IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO.11095/2012(MV) BETWEEN:
1. M.S. KANTHARAJU SON OF SHIVARAMEGOWDA AGED ABOUT 38 YEARS 2. YASHWANTH GOWDA M.K. SON OF M.S. KANTHARAJU AGED ABOUT 3 YEARS 3. BANAJA M.K.
DAUGHTER OF M.S. KANTHARAJU AGED ABOUT 1 YEAR SINCE APPELLANT NOS.2 AND 3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN/ FATHER KANTHARAJU ALL ARE RESIDENTS OF MAMBALLI VILLAGE AKKIHEBBALU HOBLI K.R. PET TALUK MANDYA DISTRICT-571 401. ... APPELLANTS (BY SRI. K.M. SANATH KUMARA, ADV.) AND:
1. PURUSHOTHAMA B.M.
SON OF MAHADEVEGOWDA AGED ABOUT 34 YEARS AREBUVANAHALLI VILLAGE BOOKANAKERE HOBLI K.R. PET TALUK MANDYA DISTRICT-571 401.
2. MADEGOWDA SON OF NINGEGOWDA AGED ABOUT 60 YEARS AREBUVANAHALLI VILLAGE BOOKANAKERE HOBLI K.R. PET TALUK MANDYA DISTRICT-571 401.
3. THE DIVISIONAL MANAGER IFFCO TOKIYO GENERAL INSURANCE COMPANY LIIMITED NO.846, NEW KANTHARAJ URS ROAD UPSTAIRS SRI KRISHNA BAKERY NEAR AKSHAY BHANDAR KUVEMPUNAGAR MYSURU-24. ... RESPONDENTS (BY SRI. D.S. SRIDHAR, ADV. FOR R3 R1 AND R2 NOTICE DISPENSED WITH VIDE ORDER DATED 17.08.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 20.06.2012 PASSED IN MVC NO.77/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-2, MEMBER, ADDITIONAL MACT, MYSURU, 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 this matter is listed for admission today, with the consent of learned counsel for both the parties, the matter is taken up for final hearing.
2. This appeal is filed by the claimants questioning the quantum of compensation awarded by the Fast Track Court- II and Additional MACT, Mysuru in MVC No.77/2012 dated 20.6.2012 and seeking enhancement of compensation.
3. The factual aspects of the case are, Deceased is the wife of claimant No.1-appellant No.1 and mother of claimants Nos.2 and 3-appellants Nos.2 and 3 herein. The Court below has awarded a total compensation of Rs.5,07,064/- on all the heads, towards death of deceased Shailaja due to the injuries sustained by her in the accident which occurred on 7.11.2011 due to the rash and negligent driving of the driver of the autorickshaw wherein the left wheel of the auto got burst and it fell upside down. The grievance of the claimants before this Court is that the Court below has taken the income of the deceased only at Rs.3,063/- based on Ex.P12, which is very meager.
4. According to the learned counsel for the appellants, the deceased was not only working as Anganavadi Assistant, but was also doing tailoring work. The job of deceased was only from 9.00 a.m. to 1.00 p.m. Hence, the Court below has committed an error in taking the income of the deceased only at Rs.3,063/-. The deceased was aged about only 33 years, as such, the Tribunal ought to have taken 40% towards loss of future prospects over and above the income of the deceased. The Court below has also awarded very meager amount on other conventional heads, which also requires enhancement. It has awarded only Rs.75,000/- towards medical expenses, in spite of producing medical bills to the tune of Rs.1,22,286/- and hence, it requires interference of this Court.
5. Learned counsel appearing for respondent No.3, in his arguments, contends that based on the documentary evidence Ex.P12, the Court below has taken the income of the deceased and no document is placed with regard to the other avocation of tailoring work undertaken by the deceased. Hence, this Court cannot find fault with the order of the Court below in considering the income of the deceased. Learned counsel also submits that the Court below has considered the medical expenses to the tune of Rs.46,185/- and other expenses towards ambulance charges and purchase of surgical instruments etc., and awarded Rs.75,000/- and hence, claimants are not entitled for additional amount on the head of medical bills.
6. Having heard the arguments of learned counsel for the appellants and also the learned counsel for the respondents, the points that arise for consideration in this appeal are:
(i) Whether the Court below has committed an error in not awarding just and reasonable compensation?
(ii) What order?
7. Point Nos.1 and 2:
On perusal of the material on record, there is no dispute with regard to the accident in question. The only question before this Court is with regard to quantum of compensation. The Court below, while calculating loss of dependency, has taken the income of the deceased at Rs.3,063/- in terms of Ex.P12. The contention of the learned counsel for the appellants is that the job of Anganavadi Assistant was only a part time job and she was paid honourary amount. Apart from that, deceased was also doing tailoring work. But the claimants have not placed any material before the Court with regard to the income of the deceased from the tailoring work. It is a settled law that notional income is to be taken if no material regarding definite income is produced. The notional income of a coolie to be taken at Rs.6500/- per month. The Court below has committed an error in taking the income of the deceased only at Rs.3,063/- and it ought to have taken her income at Rs.6,500/- per month and the same requires interference of this Court. Further, the Court below has rightly applied the multiplier of 16 and deducted 1/3rd towards personal expenses since the first claimant is the husband and not the dependant. However, taking note of the age of the deceased, 40% amount ought to have been added towards loss of future prospects. Since the deceased was working in an unorganized sector, having added the same, it comes to Rs.9100/- per month. After deducting 1/3rd towards personal expenses, it would come to Rs.6,067/-. By applying the appropriate multiplier of 16 (6,067x12x16), it would come to Rs.11,64,864/- towards loss of dependency. Further, medical bills to the tune of Rs.1,28,028/- is produced and the Court below has committed an error in taking into consideration of Rs.46,185/- towards expenses of treatment and by adding other expenses, it has awarded only Rs.75,000/-. On perusal of the records produced before the Court below i.e., bills as well as prescriptions, the medical expenses spent is to the tune of Rs.1,22,286/-. The Court below failed to take note of the bills produced based on the prescriptions, which is marked as Sl.No.48 in Ex.P9. Hence, it is appropriate to consider the entire medical bills to the tune of Rs.1,22,286/- as against Rs.75,000/- awarded by the Tribunal. The Court below while awarding compensation towards conventional heads has awarded only Rs.40,000/-. In view of the recent judgment of the Apex Court in the case of National Insurance Company Ltd., Vs. Pranay Sethi and Ors. reported in AIR 2017 SC 5157, Rs.70,000/- is to be awarded towards conventional heads. Hence, the appellants are entitled for Rs.70,000/- as against Rs.40,000/- awarded by the Tribunal. In view of the discussions made above, I pass the following:
ORDER (i) Appeal is allowed in part.
(ii) The judgment and award of the trial Court dated 20.6.2012 passed in M.V.C.No.77/2012 is modified awarding compensation of Rs.13,57,150/- as against Rs.5,07,064/- awarded by the Tribunal, with interest @ 6% interest from the date of petition till deposit.
bkp Sd/- JUDGE