IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.1966 OF 2014 (MV) BETWEEN:
1. Smt. Neela W/o. Late Vajra @ Vajrappa Aged 26 years 2. Vasanth Kumar S/o. Late Vajra @ Vajrappa Aged 6 years 3. Smt. Savithramma W/o. Munivenkatappa @ Vajrappa Aged about 52 years 2nd Appellant since minor represented by 1st petitioner/Mother Smt. Neela as guardian All are residing at Talaghattapura Uttarahalli Hobli Bengaluru South Taluk ... Appellants (By Sri. Babu M., Advocate) AND:
1. The Managing Director K.S.R.T.C., Shanthinagar K.H. Road Bengaluru – 560 027 2. The Manager M/s. Oriental Insurance Co. Ltd. No.663, 1st Floor 1st Main Defence Colony Indira Nagar, 1st Stage Bengaluru – 560 038 ... Respondents (By Smt. Shwetha Anand, Advocate for R1; Sri. K.P. Thrimurthy, Advocate for R2) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 03.12.2013 passed in MVC No.3609/2011 on the file of the XVI Additional Judge, 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 The claimants are before this Court in this appeal, seeking enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 03.12.2013 in MVC.No.3609/2011 on the file of XVI Additional Judge, MACT, Bengaluru.
2. The claimants are wife, son and mother of the deceased-Vajra @ Vajrappa. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of the deceased-Vajra @ Vajrappa in a road traffic accident. It is stated that on 28.05.2011, when the deceased was riding motor cycle bearing Registration No.KA-05-HL-1567, bus bearing Registration No.KA-42-F-069 came in a rash and negligent manner and dashed against the motor cycle driven by the deceased. Due to which, the deceased fell down and sustained multiple injuries and died on the spot. It is stated that the deceased was working as a driver and was earning a monthly salary of Rs.11,900/- per month. The deceased was aged about 36 years as on the date of accident.
3. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed their statement of objections. Respondent No.2-Insurance Company contended that the driver of both the vehicles was not possessing valid and effective driving licence and denied the claim averments. It is also contended that the accident took place due to the negligence of the deceased.
4. The first claimant examined herself as PW.1 and PW.2 and 3 were examined in support of her case. Documents at Exs.P1 - P13 were marked. The Tribunal on analyzing the material on record, awarded total compensation of Rs.5,75,000/- with 6%p.a., interest on the following heads:-
1. Loss of income/dependency (3,000/- X 12 X 15) 2. Loss of consortium (to be paid to the 1st petitioner) Rs.5,40,000-00 10,000-00 3. Loss of love & affection 15,000-00 4. Transportation of dead body & Funeral expenses 10,000-00 TOTAL Rs.5,75,000-00 While determining the above compensation, the Tribunal took into consideration Rs.4,500/- per month as income of the deceased.
5. The claimants not being satisfied with the quantum of compensation are before this Court in this appeal.
6. Heard the learned counsel for the appellants and learned counsel for the respondent No.2-Insurance Company. Perused the lower court records.
7. Learned counsel for the appellants submits that the Tribunal committed an error in taking Rs.4,500/- per month as income of the deceased. discarding the pay slip and salary certificate - Exs.P8 and 9, wherein it is stated that the deceased was earning Rs.11,500/- per month as salary. Learned counsel also submits that no compensation is awarded on the head of ‘future prospects’. The claimants would be entitled for sum of Rs.70,000/- on the ‘conventional head’ and Rs.40,000/- each to the claimant Nos.2 and 3 as held by MAGMA GENERAL INSURANCE CO. LTD vs. NANU RAM reported in 2018 SCC ONLINE SC 1546.
8. Per contra, learned counsel for the respondents would submit that the trial Court has awarded just compensation which needs no interference.
9. On hearing the learned counsel for the parties and on perusal of the records, the only question which arise for consideration is:
“Whether the claimants are entitled for enhanced compensation?”
The answer to the above question is in the affirmative.
10. The accident occurred on 28.05.2011 involving motor cycle bearing Registration No.KA-05- HL-1567, bus bearing Registration No.KA-42-F-069 and the accidental death of Vajra @ vajrappa is not in dispute in this appeal.
11. The Tribunal has taken the income of the deceased at Rs.4,500/- per month discarding Exs.P8 and P9. Ex.P8 is pay slip and Ex.P9 is salary certificate issued by Prakurthi Enterprises, Bengaluru. PW.3 is examined in support of those documents, but PW.3 in his cross-examination, has stated that there is no document for appointment of the deceased-Vajra @ Vajrappa. Further, he stated that the deceased-Vajra @ Vajrappa was working as a daily wager and there was no permanent employment and fixed monthly income. While such being the evidence of PW.3, Exs.P8 and P9 cannot be the basis to determine the income of the deceased-Vajra @ Vajrappa. The income taken by the Tribunal at Rs.4,500/- per month is on the lower side.
12. In the absence of any material to indicate the exact monthly income, the income is to be determined notionally. This Court and Lok-Adalat while determining the compensation in Motor Vehicles Accident cases would take notional income for the accident of the year 2011 at Rs. 6,500/- p.m. to settle the claims. In the instant case also in the absence of material to indicate the exact income, the income of the deceased could be taken at Rs.6,500/- p.m. notionally. The Tribunal has taken the age of the deceased as 36 years. Looking into Ex.P10 – Driving Licence, the same needs no interference.
13. The Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. vs. PRANAY SETHI AND OTHERS reported in (2017)16 SCC 680 has held that if the deceased was self employed or was in receipt of the fixed salary, the claimants would be entitled for addition of 40% of the income towards ‘future prospects’ when deceased is below the age of 40 years. In the present case, the avocation of the deceased was driving and he was aged below 40 years, he was self employed and he would be entitled for adding 40% of his notional income towards ‘future prospects’.
14. The claimant Nos.2 and 3 would be entitled for Rs.40,000/- each towards filial consortium and parental consortium as held by MAGMA INSURANCE case. Thus, the claimants would be entitled for following modified compensation:-
Loss of dependency :: Rs.10,92,060.00 (6500 + 40% -1/3 X 12 X 15) Conventional heads :: Rs. 70,000.00 Parental consortium :: Rs. 40,000.00 Filial consortium :: Rs. 40,000.00 Total Rs. 12,42,060.00 15. Thus, the claimants are entitled for a total compensation of Rs.12,42,060/- as against compensation of Rs.5,75,000/- awarded by the Tribunal with interest at the rate of 6% per annum.
Accordingly, the appeal is allowed in part.
Sd/- JUDGE KG