IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.8331/2017 (MV) C/w MISCELLANEOUS FIRST APPEAL No.4506/2017 (MV) In MFA No.8331/2017 Between:
The Divisional Manager, Oriental Insurance Co. Ltd., First Floor, A.M. Arcade, Near Vidyarthi Bhavan, C.G. Hospital Road, Davanagere, Through its Hubballi Regional Office, Sumangala Complex, Opp: HDMC, Lamington Road, Hubballi – 58020.
Rep. by its Deputy Manager. ... Appellant (By Sri. S.V. Hegde Mulkhand, Adv.) And:
1. Smt. Gangamma, W/o. late Nagarajappa, Aged about 46 years.
2. Jyothi, D/o. late Nagarajappa, Aged about 24 years, Both are R/o Lokadolalu Village, Kasaba Hobli, Holalkere Taluk, Now R/o. Karuvinakatte Circle, Chitradurga Town.
3. Subramanya, Major, S/o. Lakshmana Naik, R/o. No.220/1, Udayanagara Upparpete, Koppa Taluk, Chikkamaglore District. ... Respondents (By Sri. K. Shashidhara, Adv. for R1 and R2 Notice to R-3 served but unrepresented) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the judgment and award dated 04.02.2017 passed in MVC No.962/2016 on the file of the Principal Senior Civil Judge, 7 CJM, Chitrdurga, awarding compensation of Rs.12,84,000/- with interest @ 9% p.a. from the date of petition till realization.
In MFA No.4506/2017 Between:
1. Smt. Gangamma, W/o. late Nagarajappa, Aged about 46 years.
2. Jyothi, D/o. late Nagarajappa, Aged about 24 years.
Both are Agriculturists, R/o Lokadolalu Village, Kasaba Hobli, Holalkere Taluk, Now R/o. Karuvinakatte Circle, Chitradurga Town – 577 501. ... Appellants (By Sri. R. Shashidhara, Adv.) And:
1. Subramanya, Major, S/o. Lakshmana Naik, R/o. No.220/1, Udayanagara Upparpete, Koppa Taluk, Chikkamaglore District.
Owner of Maruthi Omni Car Bearing No.KA14/M-8465, PIN – 577 126.
2. The Divisional Manager, Oriental Insurance Co. Ltd., First Floor, A.M. Arcade, Near Vidyarthi Bhavan, C.G. Hospital Road, Davanagere – 577 001. ... Respondents (By Sri. S.V. Hegde Mulkhand, Adv. for R-2 R1- Notice dispensed with vide order dated 18.03.2019) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the judgment and award dated 04.02.2017 passed in MVC No.962/2016 on the file of the Principal Senior Civil Judge & CJM, Chitrdurga, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These Miscellaneous First Appeals coming on for Orders this day, the Court delivered the following:
J U D G M E N T Though these appeals are listed for admission, with consent of both the learned counsel, same is taken up for final disposal.
2. MFA No.8331/2017 is filed by the Insurer seeking reduction of compensation and MFA No.4506/2017 is filed by the claimants seeking enhancement of compensation. Both appeals are directed against the judgment and award passed by the Principal Senior Civil Judge, VII CJM, Chitradurga in MVC No.962/2016 dated 04.02.2017 wherein, a total compensation of Rs.12,84,000/- has been awarded to the claimants for the death of one Mahantesh in a road traffic accident.
3. I have heard the learned counsel appearing for the claimants and the learned counsel appearing for the Insurance Company.
4. The brief facts leading to the filing of these appeals are that on 03.10.2015 at about 10.30 p.m., the deceased Mahanthesha was traveling on a motorcycle bearing registration No.KA-14-ED-1405 from Bhadravathi to Channagiri Town. When he came near Navilugudda, on S.H. 65 Road, in between Channagiri- Bhadravathi, the driver of Maruthi Omni bearing registration No.KA-14-M-8405 by driving the said vehicle in a rash and negligent manner, dashed against the deceased, as a result, he sustained grievous injuries and died on 04.10.2015 while undergoing treatment at Mc. Gann Government Hospital, Shivamogga.
