IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 1ST DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD MISCELLANEOUS FIRST APPEAL NO.2046 OF 2012 (MV) CONNECTED WITH MISCELLANEOUS FIRST APPEAL NO. 451 OF 2012, MISCELLANEOUS FIRST APPEAL NO.2047 OF 2012, MISCELLANEOUS FIRST APPEAL CROSS OBJECTION NO.160 OF 2014 IN MFA NO.2046 OF 2012: BETWEEN:
THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LIMITED, BRANCH NO. 371/A, III FLOOR PRESTIGE SHOPPING ARCADE, RAMASWAMY CIRCLE, MYSORE – 570 024.
BY NATIONAL INSURNACE CO. LTD REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX M. G. ROAD, BENGALURU – 560 001. BY ITS MANAGER (BY SRI. O. MAHESH, ADVOCATE) ... APPELLANT AND:
1. ANNADORAI AGE 52 YEARS SON OF SUBRAMANYA REDDY.
2. MAGESHWARI AGED 47 YEARS SON OF ANNADORAI.
3. ARUN S. A AGED 26 YEARS SON OF ANNADORAI.
ALL ARE RESIDING AT NO.13, MIG II B LAKSHMIKANTHA NAGAR HEBBAL 1ST STAGE, HINKAL POST MYSURU - 570 017.
4. RAMYASHREE, AGE 32 YEARS WIFE OF YOGESH PROPRIETOR VRUSHICA INDUSTRIES NO.15E, III STAGE, INDUSTRIAL SUBURB MYSURU - 570 008.
... RESPONDENTS (BY SRI. B. P. HONAKHANDE, ADVOCATE FOR RESPONDENT NOS.1 TO 3, RESPONDENT NO.4 IS SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.08.2011 PASSED IN MVC NO.702 OF 2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III, MACT, MYSURU, AWARDING COMPENSATION OF RS.28,41,700/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT OR PAYMENT.
IN MFA NO.451 OF 2012:
BETWEEN:
ARUN S. A.
AGED ABOUT 26 YEARS SON OF ANNADURAI NO.13, MIG II B, LAXMIKANTHANAGAR HEBBAL 1ST STAGE, HINKAL POST MYSURU.
(BY SRI. B. P. HONAKHANDE, ADVOCATE) AND:
... APPELLANT 1. SMT. RAMYASHREE AGED ABOUT 32 YEARS WIFE OF YOGESH PROPRIETOR VRUSHICA INDUSTRIES NO.15E, 3RD STAGE, INDUSTRIAL SUBURB, MYSURU - 570 008.
2. THE NATIONAL INSURANCE COMPANY LIMITED, DIRECT AGENT BRANCH, NO.371/A 3RD FLOOR, PRESTIGE SHOPPING ARCADE, RAMASWAMY CIRCLE MYSURU - 570 024.
REPRESENTED BY ITS MANAGER.
... RESPONDENTS (BY SRI. O. MAHESH, ADVOCATE FOR RESPONDENT NO.2; RESPONDENT NO.1 – SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.8.2011 PASSED IN MVC NO.752 OF 2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-3, MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.2047 OF 2012:
BETWEEN:
THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LIMITED BRANCH NO. 371/A, III FLOOR PRESTIGE SHOPPING ARCADE RAMASWAMY CIRCLE, MYSURU – 570 024.
BY NATIONAL INSURNACE CO. LTD., REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX M. G. ROAD, BENGALURU – 560 001. BY IT’S MANAGER.
(BY SRI. O. MAHESH, ADVOCATE) AND:
1. ARUN S. A., AGE 26 YEARS SON OF ANNADORAI RESIDING AT NO. 13, MIG II B ... APPELLANT LAKSHMIKANTHA NAGAR HEBBAL 1ST STAGE, HINKAL POST MYSURU - 570 017.
2. RAMYASHREE, AGE 32 YEARS WIFE OF YOGESH PROPRIETOR VRUSHICA INDUSTRIES NO.15E, III STAGE, INDUSTRIAL SUBURB MYSURU - 570 008.
... RESPONDENTS (BY SRI. B. P. HONAKHANDI, ADVOCATE FOR RESPONDENT NO.1;
RESPONDENT NO.2 - SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.8.2011 PASSED IN MVC NO.752 OF 2010 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-III AND MACT, MYSURU, AWARDING A COMPENSATION OF RS.4,29,000/- WITH INTEREST @6% P.A. ON RS.2,99,000/- PER ANNUM FROM THE DATE OF PETITION TILL DEPOSIT OR PAYMENT.
IN MFA CROB NO.160 OF 2014: BETWEEN:
1. ANNADORAI, AGED ABOUT 54 YEARS SON OF SUBRAMANYA REDDY.
2. MAGESHWARI, AGED ABOUT 49 YEARS SON OF ANNADORAI.
3. ARUN S. A, AGED ABOUT 28 YEARS SON OF ANNADORAI.
CROSS OBJECTORS NO.1 TO 3 ARE RESIDING AT NO.13, MIG II B LAKSHMIKANTHA NAGAR HEBBAL 1ST STAGE, HINKAL POST MYSURU - 570 017.
... CROSS OBJECTORS (BY SRI. B. P. HONAKHANDE, ADVOCATE) AND:
1. SMT. RAMYASHREE AGED ABOUT 34 YEARS WIFE OF YOGESH PROP VRUSHICA INDUSTRIES NO.15E, 3RD STAGE INDUSTRIAL SUBURB, MYSURU - 570 008.
2. THE NATIONAL INSURANCE COMPANY LIMITED, DIRECT AGENT BRANCH, NO.371/A 3RD FLOOR, PRESTIGE SHOPPING ARCADE, RAMASWAMY CIRCLE MYSURU - 570 024.
REPRESENTED BY ITS MANAGER.
... RESPONDENTS (BY SRI. O. MAHESH, ADVOCATE FOR RESPONDENT NO.2; VIDE ORDER DATED 19.11.2015, NOTICE TO RESPONDENT NO.1 IS DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL CROSS OBJECTION HAVING BEEN HEARD IS FILED IN MFA NO.2046 OF 2012 FILED UNDER ORDER 41, RULE 22 OF CODE OF CIVIL PROCEDURE AGAINST THE ORDER DATED 29.8.2011 PASSED IN MVC NO.702 OF 2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III, MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS AND CROSS OBJECTION HAVING BEEN HEARD AND RESERVED ON 21.02.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT The appeals in MFA Nos.2046 of 2016; 2047 of 2016 and 451 of 2012 and Cross Objection No.160 of 2014 arise out of the common judgment dated 29.08.2011 in MVC Nos.702 of 2010 and 752 of 2010 on the file of the Presiding Officer, Fast Track Court – III, and MACT, Mysuru (for short, ‘the Tribunal’). The details of the appeals and the corresponding claim petitions are as follows:
Claim Petition No.
Award Appeal No.
Appeal filed by MVC No.752 of 2010 MVC No.702 of 2010 Rs.4,29,000/-
with interest at 6% per annum from the date of petition till the date of deposit.
Rs.28,41,700/-
respectively with interest at 6% per annum from the date of petition till the date of deposit.
MFA No.2047 of 2012 MFA No.451 of 2012 MFA No.2046 of 2012 and Cross Objection No.160 of 2014 By the Insurance Company The Injured, Sri Arun S.A.
By the Insurance Company The Parents and the sibling of the deceased, Madhusudhan 2. The deceased Madusudhan and Sri. Arun S.A were travelling by motorcycle bearing Registration No. KA- 09-EH-6944 from Bengaluru to Mysuru. Sri. Arun S.A., the younger brother of the deceased, was riding the motorcycle when they were involved in an accident with Tata Ace bearing Registration No. KA-09-B-0827 (offending vehicle) near Shrirangapatna on Bengaluru – Mysuru Road. The deceased Madusudhan as well as Sri. Arun S.A. suffered severe injuries in the accident. Immediately, they were shifted to General Hospital, Shrirangapatna, and later to Columbia Asia Hospital, Mysuru, but Madhusudhan succumbed to the injuries. The parents of the deceased Madusudanan and Sri. Arun S.A., filed petitions in MVC No.702 of 2010 insofar as the demise of Madusudhan. Sri. Arun S.A., who sustained fracture of left and right femur and who was an inpatient for about 20 days with Columbia Asia Hospital, Mysuru, filed petition in MVC No.752 of 2010.
3. The owner of the offending vehicle–respondent No.1 and its insurer, respondent No.2, were arrayed as party respondents in these claim petitions. These respondents filed their respective objection statements. The owner of the offending vehicle filed objection statement denying actionable negligence. The insurance company took up the specific defense that the driver of the offending vehicle, Sri.Govindaraju did not hold an effective and valid driving license to drive the offending vehicle, a goods vehicle; and therefore, the Insurance Company would not be liable to pay the compensation. Further, the Insurance Company contended that the accident was not because of actionable negligence on the part of the driver of the offending vehicle, but because Sri. Arun S.A., the rider of the motorcycle, was rash and negligent in driving the motor cycle.
4. The Tribunal has framed different Issues which required the claimants to establish that the accident was because of rash and negligent driving of the offending vehicle by its driver Sri.Govindraju and that they were entitled to compensation as asserted. The claimant No.1, father of the deceased Madusudanan, is examined as PW.1, Sri. Arun S.A. is examined himself as PW.2 and Dr.
T. Manjunath, who treated Sri. Arun S.A. is examined as PW.3. The claimants have marked Exhibits P.1 to P.37, which includes police records, a copy of the driving license and medical records of Sri. Arun S.A., the appointment letter/s issued by M/s. Wipro and M/s. HSBC to Madusudanan and his salary certificate.
5. The Tribunal, upon appreciation of the material on record, concluded that the accident was because of the rash and negligent driving of the offending vehicle; insofar as the liability of the insurance company, the Tribunal concluded that the Insurance Company would be liable to pay compensation for the following reasons. A scrutiny of the driving license of Sri.Govindaraju (driver of the offending vehicle) establishes that he held a driving license to drive Light Motor Vehicle - NT - Car and Light Motor Vehicle -Transport cab. The Insurance Company has failed to place on record any document to establish the un-laden weight of the offending vehicle. Sri.Govindaraju is not prosecuted by the police for driving goods vehicle without any effective and valid driving license.
6. As regards compensation payable to the claimants for the demise of the deceased Madusudanan, the Tribunal awarded a total sum of Rs.28,41,700/-, which included a sum of Rs.28,05,000/- towards loss of loss of dependency, a sum of Rs.1,700/- towards medical expenses, a sum of Rs.30,000/- towards loss of estate, and a sum of Rs.5,000/- towards funeral and obsequies expenses. As regards compensation for Sri.Arun S.A., the Tribunal awarded a total sum of Rs.4,29,000/- which includes the following sums.
1. Pain and agony Rs.40,000/-
2. Medical expenses Rs.2,90,000/-
3. Loss of earnings, Attendant charges and Special Diet Rs.9,000/-
4. Loss of amenities Rs.50,000/ 5. Future medical expenses Rs.30,000/-
7. The insurance company in the appeals in MFA No.2046 of 202 and MFA No.2047 of 2012 is challenging the Tribunal’s award as regards its finding on who was responsible for the accident, the liability of the Insurance Company and the quantum of compensation. The claimants have filed the appeal in MFA No.451 of 2012 and the Cross Objections in MFA Crob. No.160 of 2014 for enhancement.
8. On the questions of Insurance Company’s liabilities raised in the appeals in MFA No.2046 of 2012 and MFA No.2047 of 2012:
8.1 The learned counsel for the Insurance Company argued in support of the appeals filed on behalf of the Insurance Company on the following grounds insofar as the denial of its liability. The material on record indicate that the deceased Madhusudhan was riding the motor cycle, but a switch was made later to contend that Sri.Arun S.A. was riding the motor cycle. This was because if it is admitted that the deceased Madhusudhan was driving the motor cycle, no compensation would be permissible on the ground that no man take advantage of his own wrong. The deceased Madhusudhan tried to overtake the offending vehicle from the left-hand side, and because of a road hump, he swerved colliding with the offending vehicle first on its left hand rear side and later hit the front of the offending vehicle. These circumstances are borne by the evidence on record viz., IMV Report. The Tribunal without considering the material in this regard has erroneously concluded that the accident was because of the rash and negligent driving of the offending vehicle.
8.2. The driver of the offending vehicle held only a driving license with endorsement to drive the Light Motor Transport Vehicle – Non-Transport Car and Light Motor Transport Vehicle –Transport Cab. As such, the driver of the offending vehicle did not hold a valid driving license to drive a goods vehicle. Therefore, the Insurance Company could not have been fastened with liability even if the Tribunal was justified in concluding that the accident was because of actionable negligence by the driver of the offending goods vehicle.
8.3. The learned counsel for the claimants refuted these submissions on behalf of the Insurance Company. He argued that the canvass as regards the reason for accident and who was driving the motor vehicle at the time of the accident is not borne out by the material evidence on record and such canvass is a complete misreading of the evidence. It is erroneous to canvass that the deceased Madhusudan was riding the motor cycle. As regards, the Insurance Company’s liability on the ground that the driver of the offending vehicle did not hold an effective and valid driving license, the learned counsel placed reliance upon a decision of the Hon’ble Supreme Court in Mukund Dewangan’s case.
9. On the questions of quantum raised in the appeal in MFA No.2046 of 2012 and Cross Objections in MFA Crob. 160 of 2014:
9.1. The learned counsel for the claimants insofar as the canvass for enhancement in compensation in MVC No. 702/2010 submitted the following arguments. The deceased Madhusudhan was a post-graduate in Business Administration, and he was also preparing for the Company Secretary examination. He was a meritorious student. He was initially employed as Zonal Sales Manager with M/s. Reliance Company. He was earning Rs.2,500/- per month. Later, he joined M/s WIPRO as an Associate. He was earning initially Rs.12,760/- but the salary was increased to Rs.16,618/- after six months. He was employed with M/s.WIPRO for about 20 months. He resigned from M/s.WIPRO on 16.7.2010 as he had received a Letter of Appointment from M/s HSBC Company. He was assured an annual pay package of Rs.3,30,000/-. In fact, he was scheduled to travel to Calcutta to report to duty on 22.7.2010. Unfortunately, he met with an accident four days prior to the date scheduled for leaving.
9.2. The learned counsel for the claimants argued that the claimants have produced the Appointment letters issued by Reliance Life Insurance, M/s WIPRO and M/s HSBC in support of their case that the deceased Madhusudhan was thus employed with M/s Wipro and had received an offer from M/s HSBC. The Tribunal in the light of this evidence, took the income of the deceased Madhusudhan at the rate of Rs.3,30,000/- per month and computed loss of dependency deducting 50% towards his personal expenses (as the deceased was a bachelor) and applied multiplier of ‘17’. But, the Tribunal has not granted future prospects, and the appellants are entitled to future prospects in the light of the evidence on record which not only showed that the deceased Madhusudhan was in permanent employment but also had future prospects.
9.3. The learned counsel for the Insurance Company, while re-emphasizing that the Insurance Company cannot be held liable, has asserted that the compensation awarded by the Tribunal for the demise of the deceased Madusudana is unreasonable. The income of the deceased Madhusudhan, even according to the claimants as on the date of his demise, was earning Rs.16,618/- per month i.e., Rs.1,99,416/- per annum. But, the Tribunal has taken the income of the deceased Madhusudhan at Rs.3,30,000/- per annum accepting the claimant’s case as regards the employment offer from M/s. HSBC. However, it is undisputed that the deceased Madhusudhan had not reported to duty and he was only scheduled to travel to Kolkata to report to duty on 22.7.2010. Thus, the Tribunal has taken a higher sum as the annual income of the deceased which factored much higher amount than 50% of Rs.1,99,416/- towards future prospects. Therefore, the compensation awarded is higher.
10. On the questions of quantum raised in the Appeals in MFA No. 2047 of 2012 and the corresponding appeal in MFA No. 451 of 2002.
10.1. The learned counsel for the claimants insofar as the canvass for enhancement in compensation In MVC No. 752 of 2010 has argued the following. The Tribunal has granted a miserly sum of Rs.40,000/- towards pain and suffering though Sri.Arun S.A. had suffered fracture of left and right femur bones and was hospitalized for a substantial period of time. Sri. Arun S.A. suffers from restriction in the movement of the hip and the knees. The restriction in the hip is because of the excess bone formation and the restriction in the knee joint is because of the implant of nail. The stability of both the lower limbs are altered below average. The doctor has opined that Sri.Arun S.A. had suffered disability of 54%. However, the Tribunal has awarded a total sum of Rs.4,29,000/- . The Tribunal ought to have awarded further sum towards pain and suffering, loss of amenities, future medical expenses as well as loss of future income because of permanent disability with addition towards future prospects. Therefore, there has to be an enhancement in the compensation.
10.2 The learned counsel for the Insurance Company argued that the Tribunal had awarded a fair sum of Rs.40,000/- towards pain and suffering and the award of further amounts under the other heads was also justified. However, a sum of Rs.2,90,000/- towards medical expenses was not according to the bills submitted, and therefore, there has to be reduction of the proportionate amount. There is no evidence as regards the vocation of Sri. Arun S.A., and as such, the Tribunal is justified in not awarding any compensation towards loss of future income. Similarly, for the very same reason, no amount can be awarded towards loss of future prospects.
11. In view of the rival submissions, the questions that arise for consideration in these appeal are:
a) Whether the Tribunal has erred in concluding that the accident in question occurred in the manner described by the claimants and that the actionable negligence was on the part of the driver of the offending vehicle, a goods vehicle.
b) Whether the Insurance Company can avoid its liability on the ground that the driver of the offending vehicle, a goods vehicle did not hold a valid and effective driving license to drive the goods vehicle.
c) Whether the Tribunal has awarded just and reasonable compensation to the claimants in MVC No. 702 of 2010 for the demise of the deceased Madhusudhan in the road accident.
d) Whether the Tribunal has awarded just and reasonable compensation to the claimant in MVC No. 752 of 2010.
12. The claimants have marked Exhibit P.2 which is the First Information lodged with the jurisdictional police by a certain Thilak Kumar immediately after the accident. The Police have, after this first information, conducted investigation and filed charge sheet against the driver of the offending vehicle. This first information is categorical that Sri. Arun S.A. was riding the motor cycle with the deceased Madhusudan on the pillion. It is stated in this First Information that the informant was travelling on a motorcycle about 100 ft. behind the motor cycle driven by Sri. Arun S.A. when the offending vehicle (goods vehicle) overtook the informant, and while going over a road hump hit the motor cycle driven by Sri. Arun S.A. from behind and drove the vehicle over the driver and the rider of the motor cycle and stopped the vehicle on the median of the road after some distance. There is no material to impeach this evidence, and cannot be ignored merely because the informant has not been examined. Further, the spot mahazar Ex.P.3 corroborates the contents of the first information. It is not even suggested to Sri. Arun S. A. in his cross examination that he was not driving the motor cycle and the deceased Madhusudhan was driving the motor cycle. Therefore, the canvass that the deceased Madhusudhan was driving the motorcycle at the time of the accident cannot be accepted. Furthermore, in the light of the material on record, it would be too contrived to read IMV Report as bespeaking of Sri. Arun S. A. overtaking the offending vehicle from the wrong side and causing the accident by hitting the offending vehicle first on the rear side and later on the front side. Therefore, the argument by the learned counsel even as regards the accident being brought about by the driver of the motorcycle cannot be accepted and is liable to be rejected. The first question is answered accordingly.
13. The Officer of the Insurance Company, who is examined as RW.1, has deposed that the driver of the offending vehicle did not possess a valid and effective license to drive the goods vehicle. However, the extract of the driving license of the driver of the offending goods vehicle is marked as Ex.R.2. The Tribunal has considered this exhibit and ascertained that Sri.Govindraju was licensed to drive both Light Motor Vehicle-NT-Car and Light Motor Vehicle Transport – Cab and therefore, the driver of the offending vehicle was entitled to drive a Light Motor Vehicle including the transport vehicle which would include Light Motor Goods Vehicle. The Insurance Company has not placed any material on record to establish the unladed weight of the offending vehicle. However, the question as to a person holding a Light Motor Vehicle Transport License could drive a Light Motor Goods Vehicle is answered by the Hon’ble Supreme Court in Mukund Dewangan’s case. In this light of the decision in Mukund Dewangan’s case and the Tribunal's discussion as aforesaid, the learned counsel’s argument in this regard cannot be accepted. The second question is answered accordingly.
