1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR MISCELLANEOUS FIRST APPEAL NO.7036 OF 2012 (MV) BETWEEN :
1. SMT GOWRAMMA W/O LATE KUMAR AGED ABOUT 43 YEARS 2. PARASHURAM S/O LATE KUMAR AGED ABOUT 20 YEARS BOTH ARE RESIDING AT A.D.COLONY, NAGASAMUDRA ROAD CHANNARAYAPATNA TOWN HASSAN DISTRICT … APPELLANTS (BY SHRI. S. RAJU, ADVOCATE) AND :
1. N.S. RAVI S/O SHANKARA AGED ABOUT 25 YEARS R/O NO.756, NARASIMHA TEMPLE STREET, KIKKERI VILLAGE KIKKERI HOBLI, K.R.PET TALUK MANDYA DISTRICT DEAD BY LRS A). SHANKAR R/O NO.756, NARASIMHA TEMPLE STREET, KIKKERI VILLAGE KIKKERI HOBLI, K.R.PET TALUK MANDYA DISTRICT-571 426 2. THE ORIENTAL INS CO. LTD., DIVISIONAL OFFICE, I FLOOR 2 S.S.COMPLEX, SUBASH SQUARE HASSAN-573 201 … RESPONDENTS (BY SHRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R2; NOTICE TO R1(A) IS DISPENSED WITH VIDE ORDER DATED 17.6.15) . . . .
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:31.12.2011 PASSED IN MVC NO.306/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, CHANNARAYAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Claimants before the Tribunal have presented this appeal challenging judgment and award dated December 31, 2011 in MVC No.306/2011 on the file of Presiding Officer, Fast Track Court, Channarayapatna.
2. Thammaiah @ Annaiah, son of first claimant sustained injuries in a road traffic accident on 12.07.2009 when the Motor Cycle on which the deceased was travelling as a pillion rider dashed against a Compound wall of a building in Channarayapatna Town, Hassan District. The victim succumbed to the injuries in the Hospital. His mother and brother presented the instant 3 claim petition seeking compensation contending inter alia that deceased was working as a Motor Mechanic. Only oral evidence was adduced before the Tribunal to substantiate this contention. First claimant namely, P.W.1 has admitted in cross-examination that her son had studied up to 9th Standard. She has also stated that he was working in a motor garage from the age of 10. In view of these contradictory statements, the Tribunal has held that the evidence on record does not probabalize that the deceased was working as a motor mechanic. In the absence of any material, construing the earning capacity of an able-bodied person at Rs.150/- per day, Tribunal has awarded a sum of Rs.3,91,000/- as compensation. Feeling aggrieved, claimants have presented this appeal for enhancement.
3. Shri.S.Raju, learned Advocate for the claimants submits that victim was working as a mechanic. Therefore, the Tribunal ought to have considered his earning capacity as Rs.7,000/- per month. He further submits that the compensation awarded towards other 4 conventional heads is also less. The Tribunal also erred in applying the multiplier, by taking into mother’s age into consideration. The victim was aged 23 years at the time of death and therefore, the correct multiplier is 18. Accordingly, he prays for enhancement of compensation.
4. Shri. S.V.Hegde Mulkhand, learned Advocate for Insurer places reliance on judgments of the Hon’ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others 1 and Munna Lal Jain and another Vs. Vipin Kumar Sharma & others2 and submits that no material has been placed by the claimants to prove the earning capacity of the deceased. In the absence of any evidence, the Tribunal has rightly construed earning capacity of an able-bodied person in the year 2009 at Rs.4,500/- per month. So far as application of multiplier is concerned, in his usual fairness, Shri.Mulkhand, does not dispute that the applicable multiplier is 18.
1 AIR 2017 SC 5157 2 (2015)6 SCC 347 5 5. I have carefully considered rival contentions and perused the records.
6. Indisputable facts of the case are, the accident has taken place in the year 2009. The deceased was aged 23 years. There is no evidence on record to show the earning capacity of the deceased. This Court has consistently considered the earning capacity of an able-bodied person in the year 2009 as Rs.5,000/- per month.
7. Shri.Raju, is right in his submission that keeping in view the age of the victim the applicable multiplier is 18.
8. Following the decision in Pranay Sethi relied upon by Shri.Mulkhand, the compensation is recomputed by taking earning capacity of the deceased as Rs.5,000/- per month. If 40% (Rs.2,000/-) is added, then it would be Rs.7,000/- per month. One half namely 50% has to be deducted towards personal expenditure since deceased was unmarried. Thus, the earning capacity would be Rs.3,500/- per month. By applying the multiplier ‘18’, the 6 compensation works out to Rs.7,56,000/- (7,000 x ½ x 12 x 18). A sum of Rs.70,000/- is awarded under the conventional heads. Thus the total compensation payable works out to Rs.8,26,000/-. The compensation awarded by the Tribunal is Rs.3,91,000/-. Therefore, Rs.4,35,000/- is awarded as additional compensation payable with 6% interest p.a. from the date of claim petition till the date of payment.
The insurer shall deposit the enhanced compensation within four weeks from the date of receipt of a copy of this order. Out of the total compensation, Rs.4,00,000/- shall be deposited in a Nationalized Bank for a period of three years with liberty to the first claimant to withdraw periodical interest. The remaining amount shall be paid to the 1st claimant.
The appeal is allowed in part.
No costs.
Sd/- JUDGE SPS/AV