IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO.1433 OF 2015 (MV) BETWEEN 1. Smt. Narasamma W/o Late. Narasimhaiah Aged about 32 Years 2. Kumari. N. Nagamma D/o. Late. Narasimhaiah Aged about 14 Years 3. Kumari. N. Nagamani D/o. Late. Narasimhaiah Aged about 12 Years Appellants 2 And 3 are minors Represented by their Mother-cum- Natural Guardian Appellant No.1 Narasamma.
All are R/at. Gundla halli village Nyamagondlu post D. Palya, Gowri bidanur Taluk Chickballapur District.
... Appellants (By Smt. Suguna R. Reddy, Adv.) AND 1. Managing Director Karnataka State Road Transport Corporation Bangalore Central Division Shanthinagar, K H Road Bangalore – 560 002.
2. Deputy Controller-cum- Divisional Controller Karnataka State Road Transport Corporation Chickballapur Division Chickballapur - 562 101.
3. Sri. Gangadharappa @ Muga S/o Narasimhappa Major in Age R/at. Gundlahalli village D. Palya Hobli Namagondlu Post Gowribidanur Taluk Chickballapur District-562 101.
... Respondents (By Sri. K. Nagaraja, Adv. for R1 and R2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 05.11.2014 passed in MVC No.2465/2012 on the file of the Judge, Court of Small Causes and XXVI ACMM, MACT, Bangalore, 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 Heard the learned counsel for the appellants – claimants and the learned counsel for respondents no.1 & 2 and perused the records.
2. Though the matter is listed for admission, with consent of learned counsel for both parties, the same is taken up for final disposal.
3. The legal heirs, who are the dependents of the deceased Narasimhaiah @ Narasimhappa have preferred this appeal, being not satisfied with the quantum of compensation awarded in the impugned judgment dated 5.11.2014 passed by the Judge, Court of Small Causes & XXVI ACMM, Bangalore in MVC No.2465/2012 seeking enhancement of compensation.
4. The factual matrix is that on 17.01.2012 when the deceased, a coolie along with other coolies were travelling in an auto rickshaw bearing Reg.No.KA-40- 4435, near Edga Maidan on Gangasandra-Gowribidanur Road on the outskirts of Gowribidanur, a KSRTC bus bearing Reg.No.KA-40-F-58 had come in a rash and negligent manner and dashed the said auto, due to which the deceased sustained fatal injuries and died in the hospital. The deceased was working as a coolie for cutting trees and for loading and unloading and was earning Rs.350/- to Rs.400/- per day. In view of his death, the claimants / appellants having lost their bread-winner of the family, they filed a claim petition before the court below seeking for award of compensation.
5. After service of notice, Respondent No.1 appeared before Tribunal and filed his written statement. Whereas Respondents 2 and 3 failed to appear and were placed exparte. Respondent No.1 – KSRTC in their written statement had categorically denied all the petition averments including the accident, manner in which the accident took place and rash and negligent driving of the KSRTC bus as the cause for the accident. They had also denied the avocation and the income of the deceased. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending KSRTC bus and its insurance coverage and the same has remained unchallenged. 6.
6. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the offending vehicle. Taking the income of the deceased at Rs.6,000/- per month and deducting 1/3rd of the income towards his personal expenses and since the deceased was aged 35 years, applied the multiplier 16 and awarded total compensation of Rs.8,64,000/- with interest at 6% per annum from the date of petition till the date of realization. It is this judgment which is under challenge in this appeal seeking enhancement of compensation.
7. The learned counsel for the appellants / claimants vehemently submitted that the deceased as aged 35 years at the time of the accident and was earning Rs.350/- to Rs.400/- per day working as a coolie. Hence, the Tribunal was not right in taking his income at Rs.200/- per day to arrive at the compensation. Even as per the settled norms according to the Lok Adalath chart, notional income of the deceased ought to have been taken at Rs.7,000/- per month in order to arrive at the compensation towards ‘Loss of dependency’. Further, the Tribunal was not justified in not awarding future prospects. The deceased being aged 35 years, the Tribunal ought to have added 40% of the income towards future prospects.
8. Further the Tribunal has awarded compensation of Rs.16,000/- towards funeral expenses & obsequies ceremony, Rs.15,000/- towards loss of consortium, Rs.15,000/- towards loss of love and affection and Rs.10,000/- towards loss of estate. In view of ratio of reliance in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in AIR 2017 SC 5157 the compensation under conventional heads should not be below than Rs.70,000/- nor should not exceed Rs.70,000/-. Since only Rs.56,000/- in total has been awarded by the Tribunal towards conventional heads, the learned counsel submits that the same requires to be enhanced by a sum of Rs.14,000/- so as to be in line with the said judgment. Thus, the learned counsel for the appellants pray that the compensation under the above said heads may be enhanced suitably.
9. Per contra, the learned counsel appearing for the insurer submitted that the tribunal, on appreciation of the evidence 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.
10. On a careful evaluation of the material on record, it is seen that the claimants being wife and minor children of the deceased are the dependents of the deceased who was aged 35 years and prior to his death, he was working as a coolie and earning a sum of Rs.350/- to Rs.400/- per day working as a coolie. Under such circumstances, the Tribunal having regard to the fact that the accident was of the year 2012, ought to have taken the notional income of the deceased at Rs.7,000/- to determine the compensation towards ‘Loss of dependency’. Hence, I hereby take the notional income of the deceased at Rs.7,000/- per month. Further, the Tribunal has erred in not adding any amount towards ‘future prospects’. Though the deceased was not a person having a permanent income, having regard to the age of the deceased and due to the fact that he was working hard by doing coolie work to support his family and having regard to the fact that they belonged to economically weaker section of the society, the Tribunal ought to have added 40% of his income towards ‘future prospects’ which computing the compensation towards ‘Loss of dependency’.
Hence, taking the income of the deceased at Rs.7,000/- per month and adding 40% towards ‘future prospects’, the income of the deceased is worked out to Rs.9,800/- (7,000 + 2,800). Then deducting one-third towards his personal expenses, the notional income comes to Rs.6,533.34/-. Taking the notional income at Rs.6533.34/- per month and applying ‘16’ as the multiplier, the compensation towards ‘Loss of dependency’ comes to Rs.12,54,400/- (6533.34 x 12 x 16). Further in view of the decision in National Insurance Company Ltd. vs. Pranay Sethi reported in AIR 2017 SC 5157 it is settled that compensation under conventional heads put together should not exceed Rs.70,000/- or should not be below Rs.70,000/-. In the case on hand, the Tribunal has awarded compensation of Rs.16,000/- towards funeral expenses & obsequies ceremony, Rs.15,000/- towards loss of consortium, Rs.15,000/- towards loss of love and affection and Rs.10,000/- towards loss of estate. Thus, the Tribunal had awarded Rs.56,000/- totally towards all the conventional heads put together. Hence, in view of the said decision, compensation under the said head is enhanced by another sum of Rs.14,000/-. However, the compensation awarded by the tribunal under other heads is just and reasonable and does not call for interference.
11. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars Compensation awarded by MACT Compensation enhanced by this Court Total Loss of dependency Funeral expenses & obsequies ceremony Loss of consortium Loss of love and affection 8,64,000 3,90,400 12,54,400 16,000 15,000 14,000 70,000 15,000 Loss of estate 10,000 Total 9,20,000 4,04,400 13,24,400 Thus, in all, the claimants are entitled to total compensation of Rs.13,24,400/- as against Rs.9,20,000/- awarded by the tribunal.
Accordingly, I pass the following:
ORDER The appeal is allowed in part. In modification of the impugned judgment and award dated 5.11.2014 passed by the XXVI ACMM (SCCH-09), Bangalore in MVC No.2465/2012. the compensation payable to the claimants / appellants is enhanced from Rs.9,20,000/- to Rs.13,24,400/-. The enhanced compensation would come to Rs.4,04,400/-. The Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within six weeks from the date of receipt of a certified 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 KS