IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 7000 OF 2015 (MV) BETWEEN 1. HONNURAMMA W/O LATE K. GURAPPA @ GURANNA AGED ABOUT 40 YEARS OCCUPATION: HOUSE WIFE R/O THAYAKKANAHALLI VILLAGE HOSAHALLI HOBLI KUDLIGI TALUK BELLARY DISTRICT PIN – 583218.
2. G. ONKARAMMA D/O LATE K. GURAPPA @ GURANNA AGED ABOUT 21 YEARS PHYSICALLY HANDICAP OCCUPATION: NIL R/O THAYAKKANAHALLI VILLAGE HOSAHALLI HOBLI KUDLIGI TALUK BELLARY DISTRICT PIN – 583218.
3. G. KENCHAPPA S/O LATE K. GURAPPA @ GURANNA AGED ABOUT 19 YEARS OCCUPATION : STUDENT R/O THAYAKKANAHALLI VILLAGE HOSAHALLI HOBLI KUDLIGI TALUK, BELLARY DISTRICT PIN – 583218.
4. G. KARIBASAPPA S/O LATE K. GURAPPA @ GURANNA AGED ABOUT 17 YEARS, MINOR OCCUPATION: STUDENT REPRESENTED BY HIS NATURAL MOTHER 1ST APPELLANT HONNURAMMA W/O LATE K. GURAPPA @ GURANNA R/O THAYAKKANAHALLI VILLAGE HOSAHALLI HOBLI KUDLIGI TALUK BELLARY DISTRICT PIN – 583218.
5. SMT. GANGAMMA W/O KENCHAPPA AGED ABOUT 56 YEARS OCCUPATION: COOLIE R/O THAYAKKANAHALLI VILLAGE HOSAHALLI HOBLI KUDLIGI TALUK BELLARY DISTRICT PIN – 583218.
6. KENCHAPPA KANAMADAGU S/O KOTAPPA AGED ABOUT 66 YEARS OCCUPATION: COOLIE R/O THAYAKKANAHALLI VILLAGE HOSAHALLI HOBLI KUDLIGI TALUK BELLARY DISTRICT PIN – 583218.
... APPELLANTS (BY SRI. H. ASHOK KUMAR - ADVOCATE) AND 1. C. V. SHIVANANDA S/O BHYRE GOWDA AGE MAJOR OCCUPATION OWNER OF LARRY NO. KA-05/AF-6369 R/O NO.76 CHIKKAMARAPPANAHALLI TIPTUR TALUK TUMKUR DISTRICT PIN – 572201.
2. THE BRANCH MANAGER RELIANCE GENERAL INSURANCE CO-LTD BRANCH OFFICE, 2ND FLOOR S.M. TOWER 11TH MAIN, 3RD BLOCK JAYANAGAR, BENGALURU PIN – 560011.
... RESPONDENTS (BY SRI. H. S. LINGARAJ– ADVOCATE FOR R-2 NOTICE TO R-1 DISPENSED WITH VIDE COURT ORDER DATED 11.01.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.05.2015 PASSED IN MVC NO. 14/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, CHALLAKERE, 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 Heard the learned counsel for the appellants – claimants and the learned counsel for respondent No. 2 – Insurance Company and perused the records. Notice to Respondent No.1 has been dispensed with.
2. The legal heirs, who are the dependents of the deceased K. Gurappa have preferred this appeal, being not satisfied with the quantum of compensation awarded by the Tribunal in the impugned judgment dated 08.05.2015 in MVC No.14/2014, seeking enhancement of compensation.
3. The factual matrix is that on 15.09.2013 at about 6.00 p.m., when the deceased Gurappa was proceeding on a motor cycle bearing No.KA-35/X-8428 along with one Badagi Palaiah, when they neared Prakash Dabha on State Highway-19 road of Hirehally, the driver of the lorry bearing Regn.No.KA-05-AF-6369 who was driving it in a rash and negligent manner, had suddenly stopped the lorry without giving any signal. Thereby, the deceased who was proceeding behind the said lorry had dashed his vehicle to the lorry. Consequently, the said Gurappa sustained grievous injuries to his head and chest and was taken to Government Hospital, Challakere, where the Doctor declared him dead and proceeded to conduct post- mortem.
In view of the untimely death of the deceased, his wife, three minor children and parents who were the legal representatives of the deceased filed a claim petition before the Tribunal seeking compensation.
4. On issuance of notice, respondent No.1 – owner of the lorry remained absent and was placed exparte. Whereas Respondent No.2 – Insurance Company appeared and filed objection and contested the petition. Based upon the pleadings, the Tribunal framed the issues. In order to prove the case, first appellant was examined as PW.1 and the pillion rider was examined as PW-2 and got marked 9 documents as per Exs.P1 to P9. On the side of the respondents, one Surendra C.V. was examined as RW.1 and the Insurance Police was marked as Exhibit R1. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer. After hearing the arguments of learned counsel for the petitioners and learned counsel for respondent-insurer and after recording the findings, the Tribunal passed the impugned judgment and awarded compensation of Rs.4,00,500/- with interest @ 6% p.a. from the date of petition till the date of realization. It is this judgment which is under challenge in this appeal.
