IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.4248/2014 (MV) BETWEEN:
1. P. KANAKAIAH SHARMA S/O DHARMA RAO, AGED ABOUT 61 YEARS, OCC:TRAFFIC CONTROLLER IN KSRTC, BHADRAVATHI DEPOT.
2. SMT.P.KOKILA SHARMA W/O P.KANAKAIAH SHARMA, AGED ABOUT 52 YEARS, OCC:HOSE WIFE 3. MUKESH S/O P.KANAKAIAH SHARMA, AGED ABOUT 33 YEARS, MEDICAL REPRESENTATIVE ALL ARE RESIDING AT #42/2, 2ND FLOOR, 5TH CROSS, ‘A’ BLOCK, DEVARAJ URS LAYOUT, DAVANAGERE.
(BY SRI.PRASAD B.S., ADV.) AND:
1. ASHOKA S/O NAGA NAIKA, AGED ABOUT 42 YEARS, ... APPELLANTS OCC:DRIVER OF KSRTC BUS, SAGAR KSRTC DEPOT, SAGARA, SHIMOGA DISTRICT-577201.
2. MANAGING DIRECTOR KSRTC SARIGE BHAVAN, BANGALORE, REPT. THROUGH ITS DIVISIONAL CONTROLLER, DAVANAGERE DIVISION, DAVANAGERE-577 001.
3. CHAIRMAN INTERNAL SECURITY FUND, KSRTC, SARIGE BHAVAN, BANGALORE-560 002.
4. THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO.LTD., P.B.ROAD, NEAR ARUNA TALKIES, DAVANAGERE-577 001.
(BY SRI. B PHALAKSHAIAH, ADV. FOR R2 SRI V.NARAYANASWAMY, ADV. FOR R4 R1-NOTICE D/W V/O DT:21.01.2015 R3-SERVED & UNREPRESENTED) ... RESPONDENTS THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:09.01.2013 PASSED IN MVC NO.572/2011 ON THE FILE OF PRL. SENIOR CIVIL JUDGE & MEMBER, MACT-IV, DAVANGERE, 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 Appellant/Claimant is before this Court, not being satisfied with the quantum of compensation awarded under the judgment and award dated 09.01.2013 in MVC No. 572/2011 on the file of the Principal Senior Civil Judge and Member, MACT-IV, Davanagere (hereinafter referred to as 'the Tribunal' for short).
2. The claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation towards accidental death of Manoj son of claimants 1 and 2. It is stated that on 16.04.2011, when the deceased was traveling as a passenger in a KSRTC bus bearing registration No.KA-17/F-1224, the driver of the bus drove the same in a rash and negligent manner and dashed a stationary lorry. The deceased suffered head injury and he succumbed to the said injuries. It is stated that the deceased was aged about 31 years as on the date of accident and was earning salary of Rs.14,000/- p.m. by working as a medical representative.
3. On service of notice, respondents No.2 to 4 appeared before the Tribunal. Respondents No.2 and 3 filed their written statement denying the claim petition averments. Respondent No.4/Insurance Company filed its objections denying the petition averments and stated that the driver of the offending vehicle did not possess the valid and effective driving license and prayed for dismissal of the claim petition.
4. Claimant No.1, father of deceased got examined himself as P.W.1 and got marked the documents as Ex.P1 to Ex.P7. Respondents 2 and 3 examined respondent No.1 as R.W.1 and Respondent No.4 got marked Ex.R1-Insurance Policy.
5. The Tribunal, on appreciating the material on record under the impugned judgment and award awarded total compensation of Rs.4,15,000/- taking into consideration monthly income of the deceased at Rs.5,000/- and deducting 50% towards his personal expenses . The claimants not being satisfied with the quantum of compensation are before this Court in this appeal seeking enhancement of compensation.
6. Heard the learned counsel for the appellants and learned counsel for the respondents. Perused the Lower Court Records.
7. Learned counsel for the appellants would submit that the Tribunal committed an error in taking only Rs.5,000/- as monthly income of the deceased, whereas he was earning a sum of Rs.14,000/- p.m. by working as medical representative. He submits that the claimants had produced Ex.P7 salary certificate issued by Nandan Pharma to indicate that the deceased was earning salary of Rs.14,000/- p.m. Learned counsel for the appellants further submits that the Tribunal failed to award any compensation towards future prospects for which, the claimants are entitled to at 40% in view of the decision rendered in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680.
8. Per contra, learned counsel for the respondents submits that the compensation awarded by the Tribunal is just and appropriate, which needs no interference by this Court.
9. The occurrence of accident on 16.04.2011 and accidental death of Manoj son of claimants 1 and 2 is not in dispute in this appeal. The claimants are in appeal seeking enhancement of compensation. It is claimed that the deceased was earning a sum of Rs.14,000/- p.m. by working as medical representative in Nandan Pharma. Ex.P7 is the salary certificate produced by the claimants in support of their contention. On perusal of Ex.P7 it is seen that the said certificate do not contain the date and number and neither the author of the said salary certificate nor any representatives from Nandan Pharma is examined in support of the said document. In the absence of examination on behalf of Nandan Pharma and in the absence of date and number on the salary certificate, the same cannot be accepted. However, notional income taken by the Tribunal at Rs.5,000/- p.m. is on the lower side. This Court and Lok Adalaths, while settling the accidental cases of the year 2011 would normally take Rs.6,500/- p.m. as notional income for determination of the compensation. Even in the present case, in the absence of proof of income, I deem it appropriate to reckon the monthly income of the deceased at Rs.6,500/- notionally.
10. The Tribunal has not awarded any compensation on the head of future prospects. It is stated that the deceased was working as medical representative. Even though, the claimants have not produced any document indicating the salary of the deceased, notional income is determined at Rs.6,500/- p.m. As per the decision of the Hon'ble Supreme Court in PRANAY SETHI case (supra), the claimants would be entitled for future prospects at 40% of the income as the deceased was below 40 years of age. Since the deceased was a bachelor, deduction towards personal expenses would be 50%. The compensation awarded under the conventional heads is on the lower side, whereas the claimants are entitled to Rs.30,000/- under conventional heads. Further, claimants 1 and 2 are the parents of the deceased, who have lost love and affection of their son. As per the decision of the Hon'ble Supreme Court reported in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS, the claimants are entitled to Rs.40,000/- towards parental consortium. Thus, the claimants would be entitled to modified compensation, as follows:
Loss of dependency :: Rs.8,73,600.00 (6500 + 40% - 50% x 12 x 16)
Total Rs.9,43,600.00 On conventional heads, the claimants are entitled to Rs.30,000/- as against Rs.15,000/- awarded by the Tribunal.
On the head of love and affection, the claimants are entitled to Rs.40,000/- as against Rs.10,000/- awarded by the Tribunal. Thus, the claimants are entitled to modified compensation of Rs.9,43,600/- with interest awarded by the Tribunal.
11. Accordingly, the appeal is allowed in part. The judgment and award dated 09.01.2013 passed in MVC No.572/2011 on the file of the Principal Senior Civil Judge and Member, MACT-IV, Davanagere is modified. The appellants/claimants are entitled to total compensation of Rs.9,43,600/- with interest as awarded by the Tribunal as against Rs.4,15,000/- awarded by the Tribunal. Apportionment and deposit of enhanced compensation would be as ordered by the Tribunal.
mpk/-* CT:bms Sd/- JUDGE