IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.6930 OF 2015 (MV) BETWEEN:
1. KALAYYA ACHARYA, AGED ABOUT 64 YEARS, S/O LATE SHEENA ACHARYA 2. CHANDRAVATHI ACHARTHI, AGED ABOUT 59 YEARS, W/O KALAYYA ACHARYA 3. KUM. SHASHIKALA ACHARTHI, AGED ABOUT 26 YEARS, D/O KALAYYA ACHARYA ALL ARE RESIDING AT MATHRUCHAYA, DARKASTH HOUSE, KATTIMAR, KABETTU, KARKALA KASBA VILLAGE, KARKALA TALUK.
...APPELLANTS (BY SRI. PAVANA CHANDRA SHETTY. H, ADVOCATE) AND:
1. MANJUNATHA ESHWARA SHERIGARA, AGED ABOUT 33 YEARS, S/O ESHWARA SHERIGARA, RESIDING AT KORALAKATTE, BANAVASI HOBALI, SIRSI TALUK, KARAWAR DISTRICT – 581 402.
2. THE BRANCH MANAGER, ICICI LOMBARD GENERAL INSURANCE CO. LTD., MANGALORE BRANCH, MAXIMUS COMMERCIAL COMPLEX, 2ND FLOOR, OFFICE NO.C-22, LIGHT HOUSE HILL ROAD, HAMPANKATTA, MANGALORE.
…RESPONDENTS (BY SRI.B.C.SHIVANNE GOWDA, ADVOCATE FOR R2; R1 NOTICE DISPENSED WITH V/O/DTD:06.10.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:22.01.2015 PASSED IN MVC NO.376/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, AMACT, KARKALA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT The claimants are in appeal questioning the correctness and validity of the judgment and award dated 22.01.2015 passed in MVC.No.376/2014.
2. The claimants filed claim petition on account of death of one Gangadara Acharya, who is son of claimant Nos.1 and 2. The claimants contended in the claim petition that on 25.02.2014 at about 5 p.m., the deceased was proceeding on his Yamaha Crux two wheeler bearing Reg.No.KA-20-W- 9089 from Jarkala towards Jodurasthe of Kukkundoor Village, Karkala Taluk. At that juncture, the driver of the Omni Car bearing Reg.No.KA-31-M-6963 owned by first respondent came in a rash and negligent manner and dashed against the deceased. On account of the impact, the deceased sustained grievous injuries and was immediately shifted to Adarsha Hospital, Udupi. Due to grievous injuries suffered, the said Gangadara Acharya succumbed to the injuries on 26.02.2014 at about 9.30 a.m.
3. The claimants specifically averred in the claim petition that deceased was doing stone designing work earning Rs.25,000/- p.m. and was contributing the entire income for the maintenance of the family and due to his untimely death, appellant Nos.1 and 2, who are parents and appellant No.3, who is the sister have lost the bread winner of the family and also suffered pain and agony. Hence, they filed claim petition seeking compensation of Rs.25,00,000/-.
4. Respondent No.1 – owner of the offending vehicle appeared through his counsel and filed written statement and denied the averments made in the claim petition. The first respondent also averred in the statement that the vehicle involved in the accident is duly insured as on the date of the alleged accident and that driver of the offending vehicle was holding a valid driving licence and in the event of compensation determined by the Tribunal, the second respondent is liable to indemnify the first respondent to pay the compensation.
5. The second respondent – Insurance Company, on receipt of notice, filed written statement denied the averments made in the claim petition and inter alia contended that the driver of the Omni Car involved in the accident was not holding effective driving licence to drive the vehicle and hence, prayed for dismissal of the claim petition.
6. The Tribunal based on the rival contentions, formulated issues and the claimants in support of their contention lead in oral evidence and produced documentary evidence vide Exs.P-1 to P-20.
The respondents, though had raised several contentions in the written statement, neither chose to lead any oral evidence nor produced any documentary evidence in support of their contention. The Tribunal having examined the material available on record, proceeded to hold that the driver of the offending vehicle was rash and negligent on account of which the said Gangadara Acharya suffered injuries and succumbed to the injuries on 26.02.2014 at about 9.30 a.m. The Tribunal further proceeded to determine the compensation.
7. On examining the material on record, the Tribunal held that the appellants/claimants have not produced any cogent evidence to demonstrate that the deceased was working as stone designer earning a sum of Rs.25,000/- p.m. In the absence of documentary evidence, the Tribunal proceeded to take the notional income of the deceased at Rs.5,000/- and awarded compensation of Rs.6,63,000/- towards loss of dependency.
8. Learned counsel appearing for the claimants would argue that the Tribunal was not justified in taking the income of the deceased at Rs.5,000/-.
9. On re-appreciation of the material on record, though we do not find fault with the reasoning assigned by the Tribunal, however we are of the considered opinion that the quantum of compensation is inadequate. Admittedly the accident occurred on 25.02.2014. In this context, the Tribunal in absence of any documentary evidence, ought to have taken the income of the deceased at Rs.8,500/-, which is notionally taken by this Court by referring to the chart prepared by the Legal Services Authority, High Court of Karnataka. In that view of the matter, we are of the view that the income of the deceased is to be taken at Rs.8,500/- and 40% future prospects is to be added. With this the income of the deceased is determined at Rs.11,900/-. It is not in dispute that the deceased was a bachelor and hence, 50% is liable to be deducted towards his personal expenses. On deduction of 50%, the dependency on the deceased is assessed at Rs.5,950/- and the multiplier applicable is 17 since the age of the deceased was 27 years.
Hence, the compensation payable under the head ‘loss of dependency’ would come to Rs.12,13,800/- (5,950x12x17). The claimants are also entitled for a sum of Rs.30,000/- under the other conventional heads. Hence, the total compensation payable to the claimants would be Rs.12,43,800/- as against Rs.7,03,000/- awarded by the Tribunal.
10. Accordingly, appeal is allowed in part. The claimants are entitled for an enhanced compensation of Rs.5,40,800/- with interest at the rate of 6% p.a. from the date of petition till realization.
The order of the Tribunal insofar as apportionment remains unaltered.
Sd/- JUDGE Sd/- JUDGE CA