IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.7833/2015 (MV) Between:
1. Smt. Deveeramma, W/o Late Puttamadappa, Aged about 56 years, 2. Master Viji @ Vijay, S/o Late G.Madapa, Aged about 8 years, Appellants are R/at:
No.6/12A, Kemmathapalli Achubalu Post, Denkanikottah, Dharmapuri District, Tamilnadu (Note: subject to judgment passed by the tribunal, The petitioner No.2 was died and the present appellants are the only Legal Heirs) ... Appellants (By Sri. Prakash M.H., Advocate) And:
1. The Oriental Ins. Co. Ltd., Office at DO-6, No.2, 2nd Floor, 9th Main Road, Opp. Pai Viceroy Hotel, 3rd Block, Jayanagar, Bengaluru – 560 011.
2. Vishakanta.M, S/o Mahadevappa, R/a. No.63/3, 21st B Maintainable Road, Muthurayaswamy Layout, Sunkadakatte, Bengaluru – 560 091.
... Respondents (By Sri. V.Narayana Swamy, Advocate for R1;
R2-Notice dispensed with vide order dated 19/10/2016) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the Judgment and Award dated 06.07.2015 passed in MVC No.2344/2014 on the file of the I Additional Small Causes Judge & XXVII ACMM, MACT, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This Appeal 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 sides.
2. I have heard the learned counsel appearing for the appellants/claimants and the learned counsel appearing for respondent No.1/Insurance Company.
3. Brief facts of the case are that on 17.05.2014 at about 2.30 p.m., when the deceased Mangalamma was proceeding on motor cycle bearing registration No.KA-01-EL-4208 as a pillion rider, from Garalapura towards Kemmathpalli village and near Kadushivanahalli Village, Kodihalli Hobli, Kanakapura Taluk, Ramanagara District, the rider of the said motor cycle rode the same in a rash and negligent manner, on account of which the motor cycle toppled. Mangalamma sustained grievous injuries in the said accident and she was shifted to Kanaka Nursing home, Kanakapura, Wherein first aid treatment was given and from there she was referred to Nimhans Hospital, Bangalore. However, not responding to the treatment, she succumbed to the injuries.
4. The claimants being the mother and two minor children of the deceased sought for a total compensation of Rs.25,00,000/-. Before the tribunal, the mother of the deceased got examined herself as PW.1. Exs.P,1 to P.15 were marked in evidence. Though the claim petition was resisted by the insurance company. However, no witnesses were examined and no documents were marked.
5. The tribunal after considering the evidence and material on record awarded a total compensation of Rs.10,75,000/- with interest @ 6% p.a. from the date of petition till complete realization, under the following heads:
Sl No. Heads Amount in rupees a Loss of dependency 9,00,000.00 b Transportation of dead body and funeral expenses 25,000.00 c Loss of love and affection 20,000.00 d Loss of estate 30,000.00 e Loss of care and guidance of minor children 1,00,000.00 Total 10,75,000.00 6. Seeking enhancement of compensation awarded by the tribunal, the learned counsel for the appellants would contend that the deceased was an agriculturist and a sericulturist and she used to earn a sum of Rs.10,000/- per month. Her husband was no more and she was the only earning member of the family who was maintaining her mother and two minor children at the time of accident. He submits that the total compensation awarded by the tribunal is on a lower side and accordingly seeks to enhance the compensation.
7. Per contra, learned counsel appearing for respondent No.1/Insurance Company justified the compensation awarded by the tribunal contending that the same is just and reasonable and no enhancement is called for. Accordingly he seeks to dismiss the appeal.
8. The accident involving the motor cycle bearing registration No.KA-01-EL-4208, which was insured with respondent No.1 is not in dispute. The tribunal has held that the accident was due to the rash and negligent riding by the rider of the motor cycle which is also not in dispute.
9. According to the learned counsel for the appellants, the deceased was having an income of Rs.10,000/- p.m. as an agriculturist. However, there is no convincing evidence apart from the oral testimony of PW1 to hold that the deceased was having an income of Rs.10,000/- per month. The tribunal has taken the notional income of the deceased as Rs.5,000/- per month. Considering the fact that the husband of the deceased was no more and she was the only earning member of the family and in the facts and circumstances of the case I deem it appropriate to take the income of the deceased at Rs.8,500/- per month. An addition of 40% has to be made to the income towards ‘future prospects’ and after deducting 1/3rd of the income towards personal expenses and applying the multiplier ‘15’, which is the appropriate multiplier as the deceased was aged about 38 years at the time of accident, the claimants are entitled for a compensation of Rs.14,27,940/- toward loss of dependency. A sum of Rs.30,000/- is awarded towards loss of estate, transportation of dead body and funeral expenses.
10. It is submitted by the learned counsel for the appellants that the claimant No.3 i.e., minor son of the deceased is no more. The other claimants being the mother and minor daughter of the deceased and considering the facts and circumstances of the case, a sum of Rs.25,000/- each is awarded towards loss of love and affection. Claimants/appellants are therefore entitled for a total compensation of Rs.15,07,940/- which is rounded off to Rs.15,08,000/- as against Rs.10,75,000/- awarded by the tribunal. Accordingly, I pass the following order:
i) The appeal is allowed in part.
ii) The judgment and award dated 06.07.2015 passed in MVC No.2344/2014 on the file of Motor Accident Claims Tribunal, Bangalore (SCCH-11) is hereby modified.
iii) The appellants/claimants are entitled for a total compensation of Rs.15,08,000/- with interest of 6% p.a. from the date of petition till the date of deposit.
iv) The respondent No.1/Insurance company shall deposit the compensation amount within a period of four weeks from the date of receipt of a copy of this order.
iv) The appellants/claimants are entitled for compensation awarded in equal proportion.
v) Out of the compensation awarded to appellant/claimant No.1, a sum of Rs.3,00,000/- shall be deposited in a fixed deposit in any Nationalized or Scheduled Bank for a period of three years. The remaining amount shall be released by way of account payee crossed cheque on proper identification vi) The entire share of claimant/appellant No.2 shall be invested in fixed deposit in any nationalized or Scheduled Bank till she attains the age of majority.
vii) The accrued interest on the awarded amount shall be released to claimant No.1 by means of account payee crossed cheque on proper identification.
Four weeks time is granted to Sri V.Narayana Swamy, the learned counsel for respondent No.1 to file the vakalath.
Sd/- JUDGE DS