IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.4427 OF 2014 (MV - I) C/W M.F.A.NO.6690 OF 2014 IN M.F.A. NO.4427/2014 BETWEEN:
THE DIVISIONAL CONTROLLER, OWNER CUM CUSTODIAN OF INTERNAL INSURANCE FUND OF THE KSRTC BUS BEARING NO.KA-09 F 3097, K H DOUBLE ROAD, SHANTHI NAGAR, BANGALORE – 560 027. REPRESENTED BY THE CHIEF LAW OFFICER, KSRTC, CENTRAL OFFICES, K H ROAD, SHANTHINAGAR, BANGALORE – 560 027.
... APPELLANT (BY SRI.K.NAGARAJA, ADVOCATE) AND:
1. DADA PEER, S/O SAB JANSAB, AGED ABOUT 47 YEARS, 2. NAZIMA, W/O DADA PEER, AGED ABOUT 42 YEARS, 3. PARVEZ AHAMED, S/O DADA PEER, AGED ABOUT 27 YEARS, 4. ASEEM ANWAR D., S/O DADA PEER, AGED ABOUT 23 YEARS, ALL ARE R/O HOUSE NO.2284, 6TH CROSS, BASAVESHWARA ROAD, K R MOHALLA, MYSORE.
N/R/A GANJAM, S R PATNA, MANDYA DISTRICT – 571 438.
... RESPONDENTS (BY SRI.R.PRAMOD, ADVOCATE FOR R1 TO R4) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.03.2014 PASSED IN MVC NO.1618/2012 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND MACT, SRIRANGAPATTANA, AWARDING A COMPENSATION OF RS.5,70,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION OR DEPOSIT.
IN M.F.A. NO.6690/2014 BETWEEN:
1. SRI. DADAPEER, S/O SAB JAN SAB, AGED 47 YEARS, 2. NAZIMA W/O DADAPEER, AGED 42 YEARS, 3. PARVEEZ AHAMED, S/O DADA PEER, AGED 27 YEARS, 4. ASEEM ANWAR D., S/O DADAPEER, AGED 23 YEARS, THE APPELLANT Nos.1 TO 4 ARE R/O HOUSE NO.2284, 6TH CROSS, BASAVESHWARA ROAD, K R MOHALLA, MYSORE.
NOW RESIDING AT GANJAM, S R PATNA, MANDYA DISTRICT – 571 436.
(BY SRI. PRAMOD R., ADVOCATE) AND:
DIVISIONAL CONTROLLER, OWNER CUM CUSTODIAN OF INTERNAL INSURANCE FUND OF THE KSRTC BUS BEARING NO.KA-09 F 3097, K H DOUBLE ROAD, SHANTHINAGAR, BANGALORE – 560 028.
(BY SRI. K.NAGARAJA, ADVOCATE) ... APPELLANTS ... RESPONDENT THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.03.2014 PASSED IN MVC NO.1618/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MACT, SRIRANGAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Both the claimants and respondent-Corporation are in appeals under Section 173(1) of the Motor Vehicles Act, against judgment and award dated 17/3/2014 in M.V.C.No.1618/2012 on the file of the Principal Senior Civil Judge and MACT, Srirangapattana.
2. The claimants in MFA.No.6690/2014 are praying for enhancement of compensation not being satisfied with the quantum of compensation awarded by the Tribunal. Whereas, the respondent-Corporation is in MFA.No.4427/2014 on the ground that the multiplier adopted by the Tribunal is incorrect and prays for reduction of the quantum of compensation awarded by the Tribunal.
3. The claimants are parents and brothers of deceased, Wasim D @ Wasim Ahamed. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of one Wasim D @ Wasim Ahamed in a road traffic accident. It is stated that on 11-10-2012, when the deceased was proceeding in his motorcycle bearing Reg.No.KA-09-ES-4443, KSRTC bus bearing Reg.No.KA-09-F-3097 driven by its driver in a high speed with rash and negligent manner dashed to the motorcycle of the deceased from backside. Due to which, the deceased fell down and KSRTC bus ran over the motorcycle and on the hip of the deceased. Immediately, the deceased was shifted to K.R.Hospital, Mysore and while he was on treatment, he succumbed to the injuries. It is stated that the deceased was aged 23 years as on the date of accident and he was working as car mechanic, earning Rs.15,000/- per month.
4. The respondent-Corporation appeared before the Tribunal and filed its objections denying the claim petition averments. It is further stated that the accident had taken place solely due to the negligent driving of the deceased. Further contended that the rider of the motorcycle was not having valid and effective driving licence to drive the motorcycle as on the date of accident.
5. Claimant No.1-father of the deceased examined himself as PW-1 and one more witness as PW-2, apart from marking documents Exs.P-1 to P-15. Respondent examined RW-1 and no documents were marked.
