IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 8485 OF 2015 (MV) BETWEEN 1. Chandru S/o Chikkalingegowda Aged about 51 years 2. Smt. Kempajamma W/o Chandru Aged about 41 years 3. Kum. Shruthi D/o Chandru Aged about 21 years All are R/at Menasiganahalli Village, Channapatna Taluk, Ramanagara District. ... Appellants (By Sri. Shripad. V. Shastri, Advocate) AND 1. M/s M.G.M. Transports (Madras) Pvt. Ltd., No. 189, Wall Tax Road, Chennai-600003 Tamil Nadu State.
2. HDFC ERGO General Insurance Company Ltd., Legal office, No.14, H.M. Geneva House, M. G. Road, Bangalore By its Manager. ... Respondents (By Sri. D. Vijaykumar Advocate 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 20.07.2015 passed in MVC No. 258/2013 on the file of the Senior Civil Judge and JMFC, Additional MACT, Channapattana, Ramanagar District, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Hearing, this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the appellants and the learned counsel for respondent nos.1 & 2 and perused the records.
2. The legal heirs, who are the dependents of the deceased have preferred this appeal, being not satisfied with the quantum of compensation awarded in the impugned judgment dated 20.07.2015, passed by the Senior Civil Judge & JMFC & Addl. MACT, Channapattana made in MVC.No.258/2013, seeking enhancement of compensation.
4. The facts of the case are that on 05.06.2013 at about 1.30 p.m. when the deceased Madhu S.C. was riding the motor cycle bearing No.KA-42-HC-9283 on the left side of the NH-7 Service Road, near Pesto Company, Bommasandra, Anekal Taluk, at that time the driver of a lorry bearing No.TN-04-P-2904 had come in a rash and negligent manner so as to endanger human life in high speed from behind and dashed against the said motor cycle. Due to the impact, the deceased fell down from the bike and the wheel of the said lorry is said to have run over the deceased, as a result of which the deceased sustained grievous injuries and died on the spot.
5. After service of notice, the owner of the offending vehicle – Respondent No.1 remained exparte. However, the insurer – Respondent No.2 appeared through counsel and filed written statement and contested the claim petition. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer.
6. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the offending vehicle. The deceased was aged 22 years and was working as a Technician with a private company in Bangalore and was earning Rs.10,000/- per month, as a result of which the claimants – appellants lost the love and affection and also the earning member of the family. But however, though the pay slips Exhibits P-12 & 13 and the salary certificate of the deceased Exhibit P-14 were produced, since the author of Exhibits P12 to 14 were not examined, the Tribunal had failed to rely on the said contents of the exhibits. Hence, taking the notional income of the deceased at Rs.5,000/- per month and the deceased being aged 22 years with a permanent job, the Tribunal added 50% of the income towards future prospects and arrived at the total income of the deceased at Rs.7,500/-. Thereafter, deducting 50% towards his personal expenses he being a bachelor, finally the income was arrived at Rs.3,750/- per month. Thus, the total loss of dependency was arrived at Rs.8,10,000/- (3750 x 12 x 18). Further, Rs.10,000/-
was awarded towards ‘Transportation of the dead body and funeral expenses’, Rs.20,000/- towards ‘Loss of estate’ and Rs.20,000/- towards ‘Loss of love and affection’. Thus, the Tribunal awarded a total compensation of Rs.8,60,000/- with interest at 6% per annum from the date of petition till the date of deposit.
7. The learned counsel for the appellants seeks for intervention of the impugned judgment and award passed by the court below contending that when his pay bills and salary certificate were produced, the monthly income of the deceased ought to have been taken at Rs.10,000/- and should have arrived at the ‘Loss of dependency’. Further, the Tribunal ought to have granted more compensation towards conventional heads such as ‘Funeral expenses’, ‘Loss of estate’, and ‘Loss of love and affection’ having regard to the ratio laid down by the Apex Court in the case of RAJESH & ORS. V. RAJBIR SINGH & ORS., (2013) 9 SCC 54. It is further contended that the Tribunal has failed to consider the evidence on record that the deceased was a bachelor. The dependants of the deceased being three in number, under such circumstances, deducting the personal expenses at 50% has resulted in a serious injustice and the deduction ought to have been taken at one-third of his income. Hence, the learned counsel prays that the deduction of personal expenses be applied at one-third of his income and then the loss of dependency be arrived at. On all these grounds urged, the learned counsel for the appellant seeks for enhancement of compensation 8. Per contra, the learned counsel for the respondent – Insurer has taken me through the evidence of PW-1 and so also the contention taken in the claim petition made by the Tribunal seeking compensation. Based upon the evidence of PW-1 and PW-2 and so also the documents at Exhibits P1 to P14 produced by the claimant and on evaluating the entire evidence, the Tribunal has awarded compensation at Rs.8,60,000/- with interest at 6%. Therefore, the learned counsel submitted that the tribunal, on appreciation of the evidence 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.
9. On careful evaluation of the material on record, it is seen that the claimants being parents and unmarried sister of the deceased, are the dependents of the deceased who was aged 22 years. Prior to his death, he was working as a Mechanic and was earning a sum of Rs.10,000/- p.m. and he was the only earning member of the family. Due to the untimely death of the deceased, his family members have been put to great hardship. Though the Pay slips and Salary Certificate were produced to evidence the fact that the deceased was earning Rs.10,000/- per month, due to the fact that the author of the said Exhibits P12 to 14 were not examined, the Tribunal has notionally taken the income of the deceased at Rs.5,000/-. The income ought to have been taken at least at Rs.8,000/- to arrive at the loss of dependency. Since I find that the income taken at Rs.5,000/- is inadequate, it is hereby enhanced by another Rs.3,000/-. Hence, the income of the deceased is taken at 8,000/-. In view of the fact that it is not proved that the deceased had a permanent job, the Tribunal was not right in adding 50% towards future prospects. Hence, I find that adding 40% of the income towards future prospects, would be justifiable. Hence, after adding 40% to the income of Rs.8,000/-, it would come to Rs.11,200/-. Since the deceased was a bachelor, I find the Tribunal has rightly deducted one- half towards his personal expenses, which requires to be maintained. Hence, deducting one-half towards his personal expenses, the monthly income of the deceased would come to Rs.5,600/-. The deceased being aged 22 years at the time of his death, the appropriate multiplier taken by the Tribunal at ‘18’ is also in order. Hence, the compensation towards ‘Loss of dependency’ would be Rs.12,09,600/-, (5600 x 12 x 18) as against Rs.8,10,000/- awarded by the Tribunal. However, the compensation awarded by the Tribunal under conventional heads namely towards ‘Loss of estate’ and ‘Loss of love and affection’ is restricted to Rs.10,000/- each instead of Rs.20,000/- under each of the heads. Hence, the compensation under the conventional heads is restricted to Rs.30,000/- in respect of all the heads put together. Thus, in all, the claimants are entitled to total compensation of Rs.12,39,600/- as against Rs.8,60,000/- awarded by the Tribunal.
Accordingly, the appeal is allowed in part. In modification of the impugned judgment and award dated 20.07.2015 passed by the Senior Civil Judge & JMFC & Addl. MACT, Channapattana in MVC No.258/2013, the compensation payable to the claimants is enhanced from Rs.8,60,000/- to Rs.12,39,600/-. The enhanced compensation would come to Rs.3,79,600/-. The Respondent No.2 - insurer shall deposit the enhanced compensation with interest at 6% before the Tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification and acknowledgement. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE KS