5. The claimants being the mother and unmarried sister of the deceased filed a claim petition before the Tribunal claiming a total compensation of Rs.20,00,000/-. The mother of the deceased was examined as PW.1 and Exhibits P.1 to P.14 were marked. On behalf of the respondents, Exhibit R.1- the policy copy was marked.
6. The Tribunal after considering the oral and documentary evidence on record, awarded a total compensation of Rs.12,84,000/- with interest at the rate of 9% p.a. from the date of filing the petition till realization.
7. Learned counsel appearing for the claimants would contend that the deceased was aged about 25 years and he was earning a sum of Rs.20,000/- as an agriculturist and also by doing coolie work. He further submits that the income taken at Rs.7,000/- p.m. by the Tribunal is not proper. He further submitted that the total compensation awarded is on the lower side and sought to enhance the compensation by allowing the appeal filed by the claimants.
8. Per contra, learned counsel appearing for the Insurance Company vehemently contended that there is no evidence adduced to prove the income of the deceased. Even the income taken by the Tribunal at Rs.7,000/-per month is excessive. He further submits that the Tribunal has awarded excessive compensation under the conventional heads. The Tribunal has awarded compensation by adding 50% to the monthly income of the deceased towards future prospects and accordingly he seeks to reduce the compensation awarded by the Tribunal.
9. The accident in question involving the offending Maruthi Omni bearing registration No.KA-14- M-8465 and the actionable negligence on the part of the driver of the said vehicle is not disputed. According to the claimants the deceased was a bachelor aged about 25 years and he was the sole earning member of the family. According to the claimants, the income of the deceased was Rs.20,000/-. There are no convincing evidence to prove the income of the deceased. However, considering that the claimants are the mother and the unmarried sister of the deceased who were depending on the earnings of the deceased and also considering the RTC Extracts produced at Ex.P.11 and Ex.P.12, the income of the deceased is taken at Rs.9,000/- per month. In view of decision of the Hon’ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and others reported in AIR 2017 SC 5157 and in the case of Magma General Insurance Company Ltd. V/s Nanu Ram & Others reported in 2018 ACJ 2782, 40% of the income has to be added towards future prospects. After deducting 50% of the income towards personal expenses, the total income of the deceased is arrived at Rs.6,300/- per month. The proper multiplier applicable to the age of the deceased is 18. Therefore, the claimants are entitled for a compensation of Rs.13,60,800/- towards loss of dependency.
The claimants are entitled for sum of Rs.30,000/- towards loss of estate, funeral expenses and for transportation of dead body.
The compensation of Rs.50,000/- awarded towards love and affection in the facts and circumstances of the case is not disturbed.
In all the claimants are entitled for a total compensation of Rs.14,40,800/- as against Rs.12,84,000/- awarded by the Tribunal.
The enhanced amount of Rs.1,56,800/- shall carry interest at the rate of 6% p.a. from the date of petition till its deposit.
Hence, the following:
ORDER i. Both appeals are allowed in part.
ii. Judgment and award passed by the Principal Senior Civil Judge and CJM & Addl. MACT, Chitradurga dated 04.02.2017 in MVC No.962/2016 is hereby modified.
iii. The appellants/claimants are entitled to total compensation of Rs.15,40,800/- as against Rs.12,84,000/- awarded by the Tribunal.
iv. The enhanced compensation of Rs.1,56,800/- shall carry interest at the rate of 6% p.a.
The amount in deposit before this Court shall be transmitted to the jurisdictional Tribunal.
In view of disposal of main petitions, I.A.No.2/2017 does not survive for consideration. Accordingly, I.A.No.2/2017 is disposed of.
Sd/- JUDGE PN/-