IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE H.P. SANDESH MFA NO.10851/2012(MV) BETWEEN:
THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO LTD., BRANCH OFFICE KRISHNAPRASAD BUILDING MAIN ROAD, PUTTUR, D.K.-574201 NOW REP BY ITS REGIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, TP HUB SUMANGALA COMPLEX LAMINGTON ROAD, HUBLI-580 020.
...APPELLANT (BY SRI.B.C. VRUSHABHENDRAIAH, ADV.,) AND 1. SMT. MALATHI S. ACHARYA W/O LATE. SATHYANANDA ACHARYA NOW AGED ABOUT 35 YEARS 2. MEGHANA NOW AGED ABOUT 13 YEARS D/O LATE. SATHYANANDA ACHARYA 3. KEERTHANA NOW AGED ABOUT 6 YEARS D/O LATE. SATHYANANDA ACHAYRA R2 AND R3 ARE MINIORS REPRESENTED BY R1 HEREIN R1 TO R3 ARE RESIDING AT ANJARU MATA, ANJARU VILLAGE UDUPI TALUK AND DISTRICT-576101.
4. KIRAN KUMAR J.T.
S/O LATE TANGAPPA POOJARY AGED NOT KNOWN R/O MANDI HOUSE, GONIBEDUM CHIKKAMAGALORE DISTRICT-577 101. DRIVER OF TIPPER LORRY BEARING REG.NO.KA-21-2691.
5. D.R.RAJU S/O RAMAYYA POOJARY AGED ABOUT 53 YEARS C/O KARTHIK NEAR S.B. COLLEGE KARNATAKA KARKAL TALUK, UDUPI DISTRICT-576101. OWNER OF TIPPER LORRY BEARING REG KA-21-2691.
….RESPONDENTS (BY SRI.S.K.ACHARYA, ADV. FOR R1 TO R3, R4 AND R5 ARE SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:23.08.2012 PASSED IN MVC.NO.152/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT, KARKALA, AWARDING A COMPENSATION OF RS.9,40,235/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS MFA, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the Insurance Company challenging the judgment and award dated 23.8.2012 passed by the Senior Civil Judge and AMACT, Karkala in MVC 152/2012.
2. Brief facts of the case:
On 19.2.2011 when deceased Sathyananda Acharya was riding a motorcycle bearing Reg.No.KA-20- V-4752 near Kantharagoli Locality of Yerlapdy Village on Yerlapady-Bailoor public road, at that time, the driver of the Tipper Lorry bearing Reg.No.KA-21-2691 came in a rash and negligent manner and dashed against the deceased. As a result, the deceased sustained grievous injuries and succumbed to injuries on 18.3.2011. Hence, the wife and minor children of the deceased filed claim petition before the Tribunal claiming compensation of Rs.25,00,000/-. The Tribunal after considering the oral and documentary evidence on record, has granted compensation of Rs.9,40,235/- with interest at 6% p.a. and fastened the liability on the Insurance Company. Being aggrieved by the quantum of compensation awarded by the Tribunal, the insurance company has filed this appeal.
3. The learned counsel appearing for the appellant-Insurance company submits that the Tribunal has committed an error in deducting 1/4th of the income of the deceased towards ‘personal expenses’ instead of 1/3rd in view of the decision of the Apex Court in the case of Sarla Varma. Further, he submits that since the deceased was not working in an organized sector, the Tribunal has committed an error in adding 30% of the actual income of the deceased towards ‘future prospects’ instead of 25%. Hence, he prays for allowing the appeal.
4. Per contra, the learned counsel appearing for the claimants submits that while calculating the income of the deceased, the Tribunal has taken a meager income of Rs.4,500/- per month. The accident is of the year 2011 and hence, the income of the deceased has to be enhanced. Further, regarding future prospects, in view of the judgment of the Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, the law is settled and the same has to be modified.
5. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondents, the point that arises for the consideration of this Court is:
Whether the Court below has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?
6. Admittedly, the accident is of the year 2011, the deceased was an agriculturist and the age of the deceased was 45 years at the time of the accident. Considering these facts, even in the absence of the documentary evidence, the Tribunal ought to have taken the notional income of the deceased as Rs.6,500/- per month instead of Rs.4,500/-.
The claimants are wife and two minor children of the deceased. The Tribunal has committed an error in deducting the income of the deceased towards personal expenses as 1/4th instead of 1/3rd.
Regarding ‘future prospects’, in view of the judgment of the Hon’ble Supreme Court in the case of Pranay Sethi (supra), it is settled law that if the deceased was working in an unorganized sector and if he was between the age group of 40 to 50 years, 25% has to be added to the actual income of the deceased.
The ‘loss of dependency’ needs to be recalculated.
The same is calculated as under:
Monthly income – Rs.6,500/- Add: 25% towards Future prospects - Rs.1,625/-
Less: 1/3rd towards - Rs.8,125/-
Personal expenses - Rs.2,708/-
- Rs.5,417/-
Loss of dependency = Rs.9,10,056/-
(Rs.5,417x12x14) 7. The Tribunal has awarded compensation of Rs.60,000/- under the conventional heads. As per the decision of the Supreme Court in the case of Pranay Sethi (supra), the claimants are entitled for a compensation of Rs.70,000/- under the conventional heads.
8. The compensation awarded by the Tribunal under the head ‘medical expenses’ remains unaltered.
9. Thus, the claimants are entitled for the following compensation:
10. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed.
(ii) The judgment and award of the Tribunal is modified granting the compensation of Rs.11,23,107/- as against Rs.9,40,235/- with interest at 6% per annum from the date of petition till realization.
(iii) The Insurance Company is directed to deposit the amount of compensation within eight weeks.
(iv) The amount in deposit is ordered to be transmitted to the Tribunal for disbursement forthwith.
(v) The apportionment of the compensation shall be made in terms of the award of the Tribunal.
(vi) Registry to send the lower court records forthwith.
Sd/- JUDGE DM