IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.6904 OF 2015 (MV) BETWEEN:
1. SMT. PUSHPA, W/O SHAMBU, AGED ABOUT 47 YEARS 2. SRI. SHAMBU, S/O RANGAPPA, AGED ABOUT 56 YEARS BOTH ARE R/O BILAGULA, HESAGAL POST, MUDIGERE TALUK, CHIKKAMAGALUR DISTRICT – 577 101.
...APPELLANTS (BY SRI. VINOD GOWDA, ADVOCATE) AND:
1. SRI MOHIDDIN, S/O USMAN SAB, AGED ABOUT 39 YEARS, R/O SHANTHINAGAR, BANAKAL, MUDIGERE TALUK – 577 101.
2. THE BRANCH MANAGER, NATIONAL INSURANCE CO., LTD., YASHORAM CHAMBERS, R.G.ROAD, CHIKKMAGALURU – 577 101.
...RESPONDENTS (BY SRI. S. SRISHAILA, ADVOCATE FOR R2;
V/O DTD:30/11/2015 NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.04.2015 PASSED IN MVC NO.401/2012 ON THE FILE OF THE COURT OF THE PRINCIPAL DISTRICT JUDGE AND MEMBER MACT, AT CHIKKAMAGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is by the claimants questioning the correctness and legality of the judgment and award dated 15.04.2015 passed in MVC.No.401/2012.
2. The case of the petitioners before the Tribunal is that one Harish, son of the appellants herein was proceeding on his motorcycle bearing Reg.No.KA-16-H-8562 on 05.05.2012 at about 8.30 p.m. At that juncture, respondent No.1 who is the driver and owner of Ape Goods Auto bearing Reg.No.KA-18-A-3381 came in a rash and negligent manner and dashed against the motorcycle. In the said accident, the son of the petitioners suffered severe head injuries and was immediately shifted to M.G.M. Hospital, Mudigere, where he was given first aid treatment and thereafter, he was shifted to Father Muller Hospital, Mangaluru. Despite of best efforts by the Doctors, Harish succumbed to the injuries at about 12.45 a.m. on 06.05.2011.
3. The petitioners averred in the claim petition that their son was hale and healthy and was doing plumbing work earning Rs.500/- per day and he was the only earning member of the family. Hence, filed a claim petition claiming compensation of Rs.25,00,000/- for having lost their son in a road accident dated 05.05.2012.
4. The respondent No.1-owner of the vehicle involved in the accident, inspite of service of notice, did not chose to contest the proceedings and hence, was placed exparte. Respondent No.2 – Insurance Company having entered appearance, filed statement of objections and admitted the issuance of policy. Respondent No.2 stoutly denied the averments insofar as negligence of respondent No.1. On the contrary, a specific contention was taken that the accident occurred only due to rash and negligent act of the deceased himself. On these grounds, they sought for dismissal of the petition.
5. The Tribunal having formulated issues, proceeded for trial. The claimants in support of their contention, examined PWs.1 and 2 and to corroborate their contentions, produced documentary evidence at Exs.P-1 to P-8. The second respondent in support of its contention, furnished copy of the insurance policy which was marked at Ex.R-1, but did not lead any oral evidence.
6. The Tribunal on appreciation of the evidence on record, answered issue No.1 by holding that the accident occurred due to rash and negligent driving by respondent No.1. Insofar as compensation is concerned, the Tribunal on examining the material on record, was of the view that there is no evidence to corroborate the contention of the claimant that the deceased was working as a plumber. In the absence of any clinching evidence, the Tribunal by treating the deceased as a Coolie, proceeded to take his income at Rs.6,000/- and determined the compensation payable under the head ‘loss of dependency’ at Rs.5,04,000/-.
7. Learned counsel appearing for the appellants would vehemently argue that the Tribunal was not justified in taking the income of the deceased at Rs.6,000/- and this reasoning is erroneous and warrants interference by this Court.
8. On re-appreciation of the evidence, we are of the view that even in the absence of documentary evidence, the Tribunal was not justified in taking the income of the deceased at Rs.6,000/-. Since the accident is of the year 2012 and as per the chart prepared by the Legal Services Authority, High Court of Karnataka, we deem it appropriate to take the income of the deceased at Rs.7,000/- and having regard to the fact that the deceased was aged 20 years, 40% future prospects is to be added. The income on re-determination comes to Rs.9,800/- (7,000+2,800). Admittedly, the deceased was a bachelor and if 50% is deducted towards his personal expenses, the dependency of the family comes to Rs.4,900/- and by applying the multiplier of 18, the compensation payable under the head ‘loss of dependency’ would be Rs.10,58,400/- (4,900x12x18). The claimants are also entitled for Rs.30,000/- under the other conventional heads. Hence, the total compensation payable to the claimants is Rs.10,88,400/- as against Rs.5,09,000/- awarded by the Tribunal.
9. Accordingly, appeal is allowed in part. The claimants are entitled for an enhanced compensation of Rs.5,79,400/- with interest at the rate of 6% p.a. from the date of petition till realization.
The order of the Tribunal insofar as apportionment and investment remains unaltered.
Sd/- JUDGE Sd/- JUDGE CA