IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.2281/2013 [MV] BETWEEN :
1. SMT.GOWRAMMA W/O LATE CHIRASTEHALLI DILLEPPA AGED ABOUT 41 YEARS OCC:HOUSE HOLD WORK 2. SRI HANUMANTHAPPA S/O.LATE CHIRASTEHALLI DILLEPPA AGED ABOUT 24 YEARS OCC:HOSUE HOLD WORK 3. MANJAMMA D/O LATE CHIRASTEHALLI DILLEPPA AGED ABOUT 22 YEARS OCC:HOSUE WIFE 4. KARIYAPPA S/O LATE CHIRASTEHALLI DILLEPPA AGED ABOUT 20 YEARS OCC:AGRICULTURIST ALL ARE R/AT DUGGAVATTI VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT ...APPELLANTS (BY SRI S.VISHWAJITH SHETTY, ADV.) AND :
1. VELU MURUGAN P., S/O PERIYASWAMY AGED ABOUT 30 YEARS OCC:DRIVER OF THE LORRY R/AT NAYANAR PALYAM KALLAKURCHI TQ VILLUPURAM DISRICT TAMILNADU STATE-600124 2. A MATHIVANAN S/O ARMUGAM OWNER OF THE LORRY R/AT NO.20, 1ST MAIN ROAD K P N EXTENSION BANGALORE-560002 3. RAYAL SUNDRAM ALLIANCE INSURANCE COMPANY LTD., 1ST FLOOR, CENTER POINT NEW COTTON MARKET HUBLI BRANCH, HUBLI DIST DHARWAD-580020 …RESPONDENTS (BY SRI O.MAHESH, ADV. FOR R-3;
R-1 & R-2 NOTICE D/W V/O DATED 08.02.2018.) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 13.10.2011 PASSED IN MVC NO.44/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT-9, HARAPANAHALLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellants/claimants are before this Court in this appeal, being not satisfied with the quantum of compensation awarded under the judgment and award dated 13.10.2011 passed in MVC No.44/2010 on the file of the Senior Civil Judge, MACT-9, Harapanahalli (hereinafter referred to as 'the Tribunal' for short).
2. The claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the death of one Dilleppa who died in a road traffic accident which occurred on 14.03.2010. It is stated that on 14.03.2010, while the deceased was proceeding along with his sheeps numbering 70 to 80, driver of the lorry bearing registration No.KA-01/C-1011 caused the accident, in which, Dilleppa and 57 sheeps died on the spot.
3. Respondent No.3/Insurance Company appeared before the Tribunal and filed its objections denying the petition averments. It is also contended that as on the date of accident, driver of the offending lorry had no valid and effective driving license and he was driving the said vehicle under the influence of alcohol. It is also contended that there was no permit to the said vehicle and violated the terms and conditions of the Policy.
4. On behalf of the claimants, claimant No.4 got examined himself as P.W.1 and also examined two other witnesses as P.W.2 and P.W.3 and got marked the documents as Ex.P1 to Ex.P66. However, the respondent neither examined any witnesses nor marked any document in support of their case.
5. The Tribunal, on analyzing the material on record awarded total compensation of Rs.5,52,000/- taking into account Rs.5,000/- as monthly income of the deceased. The claimants, being not satisfied with the quantum of compensation are before this Court seeking enhancement of compensation.
6. Heard the learned counsel for the appellants and learned counsel for the third respondent/Insurance Company. Perused the lower court records.
7. Learned counsel for the appellants would submit that the monthly income of the deceased taken by the Tribunal at Rs.5,000/- for determining compensation under the head loss of dependency is on the lower side, whereas the income ought to have been taken minimum of Rs.5,500/- p.m. Learned counsel further submits that the age of the deceased is taken as 52 years, whereas he was aged 42 years as on the date of accident. Ex.P9, Post Mortem report would indicate the exact age of the deceased as 42 years. Further, the claimants would be entitled for 30% of the income towards future prospects. Hence sought for enhancement of compensation.
8. Per contra, learned counsel for the third respondent/Insurance Company submits that deduction of 1/4th of the income of the deceased is not proper. He submits that income of the deceased assessed at Rs.5,000/- p.m. is just and proper and the claimants are not entitled for any enhanced compensation.
9. The accident is of the year 2010. The claimants have not produced any material or document to indicate the exact income of the deceased. In the absence of any material to indicate the exact income of the deceased, the court will have to assess the income notionally. The income taken by the Tribunal at Rs.5,000/- p.m. is on the lower side. This Court and Lok Adalaths, while settling the accident claims of the year 2010 would normally take notional income of Rs.5,500/- p.m. Accordingly, in the instant case also, it is appropriate to assess the notional income of the deceased at Rs.5,500/- p.m. for determination of compensation under the head loss of dependency. Further, the claimants state that the deceased was aged about 42 years whereas the Tribunal has considered the age of the deceased as 52 years without there being any basis. Learned counsel for the appellants would submit that the wife of the deceased was aged about 38 years as on the date of accident and the deceased was aged about 42 years. The Post Mortem report at Ex.P9 would indicate the correct age of the deceased as 42 years. Therefore the age of the deceased is taken as 42 years and multiplier to be adopted is 14 for the purpose of determination of compensation.
10. Since the deceased was not having permanent income, as per the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, the claimants would be entitled for 25% of the income assured towards future prospects since deceased was aged 42 years. Thus, the claimants would be entitled for modified compensation under the head loss of dependency:
5500 + 25% = 6875 - 1/3 (2291) = 4584 4584 x 12 x 14 = 7,70,112/-
The claimants are also entitled for a sum of Rs.70,000/- on conventional heads as against Rs.25,000/- awarded by the Tribunal. Thus, the claimants are entitled to modified compensation of Rs.8,40,112/- with interest at the rate of 9% p.a. as awarded by the Tribunal.
11. Accordingly, the appeal is allowed in part. The judgment and award dated 13.10.2011 in MVC No.44/2010 on the file of the Senior Civil Judge, MACT-9, Harapanahalli is modified and the claimants are entitled to modified enhanced compensation of Rs.8,40,112/- as against Rs.5,52,000/- with interest at the rate of 9% p.a.
The memo filed for return of LCR is taken on record and the Registry is hereby directed to send back the LCR to the concerned Tribunal, forthwith.
Sd/- JUDGE mpk/-* CT:bms