IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.5213/2015 [MV] BETWEEN:
1. SMT LALITHA NAYAK W/O LATE GANESH NAYAK AGED 43 YEARS 2. JAYARAJ S/O LATE. GANESH NAYAK AGED 21 YEARS 3. LATEESH NAYAK S/O LATE. GANESH NAYAK, AGED 19 YEARS 4. SOUMYA D/O LATE. GANESH NAYAK, AGED 15 YEARS SINCE MINOR REPRESENTED BY MOTHER APPELANT NO.1 SMT. LALITHA NAYAK.
ALL ARE RESIDING AT DOOR NO.25-14-780/1 SOOTERPETE, II CROSS KANKANADY POST MANGALORE TALUK D.K.DISTRICT, PIN-575008.
(BY SRI.RAVISHANKAR SHASTRY G, ADV.) ...APPELLANTS AND:
1. MR. FRANCIS ALWIN D' MELLO S/O ROMAN D' MELLO AGED 37 YEARS R/AT #3/11, KELARAI CHURCH BONDANTHILA POST MANGALORE TALUK D.K.DISTRICT, PIN-575007.
2. NATIONAL INSURANCE CO. LTD., OFFICE AT: RASIK CHAMBERS OPP: CENTRAL MARKET MANGALORE REP. BY ITS BRANCH MANAGER PIN-575001.
3. MR.SACHIN S/O SHESHAPPA AGED ABOUT 44 YEARS R/AT SANNIDI, D NO.3-21-184-1/1 M N TOWN, STUDENTS LANE KAIBATTAL ROAD KADRI, MANGALORE D.K.DISTRICT, PIN-575007.
4. THE ORIENTAL INSURANCE CO. LTD., OFFICE AT: BEAUTY PLAZA BALMATTA ROAD, MANGALORE D.K.DISTRICT REP. BY ITS BRANCH MANAGER.
(BY SMT. NEERAJA KARANTH, ADV. FOR R1 SRI RAVISH BENNI, ADV. FOR R2 R3 & R4 – NOTICE D/W V/O DT:02/09/2016) …RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.03.2015 PASSED IN MVC NO.1007/2013 ON THE FILE OF THE I ADDITIONAL DISTRICT & SESSIONS JUDGE, MACT –II, D.K., MANGALORE, 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 who are the wife and children of one deceased Ganesh Nayak are before this Court in this appeal praying for enhancement of compensation not being satisfied with the quantum of compensation awarded under the judgment and award dated 11.03.2015 passed in MVC No.1007/2013 on the file of MACT, Dakshina Kannada, Mangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of Ganesh Nayak in a Road Traffic Accident. It is stated that on 19.05.2013 when the deceased was proceeding as pillion rider on Honda Activa Scooter bearing Reg.No.KA-19/S-2458, a Mahindra Pickup van bearing Reg.No.19/A.6403 came in a rash, negligent manner and dashed to the Scooter in which the deceased was proceeding as pillion rider. Due to which the deceased sustained grievous injuries and succumbed to the injuries. It is stated that the deceased was aged 50 years as on the date of accident and was working as spray painter, earning Rs.15,600/- per month.
3. On issuance of summons, the respondents 1, 2 and 4 appeared before the Tribunal and filed their individual objections denying the claim petition averments. Respondent No.3 in spite of service of notice, did not appear before the Tribunal and was placed ex-parte. The 2nd respondent – Insurer contended that the claim petition is false, frivolous and denied that the accident in question occurred due to the rash and negligent driving of the offending vehicle. It is also further stated that the liability of the insurer is subjected to terms and conditions, limitations and expectations of policy and validity of the driving licence of the driver of the offending vehicle. Claimant No.1 – the wife of the deceased examined herself as PW.1 and also examined PW.3 – the employer of the deceased apart from marking the documents Exs.P.1 to P.24. The respondent marked the documents Exs.R1 and R2. The Tribunal on appreciating the material on record awarded total compensation of Rs.7,30,000/- with interest at 6% p.a. from the date of petition till the date of realization on the following heads :-
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 respondent No.1 and respondent No.2 – Insurance Company. Perused the entire material on record.
