IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 3307 OF 2017 (MV) BETWEEN 1. SMT. MANGALA W/O KRISHNAPPA AGED ABOUT 49 YEARS 2. KRISHNAPPA S/O LATE RANGAPPA AGED ABOUT 58 YEARS ALL ARE R/O BHANDRAHALLI KAVALGUNDI POST BHADRAVATHI TALUK SHIVAMOGGA DISTRICT-577201.
... APPELLANTS (BY SRI. M. V. MAHESWARAPPA - ADVOCATE) AND 1. MUTHU KUMARAN S/O MURUGAN. G AGED ABOUT 28 YEARS R/O C-09, NEW COLONY BHADRAVATHI TALUK SHIVAMOGGA DISTRICT-577201.
2. THE MANAGER ICICI LOMBARD GENERAL INSURANCE CO., LTD., ICICI LOMBARD HOUSE 414 VEER SAARKAR MARG NEAR SIDDHI VINAYAK TEMPLE PRABHADEVI MUMBAI-400 025.
... RESPONDENTS (BY SRI. H. N. KESHAVA PRASHANTH – ADV., FOR R-2 NOTICE TO R-1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.06.2016 PASSED IN MVC NO. 542/2015 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIMOGA, SITTING AT BHADRAVATHI AND ADDITIONAL MACT (IV), 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 matter is listed for admission, with the consent of learned counsel on both sides, the same is taken up for final disposal.
2. This appeal is preferred by the appellants/claimants against the judgment and awarded 22.06.2016 rendered by the Tribunal in MVC No.542/2015 seeking enhancement of compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 10.3.2013 at about 3.30 a.m, the son of petitioners namely K.Manohar along with his friends was traveling in Hyundai GETZ vehicle bearing Reg.No.KA-02-MB-9300 and one Kiran, s/o Balakrishna was driving the said vehicle. While they were going from Tumkur to Bhadravathi, near Harenahalli gate, Gubbi, the said Kiran drove the vehicle in rash and negligent manner and with high speed and dashed against the KSRTC bus bearing Reg.No.KA-19-F-2963 which was coming from opposite direction. Due to the said impact, Kiran died at the spot and son of the petitioners sustained grievous injuries. He was shifted to Government Hospital, Tiptur and then to Nimhans Hospital, Bangalore and while taking treatment, he succumbed to injuries. Due to the untimely death of their son, who was mason by profession and earning Rs.12,500/- per month and the petitioners being dependants who were put to untold hardship, filed the claim petition seeking compensation.
4. Respondents appeared through their counsel and second respondent filed objections to the main petition denying the petition averments. Based upon the pleadings, the Tribunal framed the issues. In order to substantiate their case, first petitioner was examined as PW.1 and got marked Exs.P1 to P9. On the other hand, respondents did not placed any evidence but got marked copy of insurance policy as per Ex.R.1. The Tribunal, after hearing arguments of learned counsel for the petitioners as well as learned counsel for the respondents, passed the impugned judgment, awarding compensation of Rs.7,62,500/- with interest @ 6% p.a. from the date of petition till realisation. It is this judgment which is challenged under this appeal, by urging various grounds.
5. Learned counsel for the appellants while taking me through the evidence of PW.1, contends that the judgment and award passed by the Tribunal is contrary to law, evidence and materials available on record. The Tribunal has erred in taking income of the deceased at Rs.5,000/-
p.m. which is inadequate and the same needs to be enhanced. The Tribunal has not followed the rulings of the Hon’ble Apex Court while awarding the compensation. The Tribunal has not awarded compensation towards future prospects as per the Apex Court’s decision in Munnalal Jain and also Santoshdevi case. The compensation awarded by the Tribunal under conventional heads is on lower side and the same needs to be enhanced. Further, the multiplier applied by the Tribunal at 17 is improper as per the decision of Apex Court in Sarla verma’s case. On all these grounds, learned counsel for the appellants seeks for enhancement of compensation under the above heads and prays for allowing this appeal.
