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.5623/2013 (MV) C/W MFA.CROB.No.167/2017 M.F.A.No.5623/2013 BETWEEN:
DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., ADICHUNCHANAGIRI ROAD NEAR R M P QUARTERS, MYSORE NOW REPRESENTED BY ITS REGIONAL MANAGER NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE SUBHARAM COMPLEX 144, M G ROAD BANGALORE -560 001.
(BY SRI.A N KRISHNA SWAMY, ADV.) AND:
1. SMT.CHIKKANNAMMA W/O CHIKKAMADASHETTY NOW AGED ABOUT 40 YEARS 2. CHIKKAMADASHETTY S/O LATE GOPASHEETY NOW AGED ABOUT 50 YEARS ...APPELLANT 3. THAMMAIAHSHETTY S/O CHIKKAMADASHETTY NOW AGED ABOUT 22 YEARS 4. BORAMMA D/O CHIKKAMADASHETTY NOW AGED ABOUT 21 YEARS ALL R/O RANGANATHAPURA GUNDLUPET TALUK CHAMARAJANAGAR DISTRICT-571313.
5. REMYA W/O LEELA MAJOR 2/565(4/189) ARUN NIVAS PUNNAKADU BALAPURAM PANCHAYATH NEYYATTINKARA, TRIVENDRAM KERALA-695 126.
…RESPONDENTS (BY SRI.K M SANATH KUMAR, ADV. FOR R1 & R2 R3 TO R5 - SERVED) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.02.2013 PASSED IN MVC NO.93/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, AND CJM, CHAMARAJANAGAR, AWARDING A COMPENSATION OF RS.9,19,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
MFA.CROB.No.167/2017 BETWEEN:
1. CHIKKANNAMMA W/O CHIKKAMADASHETTY AGE 44 YEARS 2. CHIKKAMADASHETTY S/O LATE GOPASHEETY AGE 54 YEARS 3. THAMMAIAHSHETTY S/O CHIKKAMADASHETTY AGE 26 YEARS 4. BORAMMA D/O CHIKKAMADASHETTY AGE 25 YEARS ALL ARE R/AT RANGANATHAPURA GUNDLUPET TALUK CHAMARAJANAGAR DISTRICT PIN: 571111.
…CROSS OBJECTORS (BY SRI.K M SANATH KUMAR, ADV. FOR CROSS OBJECTORS) AND:
1. REMYA W/O LEELA R/AT 2/565 (4/189) ARUN NIVAS ”PUNNAKADU”
BALAPURAM PANCHAYATH NEYYATTINKARA TRIVENDRAM KERALA-695 126.
2. DIVISIONAL MANAGER THE NATIONAL INSURANCE CO. LTD., ADICHUNCHANAGIRI ROAD NEAR R M P QUARTERS MYSORE PIN: 570026.
(BY SRI.A.N. KRISHNA SWAMY, ADV. FOR R2 R1- NOTICE DISPENSED) …RESPONDENTS THIS MFA.CROB. IN MFA.NO.5623/2013, FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 15.02.2013, PASSED IN MVC NO.93/2012, ON THE FILE OF THE SENIOR CIVIL JUDGE AND CHIEF JUDCIAL MAGISTRATE, CHAMARAJANAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A AND MFA.CROB COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T MFA No.5623/2013 is by the Insurer on the ground that Tribunal awarded excess compensation and MFA CROB No.167/2017 is by the claimants seeking enhancement of compensation awarded under the judgment and award dated 15.02.2013 passed in MVC No.93/2012 on the file of the Senior Civil Judge and Chief Judicial Magistrate, Chamarajanagar.
2. The claimants are parents, brother and sister of the deceased Gopal @ Gopashetty. Claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of Gopashetty in a Road Traffic Accident. It is stated that on 31.08.2012 when the claimant was proceeding as pillion rider with his brother on Motor Cycle, at that time, a Car bearing Reg.No.KL-20-C-2323 came in high speed, rash, negligent manner and dashed to the Motor Cycle. Due to the impact, the deceased fell down and sustained grievous injuries. He was immediately shifted to K.R. Hospital, Mysore, where he succumbed to the injuries. It is stated that the deceased was earning Rs.9,000/- per month by doing mason work. He was aged about 19 years as on the date of accident.
3. On issuance of summons, respondents appeared before the Tribunal and filed their objections. The 1st respondent – owner of the offending vehicle in his statement stated that the Car is insured with the 2nd respondent - insurer and also stated that the driver of the car had valid and effective driving licence as on the date of accident. The 2nd respondent – Insurer filed statement denying claim petition averments and contended that there is violation of terms and conditions of the policy. The 2nd claimant – father of the deceased examined himself as PW.1 and also examined PW.2, apart from marking the documents Exs.P1 to P6. No evidence was let in on behalf of the respondents. The Tribunal on appreciating the material on record awarded total compensation of Rs.9,19,000/- with interest at 6% p.a. from the date of petition till the date
The insurer being aggrieved on the ground that Tribunal awarded excess compensation is in appeal before this Court, whereas the claimants are in cross objection praying for enhancement of compensation.
