IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MISCELLANEOUS FIRST APPEAL NO.6950/2013 (MV) BETWEEN:
1. SMT. RADHA JOSEPH, W/O LATE M.A.JOSEPH, AGED 51 YEARS 2. MISS JANCY JOSEPH, AGED ABOUT 16 YEARS, D/O LATE M.A.JOSEPH SINCE MINOR REPRESENTED BY HER MOTHER NATURAL GUARDIAN SMT. RADHA JOSEPH BOTH ARE RESIDING AT JESUS HOUSE, KODIKERE, KULAI, KULAI POST & VILLAGE, MANGALORE – 575019.
...APPELLANTS (BY SRI.JEEVAN.K, ADVOCATE) AND:
1. SRI.SULAIMAN, S/O SEEDHI BEARY, AGED 54 YEARS, R/O GUMPAKALLU HOUSE, MOODU PADUKODI GRAMA, VAGGA POST, BANTWAL TALUK-574211.
2. THE MANAGING PARTNER, GANESH SHIPPING AGENCY, SRI RAM BUILDING, KOTTARA CHOWKI, MANGALORE-575006.
3. THE BRANCH MANAGER, ORIENTAL INSURANCE CO.LTD., BRANCH-KRISHNAPRASAD BUILDING, 3RD FLOOR LALBAGH, MANGALORE – 575001.
...RESPONDENTS (BY SRI.A.M.VENKATESH, ADVOCATE FOR R3;
V/O DTD: 26.11.2015 NOTICE TO R1 & R2 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.10.2012 PASSED IN MVC NO.731/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, MEMBER, MACT-II, D.K. MANGALORE, 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 The claimants have filed the top noted appeal challenging the judgment and award dated 17.10.2012 passed in MVC.No.731/2009 on the ground that the compensation determined by the Tribunal is inadequate.
2. The brief facts leading to the top noted appeal is as under:
The claimants filed the claim petition by contending that one M.A. Joseph was proceeding on his Honda Activa Scooter bearing Reg.No.KA-19-W- 9173 on 22.04.2009 at about 1.00 p.m. At that juncture, the driver of the offending lorry bearing Reg.No.KA-19-C-1894 came in a rash and negligent manner from the hind side and knocked down the deceased. Due to the impact, the deceased was thrown off the road and the rear wheel of the offending lorry ran over the deceased on account of which the deceased died on the spot. The claimants averred in the claim petition that they were totally dependent on the income of the deceased for their livelihood. The claimants averred in the claim petition that the deceased was aged about 54 years and was working as a Shore Worker at NMPT, Mangaluru for the last 30 years and was drawing a salary of Rs.56,738/-. On these set of facts, the claimants filed the claim petition claiming compensation of Rs.75,00,000/-.
3. The third respondent - Insurance Company on receipt of notice, contested the proceedings by filing written statement. The Insurance Company stoutly denied the entire averments made in the claim petition. The third respondent - Insurance Company contended in the written statement that the driver of the offending vehicle did not hold a valid and effective driving licence and hence, the Insurance Company is not liable to pay the compensation.
4. Based on the rival contentions, the Tribunal formulated issues. The claimant No.1 in support of her contention, examined herself as PW.1 and examined three independent witnesses as PWs.2 to 4 and to corroborate oral evidence, produced documentary evidence vide Exs.P-1 to P-30. The third respondent - Insurance Company produced copy of insurance vide Ex.R-1, but did not lead any oral evidence. The Tribunal having examined the material on record arrived at the conclusion that the income of the deceased is to be assessed at Rs.32,000/- and accordingly, proceeded to award a compensation of Rs.16,96,320/- under the head ‘loss of dependency’. The Tribunal further awarded a sum of Rs.50,000/- under the other heads. Being aggrieved by the compensation awarded by the Tribunal, the claimants have filed this appeal.
5. Heard learned counsel for the appellants and learned counsel for the third respondent – Insurance Company.
6. Learned counsel for the appellants would argue that the Tribunal was not justified in taking the income of the deceased at Rs.32,000/-, which is contrary to the evidence on record which would clearly indicate that the earnings of the deceased per month was Rs.56,738/-. Learned counsel for the appellants would argue that in the income tax returns submitted by the deceased, the gross total income is shown as Rs.6,30,386/- and hence, would argue that the Tribunal was not justified in restricting the income of the deceased at Rs.32,000/-. On perusal of the records, more particularly Ex.P-25, it is evident that deceased basic salary was Rs.6985/- for the month of March 2009. Further the material on record would also indicate that the gross salary of the deceased including the payment made for the overtime job for the month of March 2009 as could be seen from Ex.P-13 was around Rs.38,290/-. This payment was in fact made for the overtime job done by the deceased. Even for the month of December 2009, the basic pay of the deceased is shown as Rs.6,985/-and further a sum of Rs.27,369/- was the payment made towards overtime job. Hence, in this context, the Tribunal having meticulously examined the salary pay slips and having examined Ex.P-30 – passbook, has rightly come to the conclusion that pension for the month of July 2012 remitted to the first claimant - wife of the deceased was around Rs.11,803/-. Hence, the Tribunal by taking note of the basic salary of the deceased and the pension received by first claimant as on 2012, has rightly arrived at a conclusion that the deceased if had survived, the pension would have been around Rs.16,000/- and this amount was added in terms of future prospects and accordingly, the monthly income of the deceased has been arrived at Rs.32,000/- by the Tribunal. This finding of the Tribunal in arriving at the projected income of the deceased at Rs.32,000/- appears to be reasonable and just. Though learned counsel for the appellant would argue that the income has to be taken at Rs.56,738/-, the said contention is not supported by any clinching evidence and hence, we do not find any ground to interfere with the findings and reasoning arrived by the Tribunal in assessing the loss of dependency.
7. On re-appreciation of the entire evidence on record and having examined the reasons assigned by the Tribunal in arriving at the conclusion that the claimants are entitled for a sum of Rs.17,46,320/- does not suffer from any infirmities and hence, the appeal filed by the claimants is liable to be dismissed.
In the light of the above discussion, the appeal is dismissed.
No order as to costs.
Sd/- JUDGE Sd/- JUDGE CA