6. The Tribunal on appreciating the material on record, awarded total compensation of Rs.6,20,000/- on the following heads with interest at the rate of 6% per annum from the date of petition till its realization. Aggrieved by the same, both the claimants and respondent-Corporation are before this Court in these two appeals.
Amount in (Rs.)
7. Heard the learned counsel for the claimants and learned counsel for the respondent-Corporation. Perused the material on record including the lower court records.
8. Learned counsel for the claimants would submit that the income of the deceased assessed by the Tribunal at Rs.5,000/- per month is on the lower side. He further submits that the deceased was working as car mechanic and was earning Rs.15,000/- per month. Further he submits that the deceased was aged 23 years as on the date of accident. But the Tribunal failed to award any compensation on the head of ‘Future prospects’. It is his further submission that claimant Nos.1 & 2 who are the parents of the deceased would be entitled for compensation on the head of ‘Filial consortium’. Thus, prays for enhancement of compensation.
9. Per contra, learned counsel for the respondent- Corporation would submit that the Tribunal committed an error in awarding compensation adopting multiplier ‘18’ taking the age of the deceased. He further submits that for applying correct multiplier, the age of the younger parent has to be taken. It is his further submission that the age of the deceased is 26 years as per driving licence, which is placed on record as Ex.P11 and not 23 years as claimed. Thus, prays for modification of the award.
10. On hearing the learned counsels for the parties and on perusal of the material placed on record including the lower court records, the following points would arise for consideration in the facts and circumstances of the case.
a) Whether the income of the deceased assessed by the Tribunal at Rs.5,000/- per month is proper and correct?
b) Whether the multiplier of ‘18’ assessed by the Tribunal taking the age of the deceased is proper and correct?
c) Whether the claimants would be entitled for adding 40% of the assessed income towards ‘Future prospects’?
d) Whether the claimant Nos.1 & 2 would be entitled for compensation on the head of ‘Filial consortium’?
Answer to point (a) would be in negative and answer to point (b), (c) & (d) would be in affirmative for the following reasons.
11. The accident that had taken place on 11-10-2012 involving motorcycle bearing Reg.No.KA-09-ES-4443, KSRTC bus bearing Reg.No.KA-09-F-3097 and the accidental death of one Wasim D @ Wasim Ahamed are not in dispute in these appeals. The accident is of the year 2012. The claimants state that the deceased was working as car mechanic and was earning Rs.15,000/- per month but to substantiate their contention, the claimants have not placed on record any material. In the absence of any material to establish the exact income of the deceased, the Tribunal assessed the income notionally at Rs.5,000/- per month, which is on the lower side. This Court and the Lok Adalath while settling the accident claims of the year 2012, would normally assess the notional income at Rs.7,000/- per month, wherever there is no material to establish the exact income. In the instant case also in the absence of any document/material to indicate the exact income of the deceased, it would be appropriate to take Rs.7,000/- per month as notional income of the deceased for determination of the compensation.
12. The claimants state that the deceased was aged 23 years, but Ex.P11-driving licence discloses that the deceased was aged 26 years as on the date of accident. Hence, the age of the deceased could be taken as 26 years for computation of compensation. The contention of the respondent-Corporation is that while applying multiplier, the age of the younger parent is to be taken is no more res-integra in view of the decision of the Hon’ble Apex Court in the case of JOGINDER SINGH AND ANOTHER vs ICICI LOMBORD GENERAL INSURANCE COMPANY reported in AIR 2019 SC 3814. The said decision makes it clear that while applying multiplier, the age of the deceased will have to be taken. In the instant case, if the age of the deceased is taken as 26 years, the correct multiplier would be ‘17’. The claimants state that the Tribunal failed to award any compensation on the head of ‘Future Prospects’ as the deceased was aged 26 years as on the date of accident. The Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, has made it clear that the claimants would be entitled for compensation on the head of ‘Future Prospects’ at the rate of 40% of the assessed income wherever the deceased was aged below 40 years. As such, the claimants would be entitled for adding 40% of the assessed income towards ‘Future Prospects’. Since the deceased was bachelor, the deduction towards personal expenses would be 50% of the assessed income, which has been rightly taken by the Tribunal. Claimant Nos.1 & 2 are parents of the deceased who have lost their young son aged 26 years. They have lost love and affection, care of their son throughout life. Hence, they would be entitled for Rs.40,000/- each on the head of ‘Filial consortium’. Thus, the claimants would be entitled for modified
13. It is stated that the respondent-Corporation has paid Rs.50,000/- as interim compensation, which shall be deducted from the above compensation. Thus, the claimants would be entitled for enhanced modified compensation of Rs.10,59,600/- as against Rs.6,20,000/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal. The apportionment and deposit would be as ordered by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, both the appeals are allowed in part.
The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE SMJ