IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD MFA No.915/2016 (MVC) BETWEEN:
SMT MANJULA W/O ASHWATHNARAYANA @ DUNNASANDRA ASHWATH, AGED ABOUT 38 YEARS, SINCE SHE IS DEAD BY HER LRS, 1. KUM. CHAITHRA, D/O ASHWATHNARAYANA @ DUNNASANDRA ASHWATH, AGED ABOUT 21 YEARS,.
2. KUM. RAMYA D/O ASHWATHNARAYANA @ DUNNASANDRA ASHWATH AGEDA BOUT 18 YEARS, 3. SRI PATTANDURAPPA @ DHURAPPA AGED ABOUT 62 YEARS,.
4. SMT AMMAYYAMMA W/O PATTANDURAPPA @ DHURAPPA, AGED ABOUT 58 YEARS, ALL ARE R/AT DODDADUNNASANDRA VILLAGE, ANUGONDANAHALLI HOBLI, HOSKOTE TALUK, BENGALURU RURAL DISTRICT. (BY SRI. SHRIPAD V SHASTRI, ADV.) AND 1. SRI K S VENKATESHAN (MAJOR IN AGE) S/O SUKKA GOUNDER, R/AT NO.1/349, KUTHIRAKKAL MEDU, MANICKAMPALYAM, BHAVANI TALUK, ERODE DISTRICT.
... APPELLANTS 2. THE LEGAL MANAGER M/S. RELIANCE GENERAL INSURANCE CO.LTD., CENTENARY BUILDINGS, M.G.ROAD, BANGALORE.
... RESPONDENTS (BY SRI. ASHOK N PATIL, ADV. FOR R2 NOTICE TO R1 DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:26.09.2015 PASSED IN MVC NO.248/13 ON THE FILE OF THE 8TH ADDITIONAL DISTRICT & SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellant challenging the judgment and award dated 26.9.2015 passed by the Court of IX Addl. District and Sessions Judge and Member, MACT, Bengaluru Rural District in MVC 248/2013.
2. Brief facts of the case:
On 30.4.2012 at about 11.00 a.m., when the deceased Ashwathnarayana was riding motor cycle bearing Registration No. KA-05-EH-1874 on Hosakote- Chikkathirupathi road and when he reached in front of Navya school, a lorry bearing Registration No.TN-38- AM-3738 came in a rash and negligent manner and caused accident. As a result, the deceased sustained grievous injuries and died on the spot. Hence, the wife, two children and parents of the deceased filed the claim petition before the Tribunal. In order to support their case, wife and daughter of the deceased have been examined as PWs-1 and 2 respectively and submitted 24 documents. PW-1, wife of the deceased died during the pendency of the claim petition. On the other hand, the Insurance Company neither examined any witnesses nor produced any documents. After appreciation of the evidence, the Tribunal granted compensation of Rs.11,30,000/- with interest at 8% p.a. Being aggrieved by the same, the present appeal is filed.
3. The learned counsel for the appellants submits that as per the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], it is held that in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income towards ‘loss of future prospects’ should be the warrant where the deceased was below the age of 40 years. Therefore, since the appellant was 37 years aged at the time of accident, and since he was self-employed, the learned Tribunal ought to have taken 40% of his notional income towards ‘loss of future prospects’, in order to calculate the "loss of dependency". However, the learned Tribunal has failed to do so. Therefore, compensation under the head "loss of dependency" needs to be recalculated. Further, the compensation awarded by the Tribunal under the conventional heads amounting to Rs.50,000/- is on the lower side. As per the decision of Hon’ble Supreme Court in Pranay Sethi’s case, the compensation to be awarded under the conventional heads, namely for ‘loss of estate’ is Rs.15,000/-, for ‘funeral expenses’ is Rs.15,000/- and for ‘loss of consortium’ is Rs.40,000. Therefore, he prays for allowing the appeal.
4. Per contra, the learned counsel for the Insurance Company submits that on appreciation of oral and documentary evidence, the Tribunal has awarded just and reasonable compensation. Therefore, he prays for dismissal of the appeal.
5. Heard the learned counsel for the parties, and perused the records.
6. It is not in dispute that Ashwathnarayana died in the accident occurred on 30.4.2012 due to the rash and negligent driving of the offending vehicle by its driver.
The deceased was aged 37 years at the time of accident. The Tribunal has rightly assessed the income of the deceased at Rs.8,000/- per month; rightly deducted 1/4th of the income of the deceased towards personal expenses and applied multiplier of 15 while calculating the "loss of dependency". But, it has failed to add 40% of the income of the deceased towards ‘loss of future prospects’. As per the decision of the Hon’ble Supreme Court in the case of Pranay Sethi (stated supra), if the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be added towards loss of future prospects where the deceased was below the age of 40 years. Hence, the compensation under the head of "loss of dependency" needs to be recalculated.
7. As per the decision of Pranay Sethi (supra), the claimants are entitled for the compensation of Rs.15,000/- under the category ‘loss of estate’ and Rs.15,000/- under the category ‘funeral expenses’. Since, the wife of the deceased died during the pendency of the claim petition, no compensation is awarded under the head "loss of consortium".
8. Considering that the children of the deceased have lost the love, care and protection of their father at a tender age, the compensation of Rs.20,000/- awarded by the learned Tribunal under the category ‘loss of love and affection’ is on the lower side. Therefore, the same is enhanced to Rs.60,000/- at the rate of Rs.30,000/- each to claimant Nos.2 and 3.
9. For the reasons stated above, this appeal is partly allowed. The judgment and award dated 26.9.2015 passed by the Court of IX Addl. District and Sessions Judge and Member, MACT, Bengaluru Rural District in MVC 248/2013, stands modified. The claimants are entitled to receive the following compensation:
10. The Insurance Company is directed to deposit the entire compensation amount with interest @ 8% per annum from the date of filing of the claim petition, till the date of realization, within a period of four weeks from the date of receipt of the certified copy of this judgment.
The apportionment of the amount shall be made in accordance with the directions of the learned Tribunal.
Sd/- JUDGE DM