14. Insofar as compensation payable to the claimants towards the loss of dependency for the demise of the deceased Madhusudhan, there is no dispute that the deceased Madhusudhan was aged 26 and a bachelor, and therefore, the appropriate multiplier would be '17' and 50% of the income should be deducted towards the personal expenses of the deceased. Similarly, because the deceased's employment with M/s Wipro and the offer of employment with M/s HSBC was permanent, there is no dispute that the claimants would be entitled for future prospects at 50% of the actual income. However, the only dispute is as regards what should be taken as the income of the deceased for the purpose of computation of loss of dependency.
15. The deceased, as of the date of the accident, was on the cusp of a new employment with M/s HSBC having tendered resignation with M/s Wipro. He was earning Rs.16,618/- per month (that is, Rs.1,99,416/- per annum) with M/s Wipro, but had quit employment with M/s Wipro because he had received an appointment letter from M/s HSBC with an annual pay package of Rs.3,30,000/-. He was yet to report to duty with M/s HSBC, but, as established by the material on record (the train ticket purchased by him and marked as an exhibit), he was scheduled to travel to Kolkata on 22.7.2010. Therefore, the questions that arise are: should the income of the deceased from M/s Wipro, with the necessary accretion thereafter towards future prospects, be considered for the purposes of computation of loss of dependency, as canvassed by the Insurance Company or as canvassed by the claimants, should the income that the deceased would have drawn from M/s HSBC, with the necessary accretion thereafter towards future prospects, be considered for the purposes of computation of loss of dependency. The argument in favour of taking the income drawn by the deceased from M/s Wipro with accretion towards future prospects, is that the accretion towards future prospects based on his income from M/s Wipro would offset any increase in income that he would have had if indeed he had joined M/s HSBC. The argument in favour of taking the income that the deceased would have drawn from M/s HSBC, is that the fact that the deceased, but for the unfortunate intervening accident, would be drawing such income and this cannot be ignored. This piquant situation should be resolved as against the touchstone of just and fair compensation viz., the courts must award such compensation which should neither be a bonanza nor a pittance as declared by the Hon'ble Apex Court in Pranay Sethi's case. If only the income drawn by the deceased from M/s Wipro is taken into consideration, the income that he would have drawn from M/s HSBC but for the unfortunate intervening accident will be completely ignored. If the income that he would have drawn from M/s HSBC is taken into consideration, the other possible uncertainties that could have intervened (that is, other than the accident) would be discounted. Therefore, in the considered opinion of this court the mean of the two incomes viz., the income that the deceased was drawing from M/s Wipro and that he would have drawn from M/s HSBC could be taken more appropriately to arrive at a just sum towards loss of dependency. This would ensure that the award is neither a bonanza nor a pittance. Thus, the computation of the loss of dependency, and the total award of compensation, would be as follows:
Mean of Rs.1,99,416/- (Income from M/s Wipro) + Rs.3,30,000/- (Income from M/s HSBC) Accretion of 50% for Future Prospects Mean of the Two Incomes with accretion of 50% for Future Prospects Deduction of 50% of the Income towards personal expenses of the deceased from 3,97,062.00 Therefore, loss of dependency -
Rs.2,64,708.00 Rs.1,32,354.00 Rs.3,97,062.00 Rs.1,98,531.00 Rs.1,98,531x17 Rs.33,75,027.00 Conventional Amount towards loss of Estate, Funeral Expenses and a sum of Rs.1700 towards medical expenses Rs.36,700.00 Total (3,375,027/- + 31700/-) Rs.34,11,727.00 Amount awarded by the Tribunal Rs.28,41,700.00 Difference in amount Rs.5,70,027.00 Thus, answering the third question is answered in favour of the claimants in MVC No. 702 of 2010, who have filed Cross Objections in MFA Crob. 160 of 2014, and it is held that the claimants are entitled for enhancement in a sum of Rs.5,70,027/- with interest at the rate of 6% per annum from the date of petition till the date of deposit.