6. Per contra, learned counsel for the respondent – insurer contends that as on the date of the accident, the driver of the offending vehicle did not possess valid and effective D.L. and the KSRTC bus did not possess valid fitness certificate and permit to ply on the road as on the date of alleged accident. Since there is violation of policy conditions, the respondent is not liable to pay any compensation and the compensation claimed in the petition is exorbitant and excessive. There is no cogent evidence relating to the income of the deceased. Further, it is contended 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 the appeal being devoid of merits, is liable to be dismissed.
7. In the context of the contentions taken by the learned counsel for the appellants as well as learned counsel for the respondent- insurer, it is relevant to state that it is not in dispute that the deceased died due to the accidental injuries sustained in a road traffic accident that occurred on 10.03.2013 at about 3.30 a.m. due to the actionable negligence on the part of driver of Hyundai GETZ car bearing Reg.no.KA-02-MB-9300 near Harenahalli Gate, Gubbi. The Tribunal has considered the evidence of PW.1 and documentary evidence such as Ex.P1 – FIR, Ex.P2- complaint, Ex.P3-spot mahazar, Ex.P4-MV report, Ex.P5- inquest mahazar, Ex.P6-P.M.Report, Ex.P7-charge sheet, Ex.P8-school document and Ex.P9- school transfer certificate and Ex.R1-insurance policy. The Tribunal on consideration of oral and documentary evidence adduced on behalf of the petitioner held that accident occurred due to the rash and negligent driving of the offending car and due to which deceased – Manohar succumbed to the injuries.
8. The Tribunal while assessing the compensation under the head - loss of dependency took the notional income of the deceased at Rs.5,000/- p.m. in the absence of any proof with regard to source of income, and deducted 1/3rd towards personal expenses and by taking multiplier of 17 awarded compensation of Rs.7,22,500/- under this head. But having regard to the avocation of the deceased who was working as a mason and keeping in view the guidelines as well as illustrations as per the Lokadalath chart, the notional income taken by the Tribunal at Rs.5,000/- is on lower side and the same needs to be enhanced to Rs.8,000/- as the year of accident is 2013. In so far as the multiplier is concerned, the Tribunal has taken 17 multiplier. But as per the decision of Hon’ble Apex Court in Sarala Verma vs. United India Ins.Co.Ltd in 2009 ACJ 1298, for the age of 21 years, the proper multiplier applicable is 18. Further, as per the law laid down by the Apex Court in National Insurance Co.Ltd vs. Pranay Sethi reported in AIR 2017 SC 5157, 40% of future prospects has to be added to the income and 50% has to be deducted towards personal expenses. Accordingly, the compensation under the head - loss of dependency is re- worked out as under:
9. Further, the Tribunal has awarded Rs.10,000/- towards funeral expenses and Rs.20,000/- towards loss of love and affection and Rs.10,000/- towards loss of estate. In all Rs.40,000/- is awarded under conventional heads. However, keeping in view the ratio of reliance in Pranay Sethi’s case as stated supra, as the deceased being Bachelor, the compensation under conventional heads shall not be more than Rs.30,000/-. Accordingly, the compensation under the conventional heads is scaled down to Rs.30,000/- from Rs.40,000/- awarded by the Tribunal.
10. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Compensation awarded under the heads By MACT By this Court Loss of dependency 7,22,500 12,09,600 Transportation of dead body and funeral expenses 10,000
Thus, in all the claimants are entitled to total compensation of Rs.12,39,600/- as against Rs.7,62,500/- awarded by the Tribunal and the enhanced compensation would be Rs.4,77,100/-
In view of the above findings, I proceed to pass the following:
ORDER The appeal is allowed in part. The impugned judgment and award dated 22.06.2016 passed by the Tribunal in MVC No.542/2015 is hereby modified. The appellants/claimants are entitled for enhanced compensation of Rs.4,77,100/- with interest @ 6% p.a. from the date of petition till realisation.
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 released 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.
Office to draw the decree accordingly.
SD/- JUDGE DKB