IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JUNE 2017 BEFORE THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A. NO.8153/2015 (MV) BETWEEN:
1. Smt. Dadamma, W/o Late Lokesh @ Lohith, Aged about 31 years, Agriculturist, 2. Amrutha, D/o Late Lokesh @ Lohith, Aged about 10 years, 4th Std Student, Swami Vivekananda Primary School, Challakere – 577522.
3. Abhishek, S/o Late Lokesh @ Lohith, Aged about 8 years, 2nd Std Student, Government Higher Primary School, Varavu – 577522.
(Appellants No. 2 and 3 are minors represented by their natural guardian Mother i.e., Appellant No.1) 4. Thippamma, W/o Late Katappa, Aged about 66 years, Agriculturist, All R/o Varavu Village, Challakere Taluk, Chitradurga District – 577501. … Appellants (By Sri. G. Shankar Goud, Advocate) AND:
1. Katamma, W/o Badagi Palaiah, Aged about 61 years, Owner of Tractor-trailer, Bearing No. KA – 16/B-8077-78. Varavu Village, Challakere Taluk, Chitradurga District – 577501.
2. United India Insurance Co. Ltd., Akkamahadevi Road, PJ Extension, Davanagere – 577001. ...Respondents (By Sri. K. Suresh, Advocate for R-2.
Respondent No.1 served) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 20.07.2015 passed in MVC No. 63/2014 on the file of the Senior Civil Judge and Additional MACT, Challakere, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal coming on for hearing this day, the Court delivered the following:
J U D G M E N T The appeal is directed against the judgment and award dated 20.7.2015 passed by the Senior Civil Judge & Additional MACT, Challakere in MVC.No.63/2014 wherein compensation Rs.7,02,000/- together with interest at 6% per annum from the date of petition till realization was ordered. The petitioners claim that the said amount as insufficient and in the result the present appeal is filed for enhancement of compensation.
2. For the sake of convenience, herein after the parties are referred to with reference to their rankings in the Tribunal.
3. The claim petition was filed before the Senior Civil Judge & Additional MACT, Challakere, in respect of accident on 24.11.2013, when one Lokesh @ Lohit was returning to Varavu from Giddapura village on his motor cycle bearing No.KA-06-3328, at about 8.30 p.m., near the bridge of Thalak, the driver of tractor trailer bearing No.KA-16-B-T-8077-8078 came from opposite direction in a rash and negligent manner, dashed to the motor cycle due to which Lokesh sustained grievous injuries and was declared dead when taken to Challakere hospital. Thus petitioner No.1 being the wife, petitioner Nos. 2 and 3 being the children and petitioner No.4 being the mother of deceased Lokesh filed the claim petition, claiming compensation. Respondent No.1 is stated to be the owner of the offending vehicle and respondent No.3 the insurer. Respondent-Insurance company contended that the compensation granted was highly excessive and abnormal. He admits the ownership of the vehicle and issuance of the policy.
4. The Tribunal framed the issues pertaining to the occurrence of the accident, negligence, disability and entitlement for compensation. Petitioner No.1 got herself examined as PW.1 and one V.T. Shankarmurthy as PW.2. On behalf of the petitioners documents were marked as Exs.P.1 to P.8 including complaint, FIR, charge sheet and genealogy tree. The respondent examined RW.1 to RW.5 and marked Exs.R.1 to R.4 including policy, MLC Register and related documents. It is seen that issue No.2 was in respect of driver of the tractor and trailer possessing valid and effective driving license. In so far as possessing of the license, it is observed by the learned Member in para 26 at page 19 of the judgment as under:
“26. Issue NO.2. It is the specific contention of respondent No.2 that at the time of accident driver of TT Unit was not having effective driving license to drive the vehicle. The said fact is not corroborated by respondent No.2, though the Senior Assistant of respondent No.2, though the Senior Assistant of respondent No.2 appeared and filed his chief examination on oath. He did not whispered anything about not holding of effective driving license by the driver of respondent No.1 at the time of accident. On the contrary the final report submitted by the I.O. evident that at the time of accident the driver of TT Unit was having valid and effective driving license for the reason he did not filed the charge sheet under Section 3 r/w 181 of MV Act against the driver of the TT Unit.”
