IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 5426 OF 2016 (MV) BETWEEN PEERI BAI W/O. VALLYA NAIK AGED ABOUT 67 YEARS WORKING AS COOLIE R/O ABBALAGERE VILLAGE SHIMOGGA TALUK & DISTRICT-577201.
... APPELLANT (BY SRI. M.V. MAHESWARAPPA - ADVOCATE) AND 1. BHIRESH. K.S. S/O SIDDAPPA MAJOR R/O HIREHALIVANA VILLAGE HARIHARA TALUK DAVANAGERE DISTRICT PIN 586 201.
2. T. RAJANNA S/O R. THIPPESWAMY AGED ABOUT 25 YEARS R/O MALLURAHALLI VILLAGE NAYAKANAHATTI HOBLI CHALLAKERE TALUK CHITRADURGA-576201.
3. THE MANAGER ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD., JAIL CIRCLE SHIMOGGA 577 201 POLICY NO. VGCO 318709000100 VALID UPTO 20.06.2014.
... RESPONDENTS (BY SRI. SATEESH CHANDRA. K.V. ADV., FOR R-1 AND R-2; BY SRI K. SURYANARAYANA RAO ADV., FOR R-3) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.08.2015 PASSED IN MVC NO.223/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT-6, SHIVAMOGGA, 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 Though this appeal is listed for admission, with the consent of learned counsel on both sides, the same is taken up for final disposal.
2. This appeal is preferred against the judgment and award dated 25.08.2015 rendered by the Tribunal in MVC No.223/2014 seeking enhancement of the compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 09.11.2013 at about 9.45 a.m. when deceased Ravi Naik was going by walk near Ganesh Rice Mill, Abbalagere, to attend his work, at that time a Force Tempo bearing Reg.No.KA-17-B-8421 came with high speed in a rash and negligent manner and dashed against the deceased Ravi Naik. Due to the said impact, the said Ravi Naik sustained grievous injuries and fracture. Immediately, he was shifted to Mc.Gann Hospital, Shimoga for treatment and as per the advise of the doctor, he was taken to Wenlock Hospital, Mangalore for greater treatment. But, after 3 days Ravi Naik succumbed to the injuries sustained in the accident. Due to untimely death of deceased Ravi Naik, petitioners having been put to untold hardship, filed the claim petition seeking compensation.
4. On issuance of notice, respondents 1 to 3 appeared through their respective counsel and filed separate objection statements denying the petition averments. Based upon the pleadings, the Tribunal framed the issues. In order to prove their case, petitioner No.2 was examined as PW.1 and also examined two witnesses as PW.2 and PW.3 and got marked Exs.P1 to Ex.P10. On behalf of respondents, respondent no.2 was examined as RW.1 and Exs.R1 to R3 were got marked. The Tribunal after hearing arguments of learned counsel on both sides, passed the impugned judgment, awarding compensation of Rs.6,34,000/- with interest @ 9% p.a. from the date of petition till realisation. It is this judgment which is challenged in this appeal by urging various grounds.
5. Learned counsel for the appellant contends that the judgment and award passed by the Tribunal is contrary to law and evidence on record. The compensation awarded is on lower side and the same needs to be enhanced. The Tribunal erred in assessing the income of the deceased at Rs.6000/- p.m. Further, the compensation awarded by the Tribunal under the heads, loss of dependency, loss of estate, love and affection, medical expenses, funeral expenses etc., is inadequate and requires intervention of this Court. On these grounds, he prays for allowing the appeal by enhancing the compensation awarded by the Tribunal.
6. Per contra, learned counsel for the respondent – insurer contends that the compensation claimed by the claimants is highly excessive and exorbitant. He further contends that the tribunal, on appreciation of the entire evidence and material on record, has rightly assessed the income of the deceased and awarded just and fair compensation, which does not calls for interference and prays for dismissal of the appeal.
7. In the backdrop of the contentions as taken by the learned counsel for the parties, it is relevant to state that there is no dispute with regard to death of Ravi Naik who died in a road traffic accident which occurred due to rash and negligent driving of Tempo Force vehicle bearing Reg.No.KA-17-B-8421 belonging to the second respondent on 09.11.2013 near Abbalagere village, Shimoga. The mother of deceased that is the second petitioner has been examined as PW.1 and in support of her evidence, she has produced Ex.P1- police notice, Ex.P2 – FIR, Ex.P3-complaint, Ex.P4-Spot mahazar, Ex.P5-sketch, Ex.P6- copy of report, Ex.P7-inquest report, Ex.P8-PM report and Ex.P9-charge sheet. On evaluating the oral and documentary evidence on record, the Tribunal held that the accident took place only due to rash and negligent driving of the tempo by the second respondent due to which Ravi Naik died.
8. Based upon the evidence of PW.1 and in absence of proof of income, the Tribunal has taken notional income of the deceased as Rs.6,000/- per month and deducting 50% towards his personal expenses and adopting multiplier of 17, awarded compensation of Rs.6,12,000/- towards loss of dependency. But considering the year of accident and the avocation of the deceased and the guidelines as laid down in the Lok Adalath illustration, the notional income of the deceased has to be taken at Rs.7,000/-
p.m. As per the law laid down by the Hon’ble Apex Court in National Insurance Co. Ltd vs. Pranay Sethi and others reported in AIR 2017 SC 5157, 40% has to be added towards future prospects of the deceased. Accordingly, the compensation under the head loss of dependency is re-worked out as under:
9. Further, the Tribunal has awarded Rs.10,000/- towards of loss of love and affection and Rs.10,000/- towards funeral expenses. But however, under the conventional heads as per the law laid down in Pranay Sethi’s case, the petitioner is entitled to another sum of Rs.10,000/-.
10. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Thus, in all, the claimant is entitled to total compensation of Rs.10,29,600/- as against Rs.6,34,000/- awarded by the tribunal. The enhanced compensation would be Rs.3,95,600/-
Accordingly, I proceed to pass the following:
ORDER Appeal is allowed in part. The impugned judgment and award in M.V.C.No.223/2014 is hereby modified. The claimant is entitled for enhanced compensation of Rs.3,95,600/- with interest @ 6% p.a. from the date of petition till realisation.
The insurance company shall deposit the enhanced compensation with interest before the Tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, 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.
DKB Sd/- JUDGE