5. The learned counsel for the appellants vehemently contended that the Tribunal has erred in assessing the income of the deceased at Rs.6,000/- for an accident of the year 2013 despite the fact that the deceased was working as a Weaver in Woolen Handloom Society at Thayakkanahalli and was getting a monthly income of Rs.20,000/-. Though any salary certificate has not been produced to evidence the said fact, having regard to the fact that the accident had occurred in the year 2013, the Tribunal ought to have taken his monthly income at least at Rs.8,000/- per month in order to arrive at the compensation towards ‘Loss of dependency’. Hence, the learned counsel contends that the assessment of the income by the Tribunal is on the lower side and needs to be enhanced. It is the further contention of the learned counsel that the Tribunal has not added any income towards his future prospects. Since the deceased was aged 42 years at the time of his death, in view of the decision of the Apex Court in National Insurance Company Limited –vs- Pranay Sethi (AIR 2017 Supreme Court 5157), 25% of his income ought to have been added towards future prospects, which has not be done. Further, towards conventional heads as well, the Tribunal has awarded only an amount of Rs.45,000/-. Again, as per the ruling of the Apex Court in Pranay Sethi (supra), an amount of Rs.70,000/- ought to be awarded towards conventional heads. On all these grounds, the learned counsel for the appellants – claimants contends that the compensation awarded by the Tribunal be enhanced.
6. Per contra, the learned counsel appearing for the insurer submitted that the Tribunal, on proper appreciation of the evidence on record has rightly assessed the income of the deceased and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
7. On careful evaluation of the material on record, it is seen that the claimants being the wife, his three minor children and parents of the deceased, are the dependents of the deceased who was aged 42 years. Prior to his death, the deceased was working as a Weaver in ‘Revanasiddeshwara Handloom Weavers Productions Sales Co-Operative Society Ltd., which is evident from Exhibit P9. But however, his Salary Certificate has not been produced to prove that he was earning Rs.20,000/- per month. Hence, in view of the settled norms, the accident being of the year 2013, his income is hereby taken at Rs.8,000/- per month as against Rs.6,000/- taken by the Tribunal in order to re- assess the compensation awarded by the Tribunal.
Further, I find that the Tribunal has committed an error in not adding any income towards his future prospects. In view of the fact that the deceased was employed in the Weavers Co-operative Society and in view of the fact that he was aged 42 years, as per the decision in Pranay Sethi (supra), I find it appropriate to add 25% of the income towards future prospects. Hence, taking the income of the deceased at Rs.8,000/- and adding 25% towards his future prospects the income comes to Rs.10,000/-. Deducting one-fourth towards his personal expenses, the income would be Rs.7,500/- per month. With Rs.7,500/- p.m. as the income and applying multiplier ‘14’, the compensation towards Annual Loss of dependency is re-assessed at Rs.12,60,000/- (7500 x 12 x 14) as against Rs.7,56,000/- awarded by the Tribunal.
Further, in view of the ruling of the Apex Court in National Insurance Company Limited –vs- Pranay Sethi (AIR 2017 Supreme Court 5157), the compensation awarded by the tribunal under ‘Loss of love and affection’, ‘Transportation and Funeral expenses’, and ‘Loss of consortium’ totally amounting to Rs.45,000/- is very much on the lower side and hence the same is enhanced by an amount of Rs.25,000/-. As a result, totally Rs.70,000/- is awarded under the above three conventional heads put together. The total compensation would come to Rs.13,30,000/- as against Rs.8,01,000/- awarded by the Tribunal. Thus, the enhanced compensation would be Rs.5,29,000/-.
8. However, in view of the fact that the Tribunal has held 50% contributory negligence on the deceased Gurappa having regard to the fact that he was the one who dashed to the lorry from behind and caused the accident, the said finding of the Tribunal fixing 50% contributory negligence on the deceased, remains undisturbed. In view of the said fact, the Insurance Company would be liable to pay the claimants – appellants only 50% of the total compensation awarded by the Tribunal as well as enhanced by this Court.
Fifty percent of the total compensation would come to Rs.6,65,000/- and the 50% of the enhanced compensation would come to Rs.2,64,500/-, which are the amounts required to be paid by the Insurance Company to the claimants.
9. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Thus, in all, the claimants / appellants are entitled to a total compensation of Rs.6,65,000/- as against Rs.4,00,500/- awarded by the tribunal, which shall carry interest at 6% per annum. The enhanced compensation would be Rs.2,64,500/-.
Accordingly, I proceed to pass the following:
O R D E R The appeal is allowed in part. In modification of the impugned judgment and award dated 8.5.2015 passed by the Tribunal in MVC No.14/2014, the compensation payable to the claimants is enhanced from Rs.4,00,500/- to Rs.6,65,000/-. The enhanced compensation would come to Rs.2,64,500/-. The second Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimants in terms of the award, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Office to draw the decree accordingly.
SD/- JUDGE KS