IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA MFA. 9474/2013 (MVC) BETWEEN:
1. GIRIJA BAI @ KAVITHA BAI W/O DECEASED S KRISHNAMURTHY NAIK AGED ABOUT 37 YEARS 2. DHANRAJ NAIK S/O DECEASED S KRISHNAMURTHY NAIK AGED ABOUT 18 YEARS 3. PRIYANKA BAI D/O DECEASED S KRISHNAMURTHY NAIK AGED ABOUT 16 YEARS APPELLANT NO. 3 BEING MINOR REP BY HER NATURAL GUARDIAN MOTHER APPELLLANT NO.1 4. SAVITHTI BAI W/O LATE SOMLA NAIK AGED ABOUT 60 YEARS, MOTHER OF DECEASED S KRISHNAMURTHY NAIK SINCE DECEASED ON 09.12.2014 THE APPELLANT NOS. 1 TO 3 ARE LRs OF APPELLANT NO.4 WITH PERMISSION OF COURT.
ALL ARE R/O BASAVANHAL GOLLARHATTI LAMBANI THANDA, BASAVANAHAL POST DAVANAGERE-577001 ... APPELLANTS (BY SRI. HANUMANTHAPPA A. ADV.) AND 1. PRASANNA KUMAR S/O CHANDRAPPA AGED ABOUT 33 YEARS DRIVER OF BUS BEARING REG NO KA-07/7224 R/O MAVINAKATTE VILLAGE HOSADURGA TALK -577527 CHITRADURGA DISTRICT 2. H PRABHULINGAIAH S/O H M HALASIDDAIAH AGED ABOUT 43 YEARS OWNER OF BUS BEARING REG NO KA-07/7224 R/O RAMAPPA BADAVANE HOLALKERE TALUK-577526 CHITRADURGA DISTRICT 3. THE MANAGER NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, DENTAL COLLEGE ROAD MELAGIRI PALZA, MCC B BLOCK DAVANAGERE – 577 001.
... RESPONDENTS (BY SRI. ASHOK N PATIL ADVOCATE FOR R3 NOTICE TO R1 & R2 DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 17.07.2013 PASSED IN MVC NO. 637/2012 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE & MACT-V, DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMEPSNATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the claimants seeking enhancement of compensation awarded by the Tribunal.
2. With the consent of the learned counsels appearing for both the parties, the appeal is heard and disposed of finally. Perused the judgment and award passed by the Tribunal.
3. There is no dispute regarding death of one S. Krishmurthy Nayak in a road traffic accident, occurred on 21.04.2012 due to rash and negligent driving of a bus bearing registration No.KA-07/7224 by its driver and liability of the insurer of the offending vehicle, therefore only point that arises for consideration in the appeal is;
“Whether quantum of compensation awarded by the tribunal is just and reasonable or does it call for enhancement?”
4. After hearing learned counsels for both the parties and perusal of judgment and award passed by the Tribunal, this court is of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and hence it is required to be enhanced.
5. The claimants in support of their contention that deceased by doing agriculture and real estate was earning Rs. 15,000/- per month, except examining the first claimant wife of the deceased as PW.1 have not adduced any other evidence regarding avocation and income of the deceased. Therefore, in the absence of proof of income, considering the age of deceased as 41 years, year of accident as 2012 and his avocation as daily wager, his income could be assessed at Rs.7,000/- per month as against Rs.5,000/- assessed by the Tribunal. Multiplier applicable to the age group of deceased is 14. Claimants are, wife, two minor children and mother of deceased and they are 4 in numbers. Therefore, 1/4th of the income of the deceased is to be deducted towards personal expenses and remaining 3/4th is to be taken as contribution towards family.
6. There is no merit in the contention of the learned counsel appearing for the insurer of the offending vehicle that in view of death of the mother of deceased, number of claimants became 3 and therefore 1/3rd of the income of deceased has to be deducted towards personal expenses of deceased instead of 1/4th deducted by the tribunal. It is not in dispute that mother of deceased was alive as on the date of judgment and award passed by the Tribunal and therefore the Tribunal was justified in deducting 1/4th of the income of deceased towards his personal expenses and taking 3/4th of his income as contribution towards family. Death of mother of deceased subsequent to the judgment and award passed by the Tribunal cannot be a ground to deduct 1/3rd of the income of deceased towards personal expenses of deceased and to take remaining 2/3rd as contribution towards family. As to how much is to be deducted from the income of deceased towards his personal expenses while computing loss of dependency depends upon number of dependant legal heirs at the time of consideration of claim petition by the Tribunal. Admittedly, mother of deceased died subsequent to judgment and award passed by the Tribunal. Therefore, the tribunal was justified in deducting 1/4th of the income of deceased towards his personal income and taking remaining 3/4th of his income as contribution towards family. Therefore, ‘loss of dependency’ works out to Rs.8,82,000/- (7000 x 12 x 14 x 3/4) and it is awarded as against Rs.6,30,000/- awarded by the tribunal. “Since income of deceased is not established nothing can be added to the said income towards future prospects.
7. In addition to the above, a sum of Rs.40,000/- is awarded towards ‘loss of consortium’ in respect of the first claimant and Rs.15,000/- is awarded towards loss of estate in respect of other claimants and Rs.15000/- is awarded towards transportation of dead body and funeral expenses as against Rs.12,000/- awarded by the Tribunal and in all, a sum of Rs.70,000/- is awarded under conventional had as per the latest decision of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi, and therefore, Rs.75,000/- awarded by the Tribunal towards love and affection is disallowed.
8. Thus, the claimants are entitled for the following compensation:-
9. Accordingly, the appeal is allowed-in- part. The judgment and award passed by the tribunal dated 17.07.2013 passed on the file of the I Addl. Senior Civil Judge & MACT-V, Davangere in MVC No. 637/2012, is modified. The claimants are entitled to an additional compensation of Rs.2,05,000/- with interest at 6% p.a. from the date of claim petition till the date of realization.
10. The insurance company is directed to deposit the additional compensation with interest within 2 months from the date of receipt of copy of this judgment.
11. Apportionment deposit and release of additional compensation among the claimants shall be in the ratio of the award of the Tribunal.
12. The Tribunal while releasing the amount is also directed to issue fixed deposit slip to the claimants so as to enable them to withdraw the fixed deposit amount on its maturity without approaching the Tribunal once again and Bank in which amount will be kept in Fixed deposit is directed to release the fixed deposit amount on its maturity without insisting for any further order from the Tribunal. Tribunal shall transfer the amount directly into the Saving Bank Account of the claimants by effecting RTGS.
Sri. Ashok N. Patil who was directed to take notice for insurance companies-respondent No.3, and argued the case on their behalf is granted two weeks time to file vakalath.
No order as to costs.
Sd/- JUDGE Akv