IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.8352 OF 2014 (MV) BETWEEN 1. Smt. Girija W/o Late H.K.Muniraju, Aged about 26 years, 2. Kumari Trupthi D/o Late H.K.Muniraju, Aged about 3 years, 3. Kurappa S/o Late Muniyallappa, Aged about 66 years, 4. Yallamma W/o Kurappa, Aged about 61 years, All are R/at No.691, 29th Main Road, BTM Layout, Bengaluru.
Since the 2nd appellant is Minor, Rept. by her mother 1st Appellant as Natural Guardian. ….Appellants (By Sri. Sreenivasaiah.A, Advocate) AND 1. Prasanna Kumar S/o T. Chinnappa, No.9, T.C.Halli Village, Dommasandra Post, Sarjjapura Hobli, Anekal Taluk, Bengaluru District-562 106.
2. The Manager United India Insurance Co. Ltd., RO No.18, 5th Floor, Krushi Bhavan, Hudson Circle, Bengaluru-560 001. Respondents (By Sri K.S.Lakshminarasappa, Advocate for Sri B.C.Seetharama Rao, Advocate for R-2 R1 – Notice dispensed with v/o dated 26-2-2018) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 08.07.2014 passed in MVC.No.3982/2013 on the file of the XVIII Additional Judge, Member, MACT-4, Court of Small Causes, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Admission this day, the court delivered the following:
JUDGMENT The appellants are in appeal under Section 173(1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation awarded under the judgment and award dated 08/7/2014 in M.V.C.No.3982/2013 on the file of the XVIII Additional Judge, Court of Small Causes, Member, MACT-4, Bangalore.
2. The claimants are wife, minor child and parents of the deceased-H.K.Muniraju. They filed claim petition under Section 166 of Motor Vehicles Act, seeking compensation for the death of H.K.Muniraju in a road traffic accident. It is stated that on 16-3-2013, at about 7:30 A.M., when the deceased was standing near his house at Handenahalli, the driver of the qwalis car bearing Reg.No.KA-03-MN-9333 came with high speed and in a rash and negligent manner and lost control over his vehicle and dashed against deceased, who sustained grievous injuries. Due to grievous injuries, he succumbed to death. As on the date of accident, the deceased was aged about 32 years and it is claimed that the deceased was earning Rs.18,000/- per month as a farmer, milk vendor and carpenter.
3. On service of notice, respondent Nos.1 and 2 appeared and filed their written statement, wherein they denied that the accident was occurred due to the negligence of driver of the offending vehicle and also denied the entire petition averments. Further, respondent No.2-Insurance Company contended that the driver of the offending vehicle was not holding a valid and effective driving licence as on the date of accident. But issuance of policy in respect of offending vehicle and validity of same as on the date of accident was admitted by respondent No.2.
4. The claimant No.1 examined herself as PW-1 and got marked documents Ex.P.1 to Ex.P.17. Respondent No.1- Owner of the vehicle, examined himself as RW-1 and got marked document Ex.R1. Respondent No.2-Insurance Company has not lead any evidence.
5. The Tribunal, on assessment of the entire material on record both oral and documentary evidence, has awarded total compensation of Rs.18,44,359/- with interest at 6% per annum on the following heads:
Amount in (Rs.) 1. Loss of dependency 12,96,000 2. Transportation of the deadbody and funeral expenses 3. Loss of consortium to the 1st petitioner 10,000 20,000 4. Loss of estate 10,000 5. Cost of medical treatment of the deceased before his death 5,08,359 Total 18,44,359 The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court in this appeal.
6. Heard the learned counsel for the appellants and learned counsel for respondent No.2-Insurance Company. Perused the records.
7. Learned counsel for the appellants submits that the compensation awarded by the Tribunal is on the lower side. The deceased was aged 32 years as on the date of accident and he was working as carpenter, farmer and milk vendor and earning more than Rs.18,000/- per month. Whereas the Tribunal has taken notional income of the deceased at Rs.6,000/- per month for determination of the compensation, which is on the lower side. He further submits that the claimant No.1-wife of the deceased is entitled for Rs.70,000/- under ‘conventional heads’. Further, claimant No.2-minor child of the deceased is entitled for Rs.40,000/- under the head of ‘Parental Consortium’. Thus, he prays for enhancement of compensation.
