife of the deceased and claimant No.5 are the only dependants of the deceased and entitled for compensation. To come to the said conclusion, the Tribunal has considered the fact that claimant Nos.2 and 3 are married daughters and they are residing in their respective house and claimant No.4 is a major son of the deceased. The Tribunal, after considering that the petitioner Nos.2 and 3 are not dependents of the deceased, awarded compensation to petitioner Nos.1 and 5. It is also observed that petitioner Nos.2 and 3 are residing separately. However, it cannot be said that petitioner No.4, the son of the deceased, aged about 20 years was not a dependent. Hence, from the total income of the deceased, 1/3rd has to be deducted towards personal expenses. The appropriate multiplier applicable to the age of the deceased is 14. Therefore, the appellants are entitled for a compensation of Rs.9,10,056/- towards ‘Loss of dependency’ as against Rs.5,60,112/- awarded by the Tribunal. A sum of Rs.70,000/- is awarded towards ‘Loss of consortium’, ‘Loss of estate’, ‘Funeral expenses’ and ‘Transportation of dead body’. Rs.9,000/- awarded towards medical expenses based on medical bills and prescriptions is just and proper. In the facts and circumstances of the case and considering the dependency, a sum of Rs.40,000/- is awarded towards ‘Loss of love and affection’. In all, the appellants are entitled for a total compensation of Rs.10,29,056/- Rounded off to Rs.10,30,000/- as against Rs.6,14,000/- awarded by the Tribunal.
For the foregoing reasoning, I passed the following:
O R D E R The appeal is allowed in part. Judgment and award dated 25.08.2012 in MVC No.153/2011 on the file of the Senior Civil Judge & MACT, Maddur is hereby modified.
The appellants No.1, 4 and 5 are entitled for a total compensation of Rs.10,30,000/- with interest at 6% per annum from the date of petition till the date of realization as against Rs.6,14,000/- awarded by the Tribunal.
The apportionment and disbursement shall be in the ratio 70:15:15 to appellants No.1, 4 and 5 respectively.
Respondent No.1/insurance co., shall deposit the amount within a period of six weeks from the date of receipt of a copy of this order.
It is made clear that the appellants are not entitled for any interest for a period of 937 days occurred in preferring this appeal.
Sd/- JUDGE nms