IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.5771/2012(MV) BETWEEN:
1. SMT. PADMAVATHI W/O NAGARAJ AGED ABOUT 45 YEARS.
2. NAGARAJ S/O SATYANARAYANA AGED ABOUT 50 YEARS.
BOTH ARE RESIDING AT G.P. ROAD, SAGAR TOWN – 577 401.
(BY SRI. PRUTHVI WODEYAR., ADVOCATE) AND:
1. MAHESH S/O TAMMAIAH AGED ABOUT 23 YEARS R/O S.N. NAGAR 3RD CROSS, SAGAR – 577 401 DRIVER OF BAJAJ BIKE BEARING REG. NO.KA 14/L-6895.
2. YASAR S/O ABDUL RAHIM MAJOR, R/O ADHISHAKTI NAGAR VARADAMOOLA VILLAGE ... APPELLANTS SAGAR TALUK – 577 401 OWNER OF BAJAJ BIKE BEARING REG. NO.KA-14/L-6895.
3. THE DIVISIONAL MANAGER THE NATIONAL INSURANCE CO. LTD., HARSHA COMPLEX, SHIMOGA – 577 201.
... RESPONDENTS (BY SRI. O. MAHESH., ADVOCATE FOR R-3; NOTICE TO R-1 AND R-2 SERVED AND UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:24.02.2012 PASSED IN MVC NO.96/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, MEMBER, ADDITIONAL MACT, SAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This is a claimants appeal questioning the correctness and legality of the judgment and award dated 24.02.2012 passed in MVC.No. 96/2011 by Senior Civil Judge & JMFC and Additional MACT, Sagar and seeking for enhancement of compensation.
2. I have heard the arguments of learned Advocates appearing for the parties and perused the records.
3. On account of a road traffic accident that occurred on 31.01.2011, eldest son of the claimants sustained head injury and other bodily injuries and he was admitted to the KMC Hospital, Manipal and has taken treatment for a period of two months. Later he succumbed to the injuries on 30.03.2011. As such, claiming compensation, a claim petition under Section 166 of Motor Vehicles Act, 1988 came to be filed by the claimants. Tribunal, after considering the pleadings and evidence of the parties, has awarded a total compensation of Rs.5,23,019/- with interest @ 6% p.a. from the date of petition till date of realization under the following heads:
4. Learned Advocate appearing for appellants – claimants contended that compensation awarded under all heads are abysmally on the lower side and Tribunal has erred in not considering the actual income earned by the deceased for awarding compensation towards ‘loss of dependency’. Hence, he prays for enhancement of compensation.
5. Per contra, learned Advocate appearing for respondent-3 would contend that compensation awarded by the Tribunal is just and reasonable and prays for dismissal of the appeal.
6. Having heard the learned Advocates appearing for parties and on perusal of judgment and award passed by the Tribunal, it would disclose that son of the claimants namely, Sri Vinaya Kumar sustained grievous injuries in the accident that occurred on 31.01.2011 and after taking treatment at the hospital for a period of two months, he succumbed to the injuries on 30.03.2011. Deceased was a driver by profession. P.W.1 – father of the deceased has deposed that his son as a driver was earning Rs.40,000/- per annum and produced Ex.P-9 – driving licence of the deceased to prove the fact of deceased being a driver. However, claimants have not produced any documentary evidence to establish that deceased was earning Rs.40,000/- per annum. Tribunal has opined that income of the deceased is to be construed at Rs.125/- per day and after deducting 1/3rd towards personal expenses of the deceased, his contribution to the family would only be remaining amount. It has been held by the tribunal that if Rs.125/- per day is construed as income of deceased, it would be more than a sum of Rs.40,000/-. Hence, Tribunal has restricted the income of the deceased to Rs.40,000/- per annum and after deducting 1/3rd towards personal expenses and considering the age of the mother which is about 44 years, has adopted the multiplier of ‘15’ and arrived at a conclusion that claimants would be entitled to a compensation of Rs.4,00,005/- towards ‘loss of dependency’. The basis for arriving at the income of deceased does not appeal to logic. Even if Rs.125/- is taken as income of the deceased per day, the monthly income would be Rs.3,750/- (Rs.125/- x 30 days) and per annum, it would be Rs.45,000/- (Rs.3,750/- x 12). Hence, said finding being erroneous, it is liable to be set aside.
7. Deceased was a driver by avocation.
Accident is of the year 2011. In the year 2011, deceased being the driver, would have earned monthly income of Rs.6,500/-. Therefore, for the purpose of computation of ‘loss of dependency’, income of the deceased can be safely taken as Rs.6,500/- per month. Hon’ble Apex Court in NATIONAL INSURANCE COMPANY vs PRANAY SETHI & OTHERS reported in AIR 2017 SC 5157 has held that where deceased was self employed, addition of 40% of the established income should warrant where deceased was below 40 years and 25% where deceased was between 40 to 50 years and 10% where deceased was aged between 50 to 60 years as a necessary method of computation. In the light of law laid down by Hon’ble Apex Court and taking note of the fact that Tribunal has accepted the avocation of the deceased as driver, this Court is of the considered view that deceased being on a fixed salary, addition of 40% would warrant since as per the post mortem report – Ex.P-206, deceased was aged 27 years. This Court has determined the income of the deceased at Rs.6,500/- per month, 40% of it deserves to be added which would be Rs.2,600/- (40% of Rs.6,500/-) and when so added, total income of the deceased would be Rs.9,100/- (Rs.6,500/- + Rs.2,600/-).
8. Since deceased was a bachelor, 50% requires to be deducted from his total income thereby, ‘loss of income’ to the dependents would be Rs.4,550/- per month (Rs.50% of Rs.9,100/- = Rs.4,550/-). Tribunal for determination of compensation towards ‘loss of dependency’ has adopted the multiplier of ‘15’ by taking into consideration the age of mother. Hon’ble Apex Court has held that age of the deceased is to be taken while considering the claim for award of compensation to the dependents. As per Post Mortem report – Ex.P- 206, deceased’s age is shown as 27 years. Thus, adopting the multiplier of ‘17’, compensation towards ‘loss of dependency’ is computed as under:
HEAD AMOUNT (Rs.) Loss of dependency:
Income per month - Rs. 6,500/- Add: 40% towards - Rs. 2,600/- future prospects Rs. 9,100/-
Less: 50% towards Personal expenses Rs. 4,550/-
Rs. 4,550/-
Appellants - claimants would also be entitled to a sum of Rs.15,000/- towards ‘loss of estate’ which has not been awarded. Thus, appellants-claimants would be entitled to additional compensation of Rs.5,43,195/-.
9. For the reasons aforestated, I proceed to pass the following :
JUDGMENT (1) Appeal is allowed in part.
(2) Judgment and award dated 24.02.2012 passed in MVC.No. 96/2011 by Senior Civil Judge & JMFC and Additional MACT, Sagar is hereby modified and an additional compensation of Rs.5,43,195/- is awarded which shall carry interest @ 6% p.a. from date of petition till date of payment or deposit whichever is earlier.
(3) The apportionment of the enhanced compensation shall be in the same ratop as ordered by the Tribunal.
(4) Insurance company is directed to deposit the additional compensation amount awarded with interest before the jurisdictional Tribunal forthwith and on failure to do so, claimants would be at liberty to proceed in accordance with law.
(5) Registry is directed to transmit the records to the jurisdictional Tribunal forthwith.
SD/- JUDGE *sp