IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD M.F.A.No.9198 OF 2011(MV) BETWEEN:
1. Leo Daniel D’Silva S/o Late Ignatious D’Silva Aged 53 years 2. Smt. Lilly D’Silva W/o Sri. Leo Daniel D’Silva Aged 53 years 3. Kum. Ashwini Amitha D’Silva D/o Sri. Leo Daniel D’Silva Aged 20 years All are residents of Lilly House Maroor Village and Post Via Moodbidri Mangalore Taluk. … Appellants (By Sri.Pundikai Ishwara Bhat, Advocate) AND:
1. Sri. Darryl Benoy Aranha Major S/o Sri. Jerold Norbert Aranha R/at Door No.1-26 ‘Aranha Villa’ Urpalpady Village Karinge, Kallabettur, Moodbidri Mangalore Taluk.
2. Bajaj Allianz General Insurance Co.Ltd., No.107, 1st Floor, Crystal Arc, Near Hotel Roopa, Balmatta Road Mangalore-575 001, D.K.
Rep. by its Manager.
3. Sri. Praveen Kumar, major S/o Sri.Krishnappa R/at ‘Praveen Nivas’ Near Range Forest Office Moodbidri, Mangalore Taluk.
4. Bajaj Allianz General Insurance Co, Ltd., II Floor, Raj Towers Moodanidamboor Village Near City Bust stand, Udupi Rep. by its Manager. ... Respondents (By Sri.A.N.Krishnaswamy, Advocate, For R2:
Notice to R1,R3 & R4 is dispensed with v/o dated 01.02.2012.) This MFA is filed under 173(1) of MV Act, against the Judgment and Award dated: 08.03.2011 passed in MVC No.281/2008 on the file of the III Additional District Judge, Member MACT,-II D.K. Mangalore partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for hearing, this day, this Court, delivered the following:
J U D G M E N T This appeal is filed by the claimants who are parents and sister of the deceased Amar D’Silva challenging the judgment and award dated 08.03.2011 passed by the Motor Accident Claims Tribunal, Mangalore in MVC No.281/2008 whereby the Tribunal has awarded a compensation of Rs.3,96,000/- with interest at 6% p.a. from the date of petition till the date of deposit.
2. The brief facts of the case are that on 26.09.2007 at about 9.30 p.m. in front of Marigudi in Pranthya Village on Moodbidri – Venoor road within the limits of Moodbidri police station, deceased was riding the motor cycle bearing registration No.KA-19/R-435, at that time, another motor cycle bearing registration No.KA-19/W-570 came in a high speed, rashly and negligently from Moodabidri side and dashed against the deceased, as a result of which the deceased fell into a nearby gutter and sustained grievous injuries. He succumbed to injuries on the way of the hospital. Afterwards the claimants have filed the claim petition before the MACT, Mangalore in MVC No.281/2008.
3. To establish their case, claimants have examined two witnesses and got marked 14 documents. On the other hand, the Insurance Company has not examined any witness but got marked 3 documents. On appreciation of the oral and documentary evidence, the Tribunal has granted a compensation of Rs.3,96,000/- with interest at 6% p.a. from the date of petition till the date of realization. Being not satisfied with the quantum of compensation, claimants have filed this appeal.
4. Sri Pundikai Ishwara Bhat, learned counsel for the appellants submits that as on the date of the accident the deceased was aged about 23 years and was working as Air Condition Technician, earning Rs.5,280/- per month. To establish their claim, claimants have produced the salary certificate as per Ex.P11 and they have also examined the author of the document i.e., the owner of the Company. Inspite of that, the Tribunal has taken the notional income of Rs.4,500/- per month.
5. Secondly, the learned counsel contended that as per the judgment of the Hon’ble Supreme Court in NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, the Tribunal has not considered the loss of future prospects.
6. Lastly, he contended that as per the judgment of the Hon’ble Supreme Court in PRANAY SETHI (supra), a sum of Rs.70,000/- has to be awarded on the conventional heads. But the Tribunal has awarded a lesser compensation on the conventional heads. On these grounds he sought for enhancement of compensation.
7. Per contra, Sri A.N.Krishnaswamy, learned counsel for the respondent – Insurance Company submits that in Ex.P10 the statement of the brother of the deceased was recorded. He has stated that deceased was working in Mallikarjunrao Power Plant. But the owner of the company has not been examined. Therefore, the Tribunal has rightly taken the notional income of Rs.4,500/-.
8. He further submitted that the Tribunal has granted just compensation under the conventional heads and it does not require any enhancement.
9. Heard learned counsel for the parties and perused the records.
10. It is not in dispute that the deceased Amar D’Silva has died due to the accident that occurred on 26.09.2007. As on the date of the accident he was aged about 23 years. He was working as Air Condition Technician. To establish the income of the deceased claimants have produced Ex.P11 salary certificate which is issued by Veera Maurthi Engineering Company. According to that the deceased was earning a salary of Rs.5,280/-. The appellants have also examined the author of the document Ex.P11, as PW2. But there is a variation in the statement of the brother of the deceased as per Ex.P10 and the salary certificate produced as per Ex.P11. Therefore, this Court is of the opinion that the notional monthly income of Rs.5,000/- can be taken. In view of PRANAY SETHI’s case (supra), for the age-group of below 40 years, 40% has to be added as future prospects. Accordingly, loss of dependency is recalculated as under:
Monthly income - 5,000/-
Add: 40% towards future prospects - 2,000/-
Total - 7,000/-
Less: ½ towards personal expenses - 3,500/-
Actual income - 3,500/-
Multiplier - 18 Loss of dependency 3,500 x 12 x 18 - 7,56,000/-
11. In respect of conventional heads, as per PRANAY SETHI (supra), the Tribunal has awarded Rs.5,000/- towards transportation of dead body and Rs.10,000/- towards cremation and other obsequies ceremonies. Totally, the Tribunal has rightly awarded Rs.15,000/- under the head ‘’funeral expenses’. But the Tribunal has not awarded any compensation under the head ‘loss of estate’. Hence, Rs.10,000/- is awarded under the said head. The compensation of Rs.30,000/- awarded by the Tribunal under the head ‘loss of love and affection’ shall not be disturbed.
12. For the reasons stated above, the appeal filed by the claimants is hereby allowed in part. The award, dated 08.03.2011, stands modified as under:
13. The Insurance Company is directed to deposit the enhanced compensation amount along with interest @ 6% per annum from the date of filing of the claim petition, till the date of realization, within a period of three weeks from the date of receipt of a copy of this judgment. The amount so deposited by the Insurance Company shall be disbursed to the claimants as per the apportionment made by the Tribunal, after due verification of their identity.
Sd/- JUDGE Cm/-