IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO 1756 OF 2016(M V) BETWEEN 1. Mrs. Maimuna, W/o Late Ibrahim, Aged about 53 years, R/at Manthoor House, Savanoor Village, Puttur Taluk, Presently R/at Zam Zam, Near Bondel, Mangalore – 574002.
2. Mr. Mohammed Khaleel S/o Late Ibrahim, Aged about 36 years, 3. Mr. Mohammed Ashraf M S/o Late Ibrahim Aged about 35 years, 4. Smt. Zubaida D/o Late Ibrahim Aged about 32 years 5. Mr. Farooq M @ Mohammed Farooq S/o Late Ibrahim, Aged about 27 years, 6. Mr. Mohammed Saifar @ Mohammed Saifulla M., S/o Late Ibrahim Aged about 25 years, 7. Smt. Sajida M D/o Late Ibrahim Aged 23 years, All are R/at Manthoor House, Savanoor Village, Puttur Taluk. ... Appellants (By Sri Guruprasad B.R. Advocate) AND The Managing Director KSRTC, Mangalore Division, Lalbagh, Mangalore-575003. ... Respondent (By Sri N. B. Patil, Advocate) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 12.08.2015 passed in MVC No.1119/2013 on the file of the 1st Additional District Judge and 2nd Additional MACT, Mangalore (DK), 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 Though this appeal is listed for admission, with the consent of learned counsel on both sides, the same is heard and disposed of finally.
2. This appeal is preferred by the appellants against the judgment and award dated 12.08.2015 passed by the Tribunal in MVC No.1119/2013 seeking enhancement of the compensation awarded by the Tribunal.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 21.3.2013, deceased Ibrahim was proceeding on Honda Activa bearing Reg.No.KA.21/Q 0149 from Puttur towards Kaniyuru and when he reached Narimogaru, the driver of KSRTC bus bearing Reg.No.KA.19/F-2571 came in a high speed and in a rash and negligent manner from Kaniyuru side towards Puttur and after coming from the wrong side of the road dashed against Honda Activa and caused accident. As a result of the accident, the deceased sustained injuries and immediately he was shifted to Government Hospital at Puttur where he was declared as brought dead. It is contended that the claimants being the wife and children of the deceased have spent Rs.1,00,000/- towards transportation, burial and obsequies etc., deceased was aged about 55 years at the time of accident and by running arecanut business was earning Rs.15,000/- p.m. He was sole bread earner of the family and the claimants have lost the financial assistance, dependency, love and affection. On all these grounds, the claimants filed the petition seeking compensation.
4. On receipt of notice, respondent – KSRTC appeared through counsel and filed written statement contending that the petition is false, frivolous and not maintainable on law and facts and the accident occurred due to negligence of the deceased alone. Hence, sought for dismissal of the petition.
5. Based upon the pleadings, the Tribunal framed the issues for deciding the claim. Petitioner No.1 was examined as PW.1 and Ex.P1 to P9 were got marked. The driver of the bus was examined as RW.1 and no documents were marked on the side of respondent. After hearing arguments advanced by learned counsel for the claimants and learned counsel for KSRTC, and on evaluation of oral and documentary evidence on record, such as, Ex.P.4, P.M.Report, Ex.P.5, MVI report, Ex.P.7, Inquest report and Ex.P8, Spot sketch, the Tribunal awarded compensation of Rs.6,14,000/- and deducted the ex-gratia of Rs.50,000/- paid by the respondent in that amount and ordered the respondent to pay compensation of Rs.5,64,000/- with costs and interest @ 6% p.a. from the date of petition till its deposit. Being not satisfied with the compensation awarded by the Tribunal, the appellants/claimants have preferred this appeal.
6. Heard learned counsel for the appellants and learned counsel respondent – KSRTC and perused the records.
7. Learned counsel for the appellants contends that the Tribunal has erred in awarding lower compensation under various heads and it has not properly considered the material produced by the claimants. The learned counsel for the appellants vehemently submitted that the tribunal erred in assessing the income of the injured at Rs.7,000/- p.m. which is inadequate and prays for enhancement of the compensation.
8. Per contra, the learned counsel appearing for the respondent – KSRTC denies that the accident occurred on account of the negligence on the part of the driver of the KSRTC bus and contends that the deceased alone was responsible for the accident as he drove his two wheeler in reckless manner without following the rules of the traffic. He contends that the respondent KSRTC has paid an amount of Rs.50,000/- to the claimants on humanitarian grounds as a matter of policy. Further, he contends that the tribunal, on appreciation of the evidence/material on record has rightly assessed the income of the deceased and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
9. In the context of the contention taken by the learned counsel for the appellants as well as respondent and on careful evaluation of the material on record, the Tribunal held that due to the rash and negligent driving of the driver of the KSRTC bus, the accident occurred and deceased succumbed to the injuries sustained, as a result of the accident. It is seen that the claimants being wife and children of the deceased are the dependents of the deceased who was aged 55 years at the time of the accident and prior to his death, he was doing arecanut business and was earning Rs.15,000/- pm. But the Tribunal after considering the documentary evidence on record held that the deceased was aged 58 years and rightly applied multiplier of ‘9’. But having regard to the avocation of the deceased, the income assessed by the Tribunal at Rs.7,000/- requires intervention and income is required to be taken at Rs.8,000/-. Accordingly, the compensation under the head ‘loss of dependency’ works out to Rs.8000 x 2/3 x 12 x 9 = Rs.5,76,000/- as against Rs.5,04,000/- awarded by the Tribunal. The enhanced compensation under this head would be Rs.72,000/-
10. In so far as future prospects which is required to be considered keeping in view the ratio of reliance placed in the decision of Apex Court in National Insurance Company Ltd. vs. Pranay Sethi and others reported in AIR 2017 SC 5157, the compensation under the head loss of future prospects works to Rs.57,600/- (Rs.576,000 x 10%). However, the compensation awarded by the tribunal under other heads is just and reasonable and does not calls for interference. Thus, in all, the claimants are entitled to an additional compensation of Rs.1,29,600/-.
Accordingly, the appeal is allowed in part. In modification of the impugned judgment and award dated 12.08.2015 passed by the Tribunal in MVC No.1119/2013 the compensation payable to the claimants is enhanced from Rs.5,64,000/- to Rs. 6,93,600/-. The claimants are entitled for enhanced compensation of Rs.1,29,600/- with interest @ 6% p.a. The Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE DKB