IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.5455/2012 (MV) BETWEEN:
1. GRACY MENEGES WILLIAM MENEGES AGED 40 YEARS 2. NITHIN LAWRENCE MENEGES AGED 16 YEARS SON OF LATE WILLIAM MENEGES 3. NAVEEN ANTHONY MENEGES AGED 14 YEARS SON OF LATE WILLIAM MENEGES SINCE APPELLANT NOS.2 AND 3 ARE MINORS REPRESENTED BY NATURAL GUARDIAN APPELLANT No.1 RESIDING AT NO.285, UDAYAGIRI BADAVANE HASSAN. … APPELLANTS (BY SRI. NARENDRA GOWDA, ADVOCATE) AND:
1. GHATGE PATEL TRANSPORT LIMITED NO.9, NEW MISSION ROAD BENGALURU-27.
2. THE MANAGER NEW INDIA ASSURANCE CO. LTD. NO.1036, RAJARAM ROAD KOLLAPURA REPRESENTED BY THE BRAND MANAGER NEW INDIA ASSURANCE CO. LTD. HARSHA MAHAL ROAD HASSAN.
3. DIVISIONAL CONTROLLER KSRTC, NEAR RAILWAY STATION B.M. ROAD HASSAN-573 201. ... RESPONDENTS (BY SRI. M. NARAYANAPPA, ADVOCATE FOR R2 SMT. JYOTI M., ADVOCATE FOR R3 R1–NOTICE DISPENSED WITH VIDE ORDER DT:19.06.2015) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.11.2011 PASSED IN MVC.NO.234/2008 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HASSAN PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This Miscellaneous First Appeal is filed against the judgment and award passed in MVC No.234/2008 dated 4.11.2011 on the file of the Additional Senior Civil Judge and Additional MACT at Hassan questioning the quantum of compensation.
2. It is the case of the claimants that the deceased was working as a driver and was earning gross salary of Rs.13,407/- and after deduction, his net salary was Rs.10,870/-. The Tribunal has wrongly comes to the conclusion that the deceased was getting net salary of Rs.9,386/- per month which is against the material available on record. The Tribunal has committed an error in awarding a meager compensation.
3. Learned counsel appearing for the appellants also would contend that the Tribunal has committed an error in taking the income at Rs.9,386/- of the deceased instead of Rs.13,407/-. Hence, the loss of dependency has to be reconsidered. The other grounds urged by the appellants’ counsel is that the Tribunal has awarded only an amount of Rs.40,000/- under the head ‘Conventional Heads’ and the same has to be enhanced.
4. On the other hand, learned counsel appearing for the Insurance Company would contend that the Tribunal has rightly taken the income of the deceased at Rs.9,386/- and not considered the overtime allowances, washing allowances, paid holiday allowances as the said allowances are not fixed allowances. Hence, the Tribunal has not committed any error in evaluating the compensation under the head of ‘loss of dependency’. The Tribunal has awarded an amount of Rs.40,000/- towards ‘conventional heads’. In view of the decision of the Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, the same may be enhanced to Rs.70,000/- instead of Rs.40,000/-.
5. Having heard the appellants’ counsel as well as counsel appearing for the respondents, the points that arise for consideration of this Court are:-
1. Whether the Tribunal has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?
2. What order?
6. Points No.1 and 2: On perusal of the materials available on record, the Tribunal while evaluating the compensation under the head of ‘loss of dependency’, has taken note of Ex.P.7. The Tribunal also has taken note of the allowances, which cannot be taken as income mainly the overtime allowances, washing allowances, paid holiday allowances and has rightly comes to the conclusion that those allowances are not the permanent allowances since the same depends upon his work. The other allowances including HRA and admissible allowances are also taken note of by the Tribunal while assessing his monthly income. Hence, the very contention that the Tribunal has taken the income of the deceased at only Rs.9,386/- cannot be accepted. The Tribunal, only after taking into consideration of Ex.P.7, has rightly comes to the conclusion that Rs.9,386/- was the regular income of the deceased. Hence, I do not find any error committed by the Tribunal in assessing the compensation under the head of ‘loss of dependency’.
7. However, on perusal of the judgment and award of the Tribunal, only an amount of Rs.40,000/- is awarded under the ‘Conventional heads’. In view of the judgment of Pranay Sethi’s Case, the same has to be enhanced to Rs.70,000/- instead of Rs.40,000/-. Hence, the judgment and award passed by the Tribunal has to be modified.
8. In view of the discussion made above, I pass the following:
ORDER (i) The appeal is allowed in part.
(ii) An amount of compensation of Rs.30,000/- along with interest at the rate of 6% per annum from the date of petition till the date of payment is granted in addition to the compensation awarded by the Tribunal.
(iii) The Insurance Company is directed to pay the enhanced compensation of Rs.30,000/- along with interest at the rate of 6% per annum from the date of petition till the date of payment to the claimants within 8 weeks from today.
Sd/- JUDGE PYR