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 MISCELLANEOUS FIRST APPEAL NO.7401 OF 2016 (MV) BETWEEN:
LEELA W/O LINGEGOWDA AGED ABOUT 41 YEARS, R/AT ATHTHAHALLI T.NARASIPURA TALUK C/O RAJU, HANURU KOLLEGALA TALUK CHAMARAJANAGAR DISTRICT PIN : 571 303 ... APPELLANT (BY SRI.SANATH KUMARA K M, ADV.) AND:
1. RAMACHANDRA C MAJOR R/AT NO.27, NAGASHETTY VALAI VILLAGE, KOGGILAHALLI POST, BANGALORE PIN – 560 078 2. MUTHURAJU H T S/O THAMMAIAH MAJOR NO.177/2, 4TH CROSS, CAUVERY MAIN ROAD, RAGHAVENDRA NAGARA MYSORE, PIN-570 034 3. THE DIVISIONAL MANAGER IFFCO-TOKIO GENERAL INSURANCE CO. LTD., NO.846, NEW KANTHARAJ URS ROAD ABOVE SRI.BAKARY AKSHAY BANDAR, KUVEMPUNAGAR MYSORE PIN – 570 012 ... RESPONDENTS (BY SRI.S.A.SATHYAJIT, ADV. FOR R2; SRI.H.N.KESHAVA PRASHANTH, ADV. FOR R3;
NOTICE TO R1 IS DISPENSED WITH V/O DTD: 28.03.2019) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:26.12.2015 PASSED IN MVC NO.261/2011 ON THE FILE OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE, MEMBER OF MACT, CHAMARAJANAGARA, SITTING AT KOLLEGALA, 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:
J U D G M E N T There is a delay of 164 days in filing the appeal. IA.I of 2016 is filed seeking condonation of delay. For the reasons stated in the affidavit, IA.I of 2016 allowed. Delay of 164 days caused in filing the appeal is condoned. The learned counsel for the appellant has filed memo seeking to dispense notice to respondent No.1. Memo is taken in record. Notice to respondent No.1 is dispensed with.
2. For the death of their son in the road traffic accident on 13th September 2011, the parents made claim petition before the Additional District and Sessions Judge and Member, Motor Accident Claims Tribunal, Chamarajanagara. The Tribunal, by its judgment and award dated 26th December 2015 passed in MVC No.261 of 2011 awarded compensation of Rs.7,28,000/-. Being not satisfied the mother of the deceased, has made this appeal seeking enhancement of the compensation. It is stated that the husband of the appellant (father of the deceased) has also died and he is not made a party in this appeal. Hence, the mother who was the first petitioner is the legal representative of the petitioner No.2 in the claim petition.
3. The learned counsel for the appellant submits that the Tribunal has committed an error in not awarding just compensation. He submits that the Tribunal has erred in assessing the income of the deceased at Rs.4,000/- per month though it is claimed that the deceased was earning Rs.9,000/- per month by working as cleaner and delivery boy in Max Pickup Goods Van. He also submits that the only Rs.50,000/- is awarded towards love and affection which is also on the lower side. Hence, he submits that the appeal be allowed and the compensation be enhanced suitably.
4. Per contra, the learned counsel appearing for the respondent-insurer submits to dismiss the appeal. He submits that the compensation awarded by the Tribunal is based on the documentary and oral evidence produced before it and hence, there is no scope for interference in this appeal.
5. Heard the learned counsel for the parties. The accident and death of the son of the appellant in the road traffic accident is not in dispute. There is some force in the submission of the learned counsel for the appellant. When the income of the deceased is not proved by any documentary evidence or proof, the court has to take the notional income. The notional income shall be taken based on the factors like year of accident, place of residence, number of dependents, cost of living prevalent then, etc. In the instant case, the accident is of the year 2011. The Tribunal has assessed the income at Rs.6,000/- per annum. It is pertinent to note that even a daily wager would earn Rs.300/- per day to eke his livelihood. If that is taken into consideration, the income per month would be Rs.9,000/-. Since the deceased was a bachelor, if 50% is deducted out of the total income towards his personal expenses, then the income would be Rs.4,500/- per month. Then the calculation would be Rs.4,500/- x 12 x 18 would be Rs.9,72,000/- the same is awarded as against Rs.6,48,000/- awarded by the Tribunal under the head loss of dependency. All put together Rs.40,000/- is awarded under conventional heads against Rs.30,000/- what has been awarded by the Tribunal. The amount of Rs.50,000/- awarded by the Tribunal under the head love and affection is retained. The enhancement would comes to Rs.3,34,000/-. But, it is opined that, instead of awarding amount under each head and interest separately, in my considered opinion, awarding globally a sum of Rs.3,75,000/- would meet the ends of justice. Accordingly, a global compensation of Rs.3,75,000/- is awarded in addition to what has been awarded by the Tribunal.
Appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn