IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO 5027 OF 2016(M V) BETWEEN 1. JAYAMMA W/O LATE SEENAPPA AGE 53 YEARS 2. NAGARAJA S/O LATE SEENAPPA AGE 33 YEARS BOTH ARE R/O CHICKJAJUR HOLALKERE TALUK – 577526. ... APPELLANTS (BY SRI. R. SHASHIDHARA - ADV.) AND 1. R. SIDDAPPA S/O MANJAPPA MAJOR, R/O CHANNAPPANAHATTY ROAD, (RETIRED KEB EMPLOYEE) CHICKJAJUR VILLAGE, HOLALKERE TALUK-577 526, OWNER OF VEHICLE BEARING NO. KA-16/A-6978.
2. THE MANAGER RELIANCE GENERAL INSURANCE CO LTD., NO.1 AND 2, 1ST FLOOR, MAGANUR COMPLEX NEAR KSRTC BUS STAND CHITRADURGA TOWN-577 501. ... RESPONDENTS (BY SRI. PURUSHOTHAMA M.S. ADVOCATE FOR R-1; SRI D. VIJAYA KUMAR - ADV., FOR R-2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.04.2016 PASSED IN MVC NO. 88/15 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, HOLALKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this matter is listed for orders, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. This appeal is preferred by the appellants/claimants against the judgment and award dated 28.04.2016 passed by the Tribunal in MVC No.88/2015 seeking enhancement of compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 08.01.2014 at about 9.00 p.m. deceased Seenappa after completing his hotel work was proceeding near Chakratheertha bar, Chickjajur village, Holalkere Taluk, the driver of the tempo toofan bearing Reg.No.KA-16/A-6978 drove the same in a rash and negligent manner with high speed without observing traffic rules and dashed against the deceased. As a result of the said impact, the deceased sustained grievous injuries all over his body and died at the spot. Prior to the accident he was hale and healthy and was earning Rs.15,000/- by doing hotel business. Due to the untimely death of Seenappa the petitioners being the dependants filed the claim petition against the respondents seeking compensation.
4. In pursuance to issuance of notice, respondent no.1 appeared through counsel but did not file any objection. Respondent No.2 contested the petition by filing objection statement and denied all the averments in the petition in so far as accident and death of Seenappa due to the injuries sustained. Based upon the contentions of the parties, the Tribunal framed the issues. In order to establish their case, petitioner no.2 got examined himself as PW.1 and got marked 8 documents as per Ex.P1 to P8. Respondents examined the Legal Claim Manager as RW.1 and got marked Ex.R1 – insurance policy. The Tribunal after hearing learned counsel for the petitioners as well as respondent insurer, and on evaluation of oral and documentary evidence on record, passed the impugned judgment awarding compensation of Rs.6,21,000/- with interest @ 7.5% p.a. from the date of petition till the date of deposit. It is this judgment which is challenged under this appeal, by urging various grounds.
5. Learned counsel for the appellants contends that the compensation awarded by the Tribunal under the head loss of dependency is on the lower side and the same needs intervention of this court by enhancing the income of the deceased. Further, the Tribunal ought not to have deducted 50% towards personal expenses. The compensation awarded under the conventional heads is on lower side and the same needs to be enhanced. On all these grounds, learned counsel for appellants prays for allowing the appeal.
6. Per contra, learned counsel for the respondent- insurer contends that the driver of the offending vehicle did not possess valid and effective driving licence to drive and further the terms and conditions of insurance policy has been violated. The rate of interest calculated by the Tribunal at 7.5% is on higher side and it needs to be scaled down. Further, he contends that the Tribunal, on appreciation of the evidence/material on record has rightly assessed the income of the injured and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
7. In this background of the contentions taken by learned counsel for the appellants and learned counsel for the respondent – insurer as stated supra, it is relevant to state that there is no dispute with regard to death of deceased – Seenappa who met with an accident on 08.01.2014, wherein the driver of the offending tempo bearing Reg.No.KA-16/A-6978 drove the same in a rash and negligent manner with high speed without observing traffic rules and dashed against the deceased, as a result of which he sustained grievous injuries all over the body and died at the spot. The claim petition is supported by the oral and documentary evidence such as FIR, Complaint, spot mahazar, sketch, IMV report, inquest report, PM report and charge sheet as per Exs.P1 to P8. ExP.4 and P.5 are the inquest report and post mortem report which reveals the death of Seenappa due the accident injuries.
8. The petitioners have claimed that deceased was doing hotel business and used to earn Rs.15,000/- per month, but the Tribunal has taken notional income of the deceased as Rs.6,000/- without there being any documentary proof in this regard and by taking 11 multiplier as per Sarla verma’s case, has awarded Rs.3,96,000/- towards loss of dependency. But having regard to the avocation of the deceased and the year of accident, the notional income taken by the Tribunal is on lower side and the same is enhanced to Rs.8,500/-. Accordingly, the compensation under the head loss of dependency as per the memo of calculation submitted by the learned counsel on both sides, would work out as under:
8,500 + 850 = 9350 9,350 x 12 x 11 x 2/3 = 8,22,800/-
9. Further the Tribunal has awarded compensation of Rs.1,00,000/- towards loss of consortium, Rs.1,00,000/- towards loss of love and affection and Rs.25,000/- towards transportation of dead body, cremation and obsequies ceremonies. In view of ratio of reliance in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in AIR 2017 SC 5157 the compensation under conventional heads should not exceed Rs.70,000/-.
In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Compensation awarded under the heads Loss of dependency Loss of consortium By MACT By this court 3,96,000 8,22,800 1,00,000 40,000 Funeral Expenses 25,000 15,000 Loss of love and affection 1,00,000 -
Loss of estate - 15,000 Total 6,21,000 8,92,800 Thus, in all, the claimants are entitled to total compensation of Rs.8,92,800/- as against Rs.6,21,000/- awarded by the tribunal.
Accordingly, the appeal is allowed in part. The impugned judgment and award dated 28.04.2016 passed by the Tribunal in MVC No.88/2015 is hereby modified. The claimants/appellants are entitled for enhanced compensation of Rs.2,71,800/- with interest @ 6% p.a. from the date of petition till realisation.
Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be released in favour of first appellant – Jayamma, W/o Seenappa on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE DKB