IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ Miscellaneous First Appeal No. 5051/2014(MV) BETWEEN:
PREMALATHA S.SHETTY, W/O LATE SANJEEVA SHETTY, AGED ABOUT 52 YEARS, R/AT 9-85/2, DEEPA TAILORS, NEAR RAMA SHAKTHI MISSION, SHAKTHINAGARA POST, PADAVU VILLAGE, MANGALORE-575 001. ... APPELLANT (BY SRI. KARUNAKARA.P, ADV.,) AND:
1. NAWAZ, S/O MUKTHAR, AGED 31 YEARS, R/AT 1-140, PATTATU HOUSE, THANIYAM P.O., PERINGOTTUKARA, THIRUCHIRU DISTRICT, KERALA STATE-678 012.
(OWNER OF JEEP BEARING NO.KL 072579) 2. BRANCH MANAGER, THE NEW INDIA INSURANCE CO. LTD., PALAKAD D.O. (761100), 1ST FLOOR, N.S.TOWER, NEAR STADIUM BUS STAND, COIMBATORE ROAD, KUNNATHOOR MEDO, KERALA-678013, (INSURER OF JEEP BEARING NO.KL-072579), 3. NAVEEN D’SOUZA, S/O JARMI D’SOUZA, AGED ABOUT 34 YEARS, R/AT MUDIPU KAYARGOLIMANE, KURNADU POST AND VILLAGE, BANTWAL TALUK-575 012.
(OWNER OF MINI BEARING NO.KA 13 A 811).
4. BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., 1ST FLOOR, POORVA ARCADE, N.H.17, SURATHKAL, MANGALORE-575 014, (INSURER OF MINI BEARING NO.KA 13 A 0811).
5. MR. GEORGE.A, 2/536, AZHEPARAMBAIL HOUSE, TRIPUNITHANA ERNAKULAM, KERALA-682 011.
6. DITHIRAJ SHETTY, S/O LATE SANJEEVA SHETTY, AGED 30 YEARS, R/AT 9-85/2, DEEPA TAILORS, NEAR RAMA SHAKTHI MISSION, SHAKTHINAGARA POST, PADAVU VILLAGE, MANGALORE-575 001. ... RESPONDENTS (BY SRI. S SRISHAILA, ADV., FOR R2; SRI. K.K.VASANTH, ADV., FOR R4;
R1, R3 & R5 – NOTICE DISPENSED WITH VIDE ORDER DATED 23/06/2016) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:06.12.2013 PASSED IN MVC NO.1858/2011 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & MEMBER, MACT, MANGALORE, 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, the same is taken up for final disposal with the consent of the learned counsel appearing on both sides.
2. This appeal is filed by the claimant seeking enhancement of compensation awarded in MVC No.1858/2011 on the file of the Principal Senior Civil Judge & Member, MACT, Mangalore, wherein a total compensation of Rs.5,60,000/- has been awarded for the death of husband of the claimant in a road traffic accident.
3. The case of the claimant/appellant is that on 06.11.2011 at about 6.00 p.m., when the deceased Sanjeeva Shetty was standing by the side of the road, near Ramashakthi Mission, opp. Post office, Shakthinagar, Padavu village, Mangalore Taluk, the driver of a mini bus bearing registration No.KA 13 A 811 drove the same in a rash and negligent manner from Muthappa Gudi towards Nalyapadav and at the same time a jeep bearing Reg.No.KL 07 2579 driven by its driver in a rash and negligent manner overtook the mini bus and dashed against deceased Sanjeeva Shetty, due to which he sustained injuries and died.
4. It is the further case of the claimant that the deceased was aged about 53 years and he was eeking out his livelihood as a tailor and having an income of Rs.10,000/- p.m. by maintaining a Tailor shop in the name of “Deepa Tailors” and used to contribute the entire income to his family.
5. The appellant was examined as PW1 before the Tribunal and Exs.P1 to P7 were marked in evidence. The claim petition was opposed by the insurance company. No witnesses were examined on behalf of the respondents. However, Ex.R1 to R3 were got marked. The Tribunal, after considering the oral and documentary evidence on record awarded a total compensation of Rs.5,60,000/- under the following heads:
1. Loss of dependency Rs.4,40,000/-
2. Loss of estate Rs. 50,000/-
3. Loss of love and affection Rs. 25,000/-
4. Loss of consortium Rs. 30,000/-
5. Funeral and obsequies Rs. 15,000/-
Total Rs.5,60,000/-
The Tribunal after considering the evidence on record came to the conclusion that the insured and the insurer of the offending vehicles are liable to pay the compensation thereby holding that the drivers of both the vehicles were negligent in causing the accident.
6. It is the contention of the learned counsel for the appellant that the deceased was earning a sum of Rs.10,000/- p.m. He placed reliance on Exs.P7 to P9 - three receipts issued by the Karnataka State Tailors Association to show that the deceased was a member of the said Association. Except the receipts, there is no other satisfactory evidence to hold that the deceased was earning the said sum through his tailoring profession. However, considering the fact that the accident was of the year 2011 and the avocation of the deceased, I am of the view that the notional income of the deceased can be taken at Rs.6,500/- p.m. as against Rs.5,000/- p.m. taken by the tribunal. An additional 10% has to be added to the income towards ‘future prospects’, on the basis of the age of the deceased, which comes to Rs.7,150/- p.m. After deducting 1/3rd towards personal expenses, the income is assessed at Rs.4,767/- p.m. (7,150 - 2,383). The proper multiplier being ‘11’, the claimants are entitled for a total compensation of Rs.6,29,244/- (Rs.4,767 x 12 x 11) under the head ‘loss of dependency’. The compensation awarded under all other heads being just and reasonable in the facts and circumstances of the case, and no appeal having been filed by the Insurance Company challenging the same, the claimant-wife is entitled to the said sum. Hence, the appellant/claimant is awarded a total compensation of Rs.7,49,244/-
which is rounded off to Rs.7,50,000/- as against Rs.5,60,000/- awarded by the Tribunal. Hence, I pass the following:
ORDER (i) The appeal is allowed in part.
(ii) The judgment and award dated 06.12.2013 in MVC No.1858/2011 on the file of the Principal Senior Civil Judge & Member, MACT, Mangalore, is hereby modified.
(iii) The claimant-wife is entitled for a total compensation of Rs.7,50,000/- with interest @ 6% p.a. from the date of petition till the date of realization.
(iv) The insurer of both the vehicles i.e., respondent No.2 and 4 are liable to pay the compensation at the ratio 50:50 as directed by the Tribunal.
Sd/- JUDGE TL