5. The learned counsel for the appellant submitted that the learned member of the Tribunal held that the respondent therein accepted the issuance of policy in insuring the offending vehicle. The learned member of the Tribunal also held that the respondent-Insurance Company having claimed the plea of absence of valid and proper driving license, failed to discharge the burden cast on them. There is no explanation by the insured either before the Tribunal or before this Court regarding the driver of the offending vehicle having no valid and proper driving license.
6. In so far as the amount of compensation granted to the petitioners is concerned, avocation of the deceased Lokesh was taken as agricultural Coolie. By taking his monthly income at Rs.6,000/-, by deducting 1/3rd towards his personal expenses and by applying appropriate multiplier of ‘14’ according to the age of the deceased, i.e., 41 years, loss of dependency was arrived at Rs.6,72,000/- (6,000 x 1/3 = 4000 x 12 x 14 = 6,72,000/-).
7. Learned counsel for the appellants would submit that the respondent have not preferred appeal against the judgment and decree of the Tribunal. Thus in the circumstances, the compensation granted by the learned Member of the Tribunal under different heads takes the following shape:
This appeal is preferred for enhancement of compensation by the claimants. The total compensation is Rs.7,02,000/-. However, it is to be seen that the learned Member of the Tribunal has erred in not considering the future prospects of the deceased and also in not considering the number of dependents of the deceased. In so far as occurrence of the accident is concerned, the same is reflected by Ex.P.2-FIR against the driver of the vehicle NO.KA-16-B-T-8077- 8078. The cause of death according to the post mortem report is due to hemorrhage and charge sheet/final report is filed against driver Tippeswamy. In the circumstances, this Court is of the opinion that notional monthly income of Rs.6,000/- taken by the Tribunal is just and proper. However, if future prospect of 50% is added considering the age of the deceased, total monthly income works out to Rs.9,000/-. Out of the same, considering the number of dependents at 4 and life style of the deceased, 1/4th has to be deducted towards the personal expenses of the deceased. Thus considering the facts and circumstances, the compensation is redertermined as under:
8. Monthly income of the deceased is taken at Rs.9,000/- [6000 + 3000 (i.e., 50% of the salary)]. After deducting 1/4th, it works out to Rs.6750/-[9000- 2250=6750 i.e., 1/4th of Rs.9000/-)]. Thus annual dependency works out to Rs.81,000/- (6750 x 12). If the same is multiplied by appropriate multiplier of 14, total loss of dependency works out to Rs.11,34,000/- (81000 x 14). Rs.20,000/- awarded by the Tribunal towards consortium and loss of love and affection and Rs.10,000/- awarded towards funeral expenses are just and proper and do not require interference.
9. The Tribunal has failed to calculate the compensation which should be just and which mandates just approach. Thus the appellants are entitled to total compensation of Rs.11,64,000/-. Thus in view of the said deficiency, the judgment and award suffers from infirmities and requires to be set aside and the appeal deserves to be partly allowed. Hence, the following:
O R D E R The appeal is allowed-in-part. The judgment and award dated 20.7.2015 passed by the Senior Civil Judge & Additional MACT, Challakere in MVC.No.63/2014 is set aside. The appellants are entitled to total compensation of Rs.11,64,000/- instead of compensation of Rs.7,02,000/- awarded by the Tribunal. Respondent No.2 is directed to deposit the enhanced compensation of Rs.4,62,000/- along with interest at the rate of 6% per annum from the date of petition till the date of deposit. The apportionment of the compensation remains the same as ordered by the learned Member of the Tribunal. Draw decree accordingly.
Sd/- JUDGE RS/* CT: pgg