IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.1289/2013 [MV] BETWEEN:
1. SMT. JAYAMMA W/O H.NARASIMHA MURTHY AGED ABOUT 53 YEARS 2. D.N.RAVISH KUMAR S/O NARASIMHA MURTHY AGED ABOUT 33 YEARS BOTH ARE RESIDING AT C/O. NARASIMHA SWAMY NIRMALA SCHOOL ROAD NARAYANAPPA BLOCK NEW BANK COLONY KONANKUNTE BENGALURU-560065.
(BY SRI. N S BHAT, ADV.) AND:
1. SMT. CHINNU BAI W/O. VASUDEVA RAO AGED ABOUT 40 YEARS NO.C-56 MARAMMA TEMPLE STREET CHIKKAPETE, BENGALURU-560053.
...APPELLANTS 2. THE MANAGER THE RELIANCE GENERAL INSURANCE CO. LTD., NO.3, 1ST FLOOR NORTH WING, MANANDI PLAZA ST.MARKS ROAD BENGALURU-560001. …RESPONDENTS (BY SRI.K SURYANARAYANA RAO, ADV. FOR R1 SRI. D VIJAYAKUMAR, ADV. FOR R2) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.01.2012 PASSED IN MVC.NO.8464/2010 ON THE FILE OF THE II ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU, 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 in appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 30.01.2012 passed in MVC No.8464/2010 on the file of MACT, Bengaluru.
2. The claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of one Narasimha Murthy in a Road Traffic Accident. It is stated that on 08.05.2010 when the deceased was sleeping under a tree near BGS guest house, Adichunanagiri, Nagamangala Taluk, the Driver of the Toyota Qualis bearing Reg.No.KA-05-B- 8494 recklessly and negligently reversed the vehicle, due to which the vehicle ran over the deceased and he sustained grievous injuries and succumbed to the injuries. It is stated that the deceased was aged 64 years as on the date of accident. He was earning more than Rs.10,000/- per month by conducting tutions.
3. On issuance of summons, the 2nd respondent – Insurance Company appeared before the Tribunal and filed its objections denying the petition averments. Further it was stated that the driver of the offending vehicle had no valid and effective driving licence as on the date of accident, but admitted the issuance of policy. The compensation sought by the claimants is exorbitant and excessive. Claimant No.1 wife of the deceased examined herself as PW.1 and also examined PW.2, apart from marking Exs.P1 to P12. The Tribunal based on the material placed on record awarded total compensation of Rs.2,69,000/- with interest at 6% p.a. from the date of petition till the date of realization, on the following heads :-
Loss of income/dependency 2,24,000/- Loss of consortium 10,000/-
Loss of estate 10,000/-
Loss of love and affection 10,000/- Transportation and funeral expenses 15,000/-
Total 2,69,000/-
While awarding compensation on the head of loss of dependency, the Tribunal assessed notional income of the deceased at Rs.4,000/- per month and deducted 1/3rd towards personal expenses. Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellants are before this Court in this appeal.
4. Heard the learned counsel for the appellants and learned counsel for the 2nd respondent – Insurance Company. Perused the entire material on record.
5. The learned counsel for the appellants would submit that the compensation awarded by the Tribunal is on the lower side. He submits that the deceased was a retired Primary School Teacher and was getting pension as well as he was earning Rs.10,000/- by conducting tuition classes. He submits that the Tribunal assessed the notional income at Rs.4,000/- per month, which is on the lower side. He submits that the deceased was earning more than Rs.10,000/- per month by conducting tuitions. It is his further submission that the compensation awarded on conventional heads is on the lower side, whereas they would be entitled for enhancement of Rs.70,000/- on conventional heads.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the Tribunal has awarded just compensation which requires no interference. Further he submits that the deceased was getting pension and the wife would get family pension. Further submits that the claimants have not placed on record any material to indicate that the deceased was earning income from conducting tuitions. He submits that the claimants are not entitled for enhancement of compensation.
7. Having heard the learned counsels for the parties and on perusal of the material placed on record, the only point that arise for consideration is as to “Whether the claimants would be entitled for enhancement of compensation in the facts and circumstances of the case ?” Answer to the said point is in the affirmative for the following reasons :
The occurrence of the accident on 08.05.2010 involving Toyota Qualis bearing Reg.No.KA-05-B-8494 and the accidental death of Narasimha Murthy is not in dispute in this appeal. The claimants, who are wife and children of the deceased are in appeal seeking enhancement of compensation. The deceased was a retired Primary School Teacher, he was getting pension. The 1st claimant is the wife of the deceased Narasimha Murthy, who would get family pension on the death of her husband. When there is death by accident or natural death the wife of the Government servant would get family pension. But in the present case, it is stated that the deceased was earning Rs.10,000/- per month from conducting tuitions, to indicate the exact income from tuitions the claimants have not placed any material on record. In the absence of any material to indicate the exact income earned by the deceased from conducting tuition classes, the same will have to be determined notionally. This Court and Lok Adalath while settling the accident claims of the year 2010 would normally take notional income of Rs.5,500/- per month. But in the present case, no material is placed on record to indicate the exact income of the deceased from conducting tuitions, it would be appropriate to take the notional income at Rs.5,000/- per month for determining the compensation on the head ‘Loss of future income’. The Tribunal has awarded compensation of Rs.45,000/- on conventional heads, whereas claimants are entitled to Rs.70,000/- in view of the decision of the Apex Court in NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680. Accordingly the claimants would be entitled for the following modified
8. The appeal is allowed in part. The impugned judgment and award is modified to the above extent and the claimants are entitled to enhanced compensation in a sum of Rs.3,50,000/- as against Rs.2,69,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
This Court, vide order dated 04.02.2019 allowed I.A.No.1/2018 for recalling the order dated 30.06.2015, by which peremptory order was passed dismissing the appeal. I.A.No.2/2018 was also allowed condoning the delay of 1189 days in filing the recalling application. However, while condoning the delay, this Court has observed that the claimants are not entitled to interest for the delayed period. Hence, the appellants/claimants are not entitled to interest for 1189 days of delay in filing the recalling application.
Sd/- JUDGE NG* CT:bms