5. The learned counsel for the appellants would submit that the compensation awarded by the Tribunal for the death of one Ganesh Nayak is on the lower side. It is stated that the claimant was working as spray painter and was earning Rs.15,600/- per month. It is his submission that PW.3 – the employer was examined and also placed on record Ex.P.12 – the Salary Certificate, Exs.P21 and 22 – the Income Tax Returns of the employer to establish that the deceased was earning Rs.15,600/- per month, but the Tribunal erroneously assessed the income of the deceased at Rs.7,500/- per month, which needs to be enhanced. Further the learned counsel for the appellants submit that the Tribunal failed to award any compensation on the head of future prospects, which the claimants would be entitled to at 10% of the assessed income. The learned counsel for the appellants further submitted that there are four claimants, who were depending on the income of the deceased. The Tribunal ought to have deducted 1/4th towards personal expenses, but erroneously deducted 1/3rd of the income of the deceased. As there are four claimants i.e., the wife and three children of the deceased, it would be appropriate to deduct 1/4th towards personal expenses. Learned counsel for the appellants relied upon the decision of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS, reported in 2018 ACJ 2782 and submits that the claimants 3 and 4 would be entitled to Rs.40,000/- each on the head of parental consortium, thus prays for enhancement of compensation.
6. Per contra, the learned counsel for the 2nd respondent – Insurer would submit that the Tribunal awarded just compensation, which requires no interference. It is his submission that the Tribunal has rightly deducted 1/3rd towards personal expenses of the deceased. Claimant No.2 is aged about 19 years and he could not be considered as dependant on the income of the deceased. Therefore, he submits that deduction of 1/3rd towards personal expenses of the deceased is just and proper. Thus prays for dismissal of the appeal.
7. On hearing the learned counsels for the parties and on perusal of the material on record, the points that arise for consideration is as to “a. Whether the income assessed by the Tribunal at Rs.7,500/- is just and proper ?
b. Whether the claimant would be entitled for adding 10% towards future prospects ?
c. Whether the Tribunal is justified in deducting 1/3rd towards personal expenses of the deceased ?
d. Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?”
Answer to the above points (a and c) is in the negative, points (b and d) is in the affirmative for the following reasons:
The occurrence of the accident on 19.05.2013 involving Honda Activa Scooter bearing Reg.No.KA-19/ S-2458 and Mahindra pick up van bearing Reg.No.KA- 19 /A-6403 and the accidental death of Ganesh Nayak is not in dispute in this appeal. The claimants are in appeal seeking enhancement of compensation. The claimants state that the deceased was working as spray painter and was earning Rs.15,600/- per month. In support of their claim PW.3 – the employer of the deceased was examined. Further the claimants also placed on record Ex.P.12 – the Salary certificate. Exs.P.21 and 22 are the income tax returns of PW.3 – the employer. Even though the salary certificate indicates that the employer was paying Rs.15,600/- per month to the deceased, no material was placed on record, to establish receipt of Rs.15,600/- per month by the deceased. The income tax returns of the employer were produced as Exs.P.21 and 22, which would not indicate the salary paid to the deceased, but would indicate total salary paid to the workers employed by PW.3. There is no material placed on record, how many employees worked with PW.3 – the employer of the deceased. In the absence of any material to indicate, how many workers were working under PW.3 and how much salary was paid to each worker, it may not be possible to arrive at the salary paid to an individual worker. Therefore, the Tribunal assessed the notional income of the claimant at Rs.7,500/- per month. But the same is on the lower side. This Court and Lok Adalath while settling the accident claims of the year 2013 would normally take notional income of Rs.8,000/- per month. In the instant case also it would be appropriate to assess the notional income of the deceased at Rs.8,000/- p.m. The claimants state that the deceased was aged 50 years as on the date of accident. The Tribunal based on the material placed on record has taken the age of the deceased as 51 years based on Exs.P.4 and P.7. If the deceased was aged 51 years, the claimants would be entitled for addition of 10% of the assessed income towards future prospects. The Tribunal deducted 1/3rd of the assessed income towards personal expenses of the deceased, whereas the learned counsel for the appellants contended that there are four claimants who are depending on the income of the deceased and therefore, the Tribunal ought to have deducted ¼th towards personal expenses of the deceased. On the other hand, learned counsel for the respondent contended that the 2nd claimant, who is aged 19 years cannot be considered as a dependant on the income of the deceased. But merely 2nd claimant is aged 19 years it cannot be said that he was not depending on the deceased. The insurer has not cross- examined the 2nd claimant with regard to the dependency nor there is material to indicate that 2nd claimant was either an earning member or employed. As such I am of the view, that the Tribunal committed an error in deducting 1/3rd towards personal expenses, when there were four claimants, who were all depending on the income of the deceased. I am of the view, that the deduction is to be made at 1/4th of the assessed income. Claimant Nos.3 and 4 were minors as on the date of accident. As per the decision of MAGMA GENERAL INSURANCAE COMPANY LIMITED cited supra, claimants 3 and 4 would be entitled for parental consortium at the rate of Rs.40,000/- each. Thus the
8. Accordingly, 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.10,21,200/- as against Rs.7,30,000/- awarded by the Tribunal with interest at the rate of 6% p.a. from the date of petition till the date of realization. Apportionment and deposit of compensation would be as ordered by the Tribunal.
Sd/- JUDGE NG* CT:bms