16. The claimant in MVC No. 752 of 2010 is seeking for enhancement in compensation in the amount awarded towards pain and suffering. It is his contention that he has suffered multiple injuries to his lower limb as deposed by the doctor, PW3. The doctor has stated that the claimant suffers from loss of stability of the right lower limb as well as the left lower limb. There is muscle wasting in the left thigh. As such, there is a restriction in the movements of the hip as well as the knee joint. The claimant has to undergo two more operations for removal of implants, and the cost of such operations would be Rs.60,000/-. Therefore, the claimant would be entitled for enhancement in compensation towards pain and suffering and towards future medical expenses. The claimant has suffered three fractures and consequential restriction in the hip as well as knee joints. Even according to the schedule evolved for settlement in Lok Adalat, a sum of Rs.40,000/- is granted towards one major fracture with addition of Rs.10,000/- for each fracture. The evidence on record as regards the injuries, and the other circumstances such as hospitalization and multiple surgeries, justify enhancement in a sum of Rs.20,000/-towards pain and suffering. The doctor has said that the claimant will have to incur a sum of Rs.60,000/- towards further surgeries. The Tribunal has awarded only a sum of Rs.30,000/–, as such, the claimant would be entitled for another sum of Rs.30,000/– towards future medical expenses. The claimant would also be entitled for a higher sum towards loss of amenities in a sum of Rs.30,000/-. The Tribunal has not awarded any amount towards loss of future income. The claimant has not produced any document except his own testimony that after his education, he was working as Asst. Marketing Trainee Officer and he was earning a sum of Rs.7500/– per month. The claimant has not even spoken about his educational qualification, or about his employer except stating that he was employed in Bangalore. In the absence of the claimant's own evidence as regards his educational qualification and the details of his employment such as the name of the employer, the date of joining employment and the nature of job, any award of compensation towards loss of future earning capacity would be based on presumptions, and that would be impermissible in law. Therefore, the claimant cannot succeed in the canvass for enhancement in compensation under the head of loss of future earning capacity. As such, the claimant will be entitled for enhancement in a total sum of Rs.80,000/– as indicated above.
Thus, answering the fourth question in favour of the claimant in MVC No. 752 of 2011, who has filed in MFA 451 of 2012, it is held that the claimant is entitled for enhancement in a sum of Rs.80,000/- with interest at the rate of 6% per annum from the date of petition till the date of deposit.
17. For the foregoing, the following order:
a) The appeals field by the insurance company in MFA No. 2046 of 2012 and MFA No. 2047 of 2012 impugning the judgement and award in MVC No.702 of 2010 and MVC No. 752 of 2011 on the file of the Presiding Officer, Fast Track Court-III, MACT, Mysuru are dismissed.
b) The Cross objection in MFA Crob No.160 of 2014 is allowed in part and the judgement and award in MVC No. 702 of 2010 on the file of the Presiding Officer, Fast Track Court-III, MACT, Mysuru is modified granting to the claimant-Cross objector enhanced compensation of Rs.5,70,027/- along with interest at the rate of 6% from the date of the petition till the date of deposit.
c) The appeal in MFA No. 451 of 2012 is allowed in part, and the judgement and award in MVC No.752 of 2011 on the file of the Presiding Officer, Fast Track Court- III, MACT, Mysuru is modified granting to the claimant-appellant in the aforesaid appeal and additional compensation of Rs.80,000/– along with interest at the rate of 6% per annum from the date of the petition till the date of deposit;
d) The insurance company is directed to deposit the enhanced compensation in both the aforesaid Cross objection/appeal, and any further amount as may be required to satisfy the judgement and award in MVC No. 702 of 2010 and MVC No. 752 /of 2011, within a period of 6 weeks from the date of receipt of a certified copy of this judgement;
e) The amount in deposit, if any, in the appeals in MFA No. 2046 of 2012 and 2047 of 2012 be transferred to the Tribunal for disbursal in terms of its awards in the aforesaid claim petitions in MVC No. 702 of 2010 and 752 of 2010.
e) No costs.
Sd/- Sd/-
JUDGE JUDGE SA