4. Heard the learned counsel for the parties and perused the entire material on record.
5. The learned counsel for the insurer would submit that the compensation awarded by the tribunal is on the higher side and prays for reduction of the same. He submits that the deceased was a bachelor and deduction of 50% ought to have been made towards personal expenses of the deceased, but the Tribunal has deducted 1/3rd towards personal expenses. Further it is his submission that the Tribunal ought to have taken the age of the mother for applying the correct multiplier and not the age of the deceased. It is his further submission that the income assessed by the Tribunal is just and proper which needs no interference. Thus prays for allowing the appeal of the insurer.
6. Per contra, the learned counsel for the claimants submits that the income of the deceased assessed by the Tribunal at Rs.6,000/- is on the lower side. He submits that the deceased was earning Rs.9,000/- per month by doing mason work. The Tribunal has not taken into consideration the evidence of PW.1 with regard to the income of the deceased. Further he submits that the claimants are entitled to add 40% of the assessed income towards future prospects in terms of the decision of the Apex Court in the decision of NATIONAL INSURANCE COMPANY LTD. VS. PRANAY SETHI reported in 2017 (16) SCC 680, thus prays for enhancement of compensation.
7. Having heard the learned counsels for the parties and on perusal of the material on record, the points that arise for consideration in the appeal as well as cross objection are as follows :-
a. Whether the income of the deceased assessed at Rs.6,000/- per month is just and proper ?
b. Whether the Tribunal is justified in taking the age of the deceased while applying the correct multiplier ?
c. Whether the Tribunal is justified in taking 1/3rd deduction towards personal expenses ?
d. Whether the claimants would be entitled for adding 40% of the assessed income towards future prospects ?
Answer to points (a and c) would be in the negative and to points (b and d) would be in the affirmative for the following reasons :
The occurrence of the accident on 31.08.2012 involving Car bearing Reg.No.KL-20-C-2323 and the accidental death of one Gopashetty are not in dispute in these appeals. The insurer is in appeal on the ground that the Tribunal has granted excess compensation and the claimants are in Cross Objection seeking enhancement of compensation. The deceased was aged 19 years as on the date of accident. The claimants state that the deceased was earning Rs.9,000/- per month by doing mason work. But the claimants have not placed any material to establish the income of the deceased. In the absence of any material, the Tribunal notionally assessed the income at Rs.6,000/- per month but the same is on the lower side. This Court and Lok Adalath while settling the accident claims of the year 2012 would normally take notional income of Rs.7,000/- per month. In the instant case, the accident is of the year 2012, in the absence of any material to establish the income of the deceased, it would be appropriate to take the notional income at Rs.7,000/- per month. Further the Tribunal adopted the multiplier of ‘18’ taking the age of the deceased at 19 years as on the date of accident. It is settled law that for applying the correct multiplier, the age of the deceased will have to be taken. Rightly the Tribunal has taken the age of the deceased for applying the correct multiplier, which needs no interference. Admittedly the deceased was a bachelor. The Tribunal committed an error in taking the deduction of 1/3rd towards personal expenses of the deceased. The Hon’ble Supreme Court in the case of SARLA VERMA AND OTHERS v/s DELHI TRANSPORT CORPORATION AND ANOTHER reported in AIR 2009 SC 3104 has held, wherever the deceased was a bachelor the deduction towards personal expenses to be taken at 50%. As stated above the deceased was aged 19 years, the Hon’ble Apex Court in the decision of PRANAY SETHI cited supra has held that wherever the deceased was aged below 40 years, the claimants would be entitled for adding 40% of the assessed income towards future prospects. In the instant case, the claimants would be entitled for adding 40% of the assessed income towards future prospects. In terms of the decision in MAGMA GENERAL INSURANCE COMPANY LIMITED v/s NANU RAM AND OTHERS reported in 2018 ACJ 2782, the claimants 1 and 2, who are parents of the deceased, are entitled to Rs.40,000/- each towards filial consortium. Thus the claimants would be entitled for the following enhanced compensation:-
a. Loss of dependency including future prospects (Rs.7,000 + 40 % = Rs.9,800/-
Rs.9,800/- less 50% = Rs.4,900/-
8. Accordingly, the appeal of the insurer is allowed in part to the extent of deducting 50% instead of 1/3rd deduction made by the Tribunal towards personal expenses of the deceased. The cross objection of the claimants is allowed in part. The impugned judgment and award is modified to the above extent and the claimants are entitled to modified compensation in a sum of Rs.11,68,400/- as against Rs.9,19,000/- awarded by the Tribunal, with interest at 6% p.a. from the date of petition till the date of realization. The apportionment and deposit would be as ordered by the Tribunal and remain intact.
The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE NG* CT:bms