IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE M.F.A. NO.2107 OF 2015 (MV) BETWEEN:
1. KARUNAKARA POOJARY AGED ABOUT 37 YEARS, S/O SANJEEVA POOJARY 2. KUMARI PRAGATHI AGED ABOUT 13 YEARS, D/O KARUNAKARA POOJARY 3. KUMARI MEGHANA AGED ABOUT 8 YEARS, D/O KARUNAKARA POOJARY 4. HAVALI POOJARY AGED ABOUT 64 YEARS, S/O LATE PANJU POOJARY 5. PARVATHI H.POOJARY AGED ABOUT 60 YEARS, W/O HAVALI POOJARY 6. KUMARI SHYMALA AGED ABOUT 26 YEARS, D/O.HAVALI POOJARY SINCE APPELLANT NOS.2 AND 3 MINORS THEY ARE REPRESENTED BY THEIR FATHER GUARDIAN APPELLANT NO.1 ALL ARE RESIDING AT BIDIKADU, KORGI VILLAGE, HOSMATTA POST, KUNDAPURA TALUK ...APPELLANTS (BY SRI PAVAN CHANDRA SHETTY.H., ADV.) AND:
1. LOKESH AGED ABOUT 25 YEARS, S/O RAMA, R/O BEEDIKADU, KORGI VILLAGE, KUNDAPURA TALUK 2. IFFCO TOKIO GENERAL INSURANCE CO. LTD., NO.41, 2ND FLOOR, CRUSTU COMPLEX, LEVELLE ROAD, BENGALURU REP: BY ITS MANAGER ...RESPONDENTS (BY SRI.B.PRADEEP, ADV. FOR R2; NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:19.12.2014 PASSED IN MVC NO.728/2013 ON THE FILE OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE, UDUPI, (SITTING AT KUNDAPURA), KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Though in this appeal, the compensation claimed is Rs.20,44,936/-, with the consent of the learned counsel for the appellant to restrict the compensation to Rs.10,00,000/-, this appeal is taken up for final disposal.
2. On 03rd June, 2013 when the deceased was traveling as a pillion rider on his motorcycle bearing registration No.KA 20 Y 3514 when the vehicle reached near Government School, Heskuttu village, the rider lost control and caused the accident. The pillion rider fell down and sustained head injuries. Immediately she was shifted to Adarsha hospital, Udupi. After one week, i.e. on 09th June, 2013, the injured succumbed to the injuries. The husband, children and parents made claim petition before the Motor Accident Claims Tribunal, Kundapura seeking compensation. The Tribunal, by its judgment and award dated 19th December 2014 passed in MVC No.728 of 2013 awarded compensation of Rs.6,05,064/- with interest at 8% per annum from the date of petition till the date of realisation. Being not satisfied with the compensation awarded, the appellant is before this court in this appeal, seeking enhancement.
3. The learned counsel appearing for the appellant seeks enhancement on the following grounds. Firstly, he submits that in the claim petition the claimants though have claimed that the deceased was earning Rs.12,000/- per month by doing coolie work, the Tribunal has disbelieved the same and has assessed the income at Rs.4,000/- per month which is very much on the lower side. He submits that the family consisted of seven members including the deceased. Hence, the family consisting of seven members in a place like Kundapura should earn a handsome income for their living. The learned counsel further submits that the Tribunal has committed an error in giving deduction at one-third. Hence he prays for enhancement of compensation.
4. The learned counsel appearing for the respondent- Insurer submits that the Tribunal has considered the oral and documentary evidence placed before it and has awarded the compensation which is just and proper. The same does not call for interference. Hence, he prays for dismissal of the appeal.
5. Heard the learned counsel for the parties and gone through the judgment and award of the Tribunal. The accident is not in dispute and the death of the wife in the accident is also not in dispute. There is considerable force in the submission of the learned counsel for the appellants. In the cases where claim petitions are filed seeking compensation for the death of a person in the road accident, the Courts have to be magnanimous in assessing the income. In some of the avocations like coolie, mason, painter, or self-occupation, etc., the claimants cannot produce any documentary evidence except submitting orally as to the earning of the deceased. In the present case the deceased was a coolie and was aged 28 years. In such case, the Court has to assess the monthly income notionally. This court, normally, assess the notional income with relevance to the year of accident, place of residence, cost of living prevalent then, etc. In the instant case the accident is of the year 2013. The place of accident is Kundapura Taluk. Taking into consideration the place of residence as also the number of dependents which is seven in number including the deceased, it is to be presumed that the family should earn a decent income for living. For the accident of the year 2013, this Court assess the notional income at Rs.8,000/- per month and the same is taken in this case also. The second submission of counsel for the appellants is that the Tribunal has committed an error in giving deduction at one third. As per the judgment of the Hon'ble Supreme Court in the case of SARLA VARMA if the family consists of more than six dependents then the deduction should be given at one-third. Further, the future prospects is to be calculated at 40%. Hence, the monthly income would be Rs.8,000/- x 40% = Rs.11,200/-. Accordingly the calculation under the head loss of dependency would be Rs.11,200/- x 12 x 16 x 2/3 comes to Rs.14,33,600/- the same is awarded as against Rs.5,12,064/-. Under conventional heads, all put together, Rs.15,000/- is awarded. In the result, the enhanced compensation would be Rs.9,36,536/-. It is made clear that the enhanced amount carries interest at the rate as is awarded by the Tribunal. The apportionment of the enhanced amount also shall be as per the award of the Tribunal. Appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn