IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE M.F.A. NO.2694 OF 2018 (MV) BETWEEN:
1. SMT.MUDAMMA W/O. LATE NARASIMHA MURTY @ MURTHY, AGED 37 YEARS 2. MASTER RAJESHA S/O. LATE NARASIMHA MURTY @ MURTHY, AGED 14 YEARS 3. MASTER NARASIMHA RAJU S/O. LATE NARASIMHA MURTY @ MURTHY, AGED 12 YEARS 4. SANJEEVAPPA S/O. LATE NARASIMHA MURTY @ MURTHY, AGED 68 YEARS APPELLANT NO.2 & 3 ARE MINORS, HENCE THEY ARE REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN, THE FIRST APPELLANT VIZ., SMT.MUDAMMA ALL ARE R/AT #65, THRIDALU VILLAGE, VIRAMMANAHALLI, GOWRIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT - 563 125. ... APPELLANTS (BY SRI.K.V.SHYAMAPRASADA, ADV.) AND:
1. DEVA PRASAD S/O. RAJENDRA, MAJOR, #E-77/81, 2ND CROSS, BHUVANESHWARINAGAR, BSK 2ND STAGE, KATRIGUPPE, BENGALURU - 560 076.
2. M/S. NATIONAL INSURANCE CO. LTD., T. P. HUB, SHUBHARAM COMPLEX, M.G. ROAD, BENGALURU - 560 001, REPRESENTED BY ITS MANAGER.
3. MAHADI ALI S/O. NISAR JAN, MAJOR, R/AT ALLIPURA VILLAGE, GOWRIBIDANUR TALUK, CHIKKABALLAPURA DISTRICT - 563 125.
4. M/S.IFFCO-TOKIO GENERAL INSURANCE CO. LTD., "SRI SHANTHI TOWERS", 5TH FLOOR, 141, 3RD MAIN, EAST OF N.G.E.F. LAYOUT, KASTURINAGAR, BENGALURU - 560 043, REPRESENTED BY ITS MANAGER. ... RESPONDENTS (BY SRI.B.A.RAMAKRISHNA, ADV. FOR R2; SRI.E.I.SANMATHI, ADV. FOR R4;
NOTICE TO R1 IS DISPENSED WITH V/O DTD: 28.03.2019) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:04.07.2017 PASSED IN MVC NO.4449/2015 ON THE FILE OF THE XIII ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, (SCCH-15), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T For the death of the breadwinner in the road traffic accident that took place on 09th August, 2015, the wife, children and father of the deceased made claim petition before the Motor Accident Claims Tribunal, Bengaluru seeking compensation. The Tribunal, by its judgment and award dated 04th July, 2017 passed in MVC No.4449 of 2015 awarded compensation of Rs.10,74,000/-. Being not satisfied with the compensation amount, the appellants are before this Court in this appeal, seeking enhancement.
2. The learned counsel for the appellants submits that prior to accident, the deceased was hale and healthy and was working as a cleaner in lorry and was earning an amount of Rs.10,000/- per month. The Tribunal has disbelieved the same and has assessed the income of the deceased at Rs.7,000/- per month which is on the lower side. The learned counsel further submits that the Tribunal has erred in not considering the loss of future prospects. He also submits that the compensation awarded under other heads is also meager and hence submits to suitably enhance the compensation.
3. The learned counsel appearing for the respondent submits that the Tribunal has considered the oral and material evidence placed before it and has awarded just and reasonable compensation. He also submits that the Lorry was parked in the middle of the road and the parking lights were also not on and hence there is no negligence on the part of the driver of the car. Hence, he submits that there is no ground for interference and prays for dismissal of the appeal.
4. Heard the learned counsel for the parties and gone through the judgment and award. The accident is not in dispute and the death of the breadwinner in the accident is also not in dispute. The Tribunal, in order to consider the case of the claimants and to award the compensation, has framed three issues and answered all the issues in the affirmative. The wife of the deceased is examined as PW1 and got marked Exhibits P1 to P11. PW2 is the eyewitness to the accident. He has deposed that the accident occurred due to the rash and negligent driving of the car as also due to the negligent parking of the lorry without giving any indication. This is not rebutted by the respondent-Insurer. Hence, the Tribunal has come to the conclusion that the accident has occurred because of actionable negligence of drivers of both, the lorry and the car. As regards income is concerned, the claimants claim that the deceased was working in lorry as a cleaner and was earning Rs.10,000/- per month. The same is disbelieved by the Tribunal and has assessed the income at Rs.7,000/- per month. In cases where the income is not proved by producing material or documentary evidence, then the courts shall have to take notional income. With relevance to the accident of the year 2015, this court, will normally take the income at Rs.9,000/- per month. As per the judgment of the Hon'ble Supreme Court in the case of NATINOAL INSURANCE COMPAMY LIMITED v. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 25% future prospects is to be added to the income. Accordingly the monthly income would be Rs.11,250/-. Further, the family of the deceased consisted of five members including the deceased. As per the judgment of the Hon'ble Supreme Court in the case of SARLA VARMA v DELHI TRANSPORT CORPORATION LIMITED reported in 2009 ACJ 1298the deduction would be three-forth and not one-fourth. Hence, the compensation under the head loss of dependency would be Rs.11,250/- x 12 x 13 x ¾ comes to Rs.13,16,250/- the same is same is awarded as against Rs.8,19,000/- awarded by the Tribunal. For funeral expenses and obsequies, I am inclined to award Rs.15,000/-. Towards consortium I am inclined to award Rs.40,000/-. Under conventional heads, all put together, an amount of Rs.15,000/- is awarded. Hence, the total enhanced compensation would be Rs.5,67,250/- from which an amount of Rs.2,55,000/- awarded by the Tribunal under other heads is to be deducted. In the result, the enhanced compensation would beRs.3,12,250/-. The same shall carry interest at 6% per annum from the date of petition till the date of realisation. The apportionment of the amount shall be in terms of the award of the Tribunal. Appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn