IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 4918 OF 2016 (MV) BETWEEN 1. SMT. BIBIJAN W/O LATE SYED AYUB AGED ABOUT 36 YEARS 2. MASTER SYED HANIF S/O LATE SYED AYUB AGED ABOUT 10 YEARS 2ND MINOR APPELLANT IS REPRESENTED BY NATURAL GUARDIAN / MOTHER 1ST APPELLANT HEREIN.
BOTH ARE RESIDING AT NO.128, K.M. COLONY 7TH CROSS, SIDDAPURA JAYANAGAR, 1ST BLOCK BANGALORE-560011.
... APPELLANTS (BY SRI. N. GOPALKRISHNA - ADVOCATE) AND 1. SRI O. SRIKANTH REDDY S/o O. VENKATAREDDY MAJOR IN AGE RESIDING AT D.NO.1-5-547 BALAJI COLONY TIRUPATHI CHITTOOR DISTRICT ANDHRA PRADESH PIN-517501.
2. HDFC ERGO GENERAL INSURANCE CO. LTD., 1ST FLOOR, HM GENEVA HOUSE NO.14 CUNNINGHAM ROAD BANGALORE – 560052 REP. BY ITS MANAGER.
... RESPONDENTS (BY SRI H.S. LINGARAJ – ADV., FOR R-2; NOTICE TO R-1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.09.2015 PASSED IN MVC NO. 5140/2010 ON THE FILE OF THE 8TH ADDITIONAL SMALL CAUSE JUDGE AND 33RD ACMM, MEMBER, MACT, BENGALURU, 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 matter is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. This appeal is preferred by the appellants/claimants against the judgment and award dated 08.09.2015 rendered by the Tribunal in MVC No.5140/2010 seeking enhancement of compensation.
3. The factual matrix of the appeal is as under:
On 17.04.2010 at about 11.20 a.m. petitioners were the inmates of the private bus along with one Syed Ayub in MVC No.5140/2010 who succumbed to the injuries, were traveling in bus bearing No.KA-01-D-4648 near Kajikallahalli village gate, on Bangalore-Chennai NH-4 road, another APSRTC contract bus bearing No.AP-03-W-8140 coming from opposite direction, driven in very high speed, rash and negligent manner had hit the B.T.Private bus head-on. In the incident, due to the impact, some persons sustained grievous injuries and Syed Ayub in MVC No.5140/2010 succumbed to the injury. Due to the untimely death of deceased Syed Ayub, the petitioners being LRs, filed claim petition seeking compensation by urging various grounds.
4. On service of notice, respondents filed objections denying the averments made in the petition and sought for dismissal of the petition. Based upon the pleadings, the Tribunal framed the issues. In order to establish their case, first petitioner in MVC No.5140/2010 was examined as PW.2 and got marked Exs.P9 to P13. After hearing arguments of learned counsel on both sides, the Tribunal passed the impugned judgment, awarding compensation of Rs.7,67,000/- with interest @ 6% p.a. from the date of petition till realisation. Being not satisfied with the compensation awarded, the claimants have filed this appeal by urging various grounds.
5. Learned counsel for the appellants contends that the Tribunal is not justified in assessing the income of the deceased at Rs.6,000/- p.m. Ex.P.9 and P.11 indicates that the deceased was in private employment and his salary was Rs.9,000/- per month, but the Tribunal has erred in overlooking these documents.
6. He further contends that the Tribunal ought to have assessed the income of the deceased taking into consideration future prospects. It is well settled law that in case of self-employed persons also, if the deceased is in between 40 to 50 years, there must be addition of 30% to the actual income of the deceased while computing future prospects. Further, the compensation awarded towards conventional heads is on lower side. On these grounds learned counsel for the appellants prays for allowing the appeal by enhancing the compensation.
7. Per contra, learned counsel for the insurer submits that there is violation of policy conditions as the APSRTC bus has plied on contract basis and it is a hired vehicle. He categorically denies that the accident happened due to the fault of APSRTC bus driver and submits that bus bearing No.KA-01-4648 is responsible for the incident, as such this respondent is not liable to pay any compensation. Further, he contends that the Tribunal, on appreciation of the evidence and material on record has rightly assessed the income of the deceased and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
8. Keeping in view the contentions as urged in this appeal by the learned counsel for the parties, it is not in dispute that deceased Syed Ayub died in a road traffic accident that occurred on 17.04.2010 at about 11.20 a.m. due to the head-on collusion between B.T.Private bus bearing No.KA-01-D-4648 and APSRTC bus bearing Reg.No.AP-03-W-8140. The petitioners are legal heirs of deceased Syed Ayub. In this regard, first petitioner who is the wife of deceased was examined as PW.2 and documents such as Ex.P9-inquest report, Ex.P10 –PM report, Ex.P.11 – salary certificate of deceased, Ex.P12 & Ex.P13, election ID card of deceased and first petitioner have been produced. The petitioners though claim that deceased was earning Rs.9,000/- p.m. and in support of that Ex.P11 salary certificate is produced, but the author of the certificate has not been examined. Under such circumstance, the Tribunal assessed the notional income of the deceased at Rs.6,000/- per month, which appears to be on the lower side. While calculating the notional income, this Court has taken into consideration the guidelines and chart prepared by the Lok Adalat for deciding the cases. As per the chart, for the accident of the year 2010, the notional income has to be fixed at Rs.6,500/- per month. Further, the multiplier of 14 adopted by the Tribunal is appropriate and it does not call for interference.
9. The deceased was aged 45 years at the time of his death, in view of the decision of the Apex Court in National Insurance Company Limited –vs- Pranay Sethi (AIR 2017 Supreme Court 5157), 25% of his income ought to have been added towards future prospects, which has not be done. Accordingly, the compensation under the head ‘loss of dependency’ is reworked out as under:
10. Further, the compensation awarded by the Tribunal under conventional heads is just and proper and it does not call for interference.
11. The Tribunal has awarded interest at 8% to the claimants who were injured in the same accident and who have filed claim petitions. Keeping in view the said aspect, it is relevant to note that the deceased was aged 45 years at the time of the accident and has left behind his wife who is aged 30 years and minor son who is aged 4 years. Therefore, she is required to bring up her minor child and she is having greater responsibility in respect of future career of that minor child. Under these circumstances, the interest awarded by the Tribunal at 6% p.a. is on lower side and the same is enhanced to 8% p.a for the enhanced compensation.
In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Therefore, in all the claimants are entitled to Rs.9,10,056/- as against Rs.7,67,000/- and the enhanced compensation would be Rs.2,38,056/- rounded off to Rs.2,38,000/-. For the aforesaid reasons and findings, I proceed to pass the following:
ORDER The appeal is allowed in part. The impugned judgment and award dated 08.09.2015 passed by the Tribunal in MVC No.5140/2010 is hereby modified. The appellants/claimants are entitled to enhanced compensation of Rs.2,38,000/- with interest @ 8% p.a. from the date of petition till realisation.
Respondent-insurer shall deposit the enhanced compensation with interest before the Tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to apportionment and deposit is concerned, shall remain unaltered.
There shall be no order as to costs. Office to draw the decree accordingly.
SD/- JUDGE DKB