8. Learned counsel further submits that the appellants have filed I.A.No.1/2018 under Order 41 Rule 27 read with Section 151 of CPC to produce additional documents. The proposed additional documents are prescriptions and Final bill issued by the Narayana Multispeciality Hosptial. In the affidavit accompanying the application, it is stated that during the evidence before the Tribunal, the claimant-wife of deceased could not produce the medical bills and prescriptions, as the same were misplaced. Hence, it is produced before this Court. Learned counsel for the appellants further submits that the claimants are entitled for the amount mentioned in those bills, which are produced along with the application.
9. Per contra, learned counsel for respondent No.2- Insurance Company submits that the compensation awarded by the Tribunal is just and proper and needs no interference by this Court with the judgment and award. He further submits that the application-I.A.No.1/2018 filed for production of additional documents is liable to be rejected for the reason that Tribunal has already awarded compensation of Rs.5,08,359 towards ‘Cost of medical treatment of the deceased before his death’. It is his further submission that the bills, which are produced along with the application are not produced before the Tribunal and the appellants have not made clear in the application as to why they could not produce the same before the Tribunal and whether the amount claimed before the Tribunal is the amount which is covered under the bills produced along with the application. Hence, prays for rejecting the application I.A.No.1/2018.
10. I.A.No.1/2018 is filed under Order 41 Rule 21 of CPC, seeking permission to produce the additional documents i.e., medical bills and prescriptions amounting to Rs.71,917/- and those documents/bills are of the month May and June, 2013. No convincing reasons are forthcoming from the application as to why the claimants could not produce those bills before the Tribunal. It is also not made clear in the affidavit as what claims are made before the Tribunal and whether the amount mentioned in the bills produced along with the application are also part of the compensation awarded on the head of ‘Cost of medical treatment of the deceased before his death’. Hence, I.A.No.1/2018 is rejected.
11. The accident which occurred on 16-3-2013 involving qwalis car bearing Reg.No.KA-03-MN-9333 and accidental death of H.K.Muniraju is not in dispute in this appeal. The claimants are seeking enhancement of compensation.
12. The claimants state that the deceased was aged about 32 years as on the date of accident, he was earning more than Rs.18,000/- per month as a carpenter, farmer and milk vendor. But no material is produced to indicate the exact income of the deceased. In the absence of material to indicate exact income of the deceased, the income of the deceased is to be determined notionally. The Tribunal has determined notional income of the deceased at Rs.6,000/- per month, which is on the lower side. As stated, the accident is of the year 2013, this Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would take notional income for the accidents of the year 2013 at Rs.8,000/-. In the case on hand, there is no document to indicate the exact income of the deceased, hence I deem it appropriate to take Rs.8,000/- per month as notional income of the deceased for determination of the compensation on the head of ‘loss of dependency’.
13. Further, the claimants would be entitled for 40% of the established income on the head of ‘Future Prospects’. The Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, has held that if the deceased is in a profession from which he was not having any fixed income would be entitled for 40% of the established income on the head of ‘Future Prospects’. In the present case also the claimants would be entitled for 40% of the established income on the head of ‘Future Prospects’. Thus, the claimants would be entitled for modified compensation as follows: Rs.8000+40%=11,200-1/4= 8,400x12x16=16,12,800.
14. Further the Tribunal has awarded Rs.40,000/- under ‘conventional heads’, whereas the claimants would be entitled for Rs.70,000/-. The Tribunal has not awarded any compensation to claimant No.2-minor child of deceased, aged about 2 years as on the date of accident. As per MAGMA GENERAL INSURANCE CO. LTD. vs.
NANU RAM reported in 2018 SCC ONLINE SC 1546, the second claimant-minor child of deceased would be entitled for Rs.40,000/- under the head of ‘Parental Consortium’, it is awarded accordingly.
15. Thus the claimants would be entitled for a total compensation of Rs.22,31,159/- on the following heads:
Amount in (Rs.) 1. Loss of dependency 16,12,800 2. Conventional Heads 70,000 3. Parental consortium 40,000 5. Cost of medical treatment of the deceased before his death 5,08,359 Total 22,31,159 Thus, the claimants would be entitled for a total compensation of Rs.22,31,159/- as against Rs.18,44,359/- with interest as awarded by the Tribunal. The deposit and apportionment would be as ordered by the Tribunal.
Accordingly, appeal is allowed in part.
SMJ Sd/- JUDGE