IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL M.F.A.NO.2306 OF 2010 (MV) BETWEEN:
1. SMT. LAKSHMAMMA W/O LATE NARAYANAPPA AGED ABOUT 45 YEARS 2. SRINIVASA S/O LATE NARAYANAPPA AGED ABOUT 23 YEARS BOTH ARE R/AT A.D.COLONY, BEHIND POLICE STATION, MULBAGAL CITY KOLAR DISTRICT …APPELLANTS (BY SMT. SUGUNA R REDDY, ADVOCATE) AND:
1. MOHAMMED SADHIQ S/O AMEERJA MAJOR IN AGE R/AT DOOR NO.5, 6TH A CROSS, SUBEDARAPALYA YESHWANTHAPURA BANGALORE – 560 027 2. THE BRANCH MANAGER ORIENTAL INSURANCE CO. LTD BRANCH OFFICE, NO.2 POST BOX 2, NO.210 NO.6/8, CHAMRAJ DOUBLE ROAD MYSORE – 570 024 ... RESPONDENTS (BY SRI.ASHOK N NAYAK, ADVOCATE FOR R2; R1 SERVED AND UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.03.2009 PASSED IN MVC NO.243/2004 ON THE FILE OF III ADDITIONAL CIVIL JUDGE (SR. DN.) KOLAR, 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:
JUDGMENT This appeal is filed by the appellants/claimants assailing the judgment and award passed by the III Addl. Civil Judge (Sr.Dvn.) and MACT, Kolar in M.V.C.No.243/2004 dated 30.03.2009.
2. Heard the learned counsel appearing for the parties. The appeal is admitted and with the consent of the learned counsel appearing for the parties, it is taken up for final disposal.
3. Brief facts leading the case are that;
On 19.07.2004 at about 10.00 p.m. Narayanappa, who was coming back after going to Tatitkal Village and when he was proceeding on the footpath on NH4, at that time a tempo came from the opposite direction in rash and negligent manner and dashed to the said Narayanappa. As a result of the same, he fell down and sustained grievous injuries and subsequently he succumbed to the said injuries. He further contended that at the time of the accident, the deceased Narayanappa doing carpentry work and earning Rs.250/- to Rs.300/- per day and the petitioners (wife and the son) are the dependents of the deceased and as such they have filed the claim petition for claiming the compensation for having lost bread earner.
4. Though after service of notice respondent Nos.1 and 2 appeared, the respondent No.2 alone filed the written statement by denying the contents of the petition. He further contended that the said vehicle has been insured with the respondent No.2 and his liability is subject to the terms and conditions of the policy. He further contended that the said accident has taken place due to the fault of the deceased himself and as such he is not liable to pay any compensation to the petitioners.
5. On the basis of the pleadings, the Tribunal framed the following issues:
1. Whether the petitioners prove that one Narayanappa S/o Changalarayappa died in a Road traffic accident that occurred on 19.07.2004, at about 10.00 p.m. in between Mulbagal- Nangali, near Tatikal Village due to rash or negligent driving of Tempo bearing No.KA-09/A-28889 by its driver?
2 Whether the respondents prove that they are not liable to pay compensation for the reasons stated in the objection statement?
3 Whether the petitioners are entitled for compensation, if so to what amount and from whom?
4 What order or award?
6. In order to prove the case of the petitioners, petitioner No.1 was examined as PW1 and also examined one more witness as PW2 and also got marked the documents at Ex.P1 to P8. On behalf of the respondent RW1 came to be examined and RP1 was marked. After hearing the parties to the lis, the impugned judgment and award came to be passed.
7. The main grounds urged by the learned counsel for the appellants and that the Tribunal has erred in awarding the compensation on various heads and compensation awarded on loss of dependency and even the compensation awarded on conventional heads is also on the lower side. On these grounds she prays for allowing the appeal by enhancing the compensation awarded by the Tribunal.
8. Per contra, learned counsel appearing for the respondent No.2 - Insurance Company vehemently argued by supporting the judgment and award. He further contended that the Tribunal after considering the age of the deceased and the dependency has awarded just compensation and prays for dismissal of the appeal.
9. The accident in question, so also the offending vehicle insured with respondent No.2 - Insurance Company is not in dispute. As could be seen from the judgment and award of the Tribunal, the Tribunal has taken the income of the deceased at the rate of Rs.3,000/- per month and after deducting 1/3 towards personal expenses of the deceased and applying multiplier of 8 has awarded a sum of Rs.1,92,000/-
towards loss of dependency. In the normal course, it is justified but however, while granting the compensation, the avocation, age and the year of accident has to be taken into consideration. The accident in question has taken place in the year 2004. During the year, 2004, the notional income at Rs.3,500/- per month is the yardstick, which used to be taken even in the absence of proof of any documents. Therefore, I think it just and proper to accept the same. The deceased was aged 51 years at the time of the accident, but the Tribunal has adopted multiplier 8 instead of 11. Therefore, by considering the income of the deceased at Rs.3,500/- per month, after deducting 1/3rd of the same towards the personal expenses of the deceased and after applying multiplier 11, the claimants are entitled to a sum of Rs.3,08,000/- towards loss of dependency. Even as could be seen from the judgment and award, the Tribunal has awarded an amount of Rs.3,000/- towards loss of estate; Rs.3,000/- towards loss of the love and affection and Rs.2,000/- towards funeral expenses. The said award of amount on the conventional heads appears to be on the lower side. Keeping in view the decision of the Hon’ble Apex Court in the case of Rajesh & Others /vs./ Rajbir Singh & Others (2013) 9 SCC 54, I feel it requires to be enhanced. In that light the appellants are entitled to a sum of Rs.50,000/- towards loss of estate: Rs.25,000/- towards loss of love and affection and an amount of Rs.25,000/- towards funeral and transportation charges. In all the appellants/claimants are entitled to a sum of Rs.4,08,000/-.
10. The Tribunal has totally awarded Rs.2,00,000/- which has to be deducted from the aforesaid amount of Rs.4,08,000/-. Thus, the claimants are entitled for a balance compensation of Rs.2,08,000/- with 6% interest.
11. In the result, the appeal succeeds and it is accordingly allowed in part. The judgment and award passed by the Tribunal in MVC No.243/2004 is modified as stated above. The second respondent- Insurance Company is directed to deposit a sum of Rs.2,08,000/- with interest at 6% p.a. from the date of the application till the date of realization within a period of six weeks from the date of receipt of copy of this order and the same shall be released to the claimants as per the award of the Tribunal.
12. The Registry is directed to draw the award accordingly.
SD/- JUDGE KLY/