IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY 2019 PRESENT THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR MISCELLANEOUS FIRST APPEAL NO.2994 OF 2011 (MV) BETWEEN:
NATIONAL INSURANCE CO. LTD., 3RD FLOOR, UNITY BUILDING ANNEXE, 72, MISSION ROAD, BANGALORE NOW REPTD. BY ITS REGIONAL MANAGER, NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, SUBHARAM COMPLEX, 144, M.G.ROAD, BANGALORE - 560 001 ... APPELLANT (BY SRI.A N KRISHNA SWAMY, ADV.) AND:
1. SMT.GIRIJA SANKETHI W/O LATE DINESH SANKETHI NOW AGED ABOUT 41 YEARS 2. BHARGAV SANKETHI S/O LATE DINESH SANKETHI NOW AGED ABOUT 16 YEARS STUDENT, SINCE MINOR REPRESENTED BY HIS NATURAL GUARDIAN/MOTHER THE 1ST RESPONDENT HEREIN 3. M.R.JAYAKRISHNA SANKETHI S/O M V RAGHUPATHAIAH AGED ABOUT 77 YEARS 4. SMT JAYALAKSHMI SANKETHI W/O M.R.JAYAKRISHNA SANKETHI AGED ABOUT 68 YEARS ALL ARE RESIDENTS OF C/O CEETHA INDUSTRIES SATHYAMANGALA, TUMKUR 5. MANJUNATHA M K S/O KEMPEGOWDA NOW AGED ABOUT 43 YEARS NO.154, IV MAIN, 4TH CROSS, SRINIVASANAGAR, BANGALORE – 574 157 6. PANDURANGAPPA S/O M.R.RANGASWAMY AGED ABOUT 45 YEARS RESIDENT OF DASARA BEEDI, BASAVARAJ BUILDING NELAMANGALA TOWN – 571 432 ... RESPONDENTS (BY SRI.K.R.RAMESH, ADV. FOR R1 & R4; R2 IS MINOR REPRESENTED BY R1;
R-3 & R6 ARE SERVED;
NOTICE TO R5 IS HELD SUFFICIENT V/O DATED:11.04.2016) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.11.2010 PASSED IN MVC NO.1163/2008 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE & CJM, TUMKUR, AWARDING A COMPENSATION OF RS.25,71,476/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION WITHIN THREE MONTHS FROM THE DATE OF THIS ORDER.
THIS APPEAL COMING ON FOR HEARING THIS DAY, ACTING CHIEF JUSTICE DELIVERED THE FOLLOWING:
J U D G M E N T The claimants have preferred petition claiming compensation for the death of the bread-winner in the road traffic accident on 18th July 2008. It was the case of the claimants that when the car was being repaired by the deceased on National Highway-4, the offending vehicle-Tata Indica car came in a rash and negligent manner and caused accident resulting in death. The Tribunal awarded compensation of Rs.25,71,476/-. Against the same, this appeal is by the Insurance. The grounds taken by the appellant are, firstly, on negligence and in support of the same, the learned counsel submits that as per the case of the claimants themselves that it was a single lane and the car was stationed in order to attend to the punctured wheel and while doing so the driver of the innova car had not taken any steps for indicating the other vehicles that would pass-by. The person who was doing the job has parked his vehicle in front of the innova car and when he was attending to work, the offending vehicle came and hit the hind side of the innova car and the impact of which the innova vehicle moved front and ran over the person who was attending to repairs.
This itself shows negligence on the part of the deceased and hence the Tribunal has committed an error in rejecting the defence taken to that extent. The second submission is with regard to taking the future prospects. As per the claimants, the deceased was aged 44 and was having a permanent job. Considering the same, the Tribunal has added 30% of the income for awarding compensation under the head loss of dependency as per the judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY v. PRANAY SETHI reported in 2017 SCC ONLINE SC 1270 wherein it is held that the person of the age of 44 years having a permanent job, the future prospects is to be added at 25% and not at 30%. Hence he seeks reduction on the compensation.
2. On the other hand, the learned counsel for the respondent-claimants supports the judgment.
3. Heard the learned counsel for the parties and gone through the reasons assigned by the Tribunal. At paragraph 12 of the judgment, the reasons are given as to why the case of respondent-Insurance has been rejected. That the Innova car was parked on the middle of the road without putting on the parking lights which is the root cause for the accident is the submission of the defence in the claim petition. But the said submission has not been supported by any materials or records. On the other hand, the claimants examined PW2, who in his cross-examination, has stated that two lights on the rear side of the innova car were on and further there was sufficient space by the side of the car. He has admitted that the road at this part is a by-lane road and there was sufficient space for the other vehicle to pass. Hence, the Tribunal rejected the defence taken by the respondent on the ground of negligence. The reasons assigned has been examined in the light of the records placed before us and we are satisfied that the defence taken by the respondent-Insurance has been negatived by the Tribunal by assigning cogent reasons. It is further found that the Insurance has not at all examined any witness or has confronted any documents to substantiate the defence. Accordingly the said submission is to be rejected.
4. The only ground we are inclined to interfere is whether the claimants are entitled for 30% future prospects as taken by the Tribunal. In the light of the judgment of the Hon'ble Supreme Court in the case of PRANAY SETHI (supra), the person of the age of 44 years having a permanent job, the future prospects is to be added at 25% and accordingly the Tribunal has committed an error in adding the future prospects at 30%. Accordingly the compensation under the head loss of dependency is to be modified by adding future prospects at 25%. The calculation would be Rs.2,14,200/- + 25% future prospects comes to Rs.2,67,750/-. If one third is deducted from the same it comes to Rs.1,78,590/-. Hence, Rs.1,78,590/- x 14 comes to Rs.25,00,260/- the same is awarded as against Rs.25,41,476/- awarded by the Tribunal. To that extent the compensation awarded under the head loss of dependency would get reduced. The compensation awarded by the Tribunal under other heads stand confirmed. Appeal is allowed in part. Amount in deposit is directed to be transmitted to the Tribunal.
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ACTING CHIEF JUSTICE Sd/- JUDGE lnn