IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY MISCELLANEOUS FIRST APPEAL No.5121 OF 2016 (MV) BETWEEN:
1. SMT GOUHER JAN W/O LATE SHEIK AHMED NOW AGED ABOUT 51 YEARS 2. MOHSINA BANU D/O LATE SHEIK AHMED NOW AGED ABOUT 23 YEARS 3. ISHDYAZ AHMED S/O LATE SHEIK AHMED, NOW AGED ABOUT 20 YEARS 4. IRSHAD W/O RIZWAN NOW AGED ABOUT 28 YEARS 5. FAHIMA BANU W/O JUNED PASHA Now AGED ABOUT 26 YEARS 6. MAJAN BEE W/O LATE MAHAMED KASEEM NOW AGED ABOUT 83 YEARS ALL ARE RESIDING AT NO 14, PADARAYANAPURA BANGALORE AND ALSO R/AT HULIYURDURGA, TUMKUR DISTRICT AND ALSO RESIDING AT NO 25, GOVINDAPURA NELAMANGALA TALUK BANGALORE RURAL DISTRICT ... APPELLANTS (BY SRI.RANGEGOWDA N R, ADV. ) AND:
1. AJAY KUMAR K V S/O VIJAYARANGA SWAMY K G AGED MAJOR, NO 24, RAILWAY STATION ROAD, TUMKUR - 572 101 2. THE MANAGER BAJAJ ALLIANZ GENERAL INS. CO. LTD., GROUND FLOOR, NO 31, TBR TOWER 1ST CROSS, NEW MISSION ROAD, NEAR BANGALORE STOCK EXCHANGE BANGALORE – 560027 ... RESPONDENTS (BY SRI.RAVI S SAMPRATHI, ADV. FOR R2; NOTICE TO R1 IS DISPENSED WITH V/O DATED 05/01/2017) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.03.2016 PASSED IN MVC NO.6891/2013 ON THE FILE OF THE 10TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T Claimants are appellants seeking enhancement of compensation. The claimants are the petitioners in MVC No.6891 of 2013 on the file of Motor Accident Claims Tribunal, Bangalore. The deceased suffered motor vehicle accident injuries in the road traffic accident that took place on 28th October 2013. It is stated in the claim petition that while the deceased was riding motorcycle bearing No.MH 01/Z 2922 on the left side of NH-4 Tumkur, Bangalore Highway, near Kuluvanahalli ‘U’ Turn, the driver of the car bearing No.KA 06/N 5439 came in a rash and negligent way and caused accident. The Tribunal awarded the compensation of Rs.9,72,016/-. Being not satisfied with the compensation awarded, the claimants are in this appeal before this Court.
2. The learned counsel for the claimant-appellants submits that the deceased was driver by profession and he was earning Rs.12,000/- per month. The Tribunal has taken his income only at Rs.8,000/- per month. Hence, he submits that the income has to be assessed at Rs.12,000/- per month as has been claimed by the claimants. Further, he submits that immediately after the accident, he was taken Government Hospital at Nelamangala and then he was shifted to Victoria Hospital at Bengaluru where he succumbed to the injuries. He also submits that the compensation awarded under other heads is also lower in side. Hence, he seeks enhancement in the compensation.
3. The learned counsel for the respondent-Insurance Company submits that what has been awarded is just and proper. The claimants have not proved the income except producing the driving licence as Exhibit P10. Production of driving licence is not a proof of income and the claimants should have produced the avocation and occupation. Under these circumstances, he prays for dismissal of the appeal.
4. Heard the learned counsel for the parties and gone through the papers that are made available by the claimant before this Court. The claimants are wife, children and mother of the deceased. Police records reveal that the deceased was proceeding with two pillion riders on the motorcycle. Because of it, he might have lost control and thereby accident might have been occurred. Since, traveling with two pillion riders has not been denied and also police records reveal that the deceased rode the motorcycle with two pillion riders, it is presumed that must have contributed to the accident to a certain extent. Under these circumstances, in order to arrive at a conclusion to award just compensation, the income of the deceased is to be assessed at Rs.8,000/- per month plus Rs.100/- batta per day, which comes to Rs.11,000/- and for the present, I find it safe to assess the income of the deceased at Rs.10,000/- per month. After giving deduction at the rate of 25% for the personal expenses of the deceased, the amount comes to Rs.7,500/-, the same is taken. Hence, the calculation would be Rs.7,500 x 12 x 11 which comes to Rs.9,90,000/-. It is made clear that since the deceased was riding with two pillion riders on the motorcycle, which is not permissible under the Motor Vehicles Act, ten per cent negligence is to be attributed on the rider of the motorcycle and accordingly out of the enhanced amount Rs.99,000/- is to be deducted. Accordingly, the enhancement under the said head loss of dependency would be Rs.8,91,000/- in lieu of Rs.7,97,016/- awarded by the Tribunal.
5. The Tribunal has awarded Rs.25,000/- towards funeral expenses. For transportation of dead body and other conventional heads all put together another Rs.40,000/- is awarded. The amount awarded by the Tribunal under the heads loss of love and affection and loss of consortium is retained. In total the compensation would be Rs.11,06,000/- in place of Rs.9,72,016/- awarded by the Tribunal.
In the result, appeal is partly allowed.
Sd/- JUDGE lnn