IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE R.DEVDAS AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR M.F.A.NO.7903 OF 2016 (MV D) BETWEEN 1. SMT. RAJESHWARI W/O LATE RAVIKUMAR AGE 32 YEARS 2. RAJINI. R D/O LATE RAVIKUMAR AGE 19 YEARS 3. THIRTHAPRASAD R S/O LATE RAVIKUMAR AGE 16 YEARS 4. MARIKUSU S/O LATE MARISHETTY AGE: 72 YEARS 5. SMT. MAHADEVAMMA W/O MARISHETTY AGE: 62 YEARS APPELLANT NO.3 BEING MINOR IS REPRESENTED BY HIS NATURAL GUARDIAN MOTHER I.E. APPELLANT NO.1.
ALL ARE RESIDENT OF NO.95 GOLUR VILLAGE VIDHYAPITA POST KASABA HOBLI, NANJANGUD TALUK-571301 (BY SRI NAGARAJ R C, ADVOCATE) AND 1. HARISH R S/O LATE RAMEGOWDA AGE: MAJOR HARIHARAPURA VILLAGE BILIGERE HOBLI NANJANAGUDU TALUK-571301 (RIDER OF THE VEHICLE TVS APPACHE BEARING NO.KA.09.EQ.8882) 2. RAVICHANDRA C M S/O MADAIAH MAJOR, NO.262, 1ST MAIN, 1ST CROSS, BELAVATHA, RBI POST, MYSORE-570 002 (OWNER OF THE VEHICLE) 3. THE ORIENTAL INSURANCE CO LTD NO.42/1, CHANDRA COMPLEX 1ST FLOOR, KALIDASA ROAD MYSORE-570 002 REP BY ITS BRANCH MANAGER ... APPELLANTS ... RESPONDENTS (BY SRI R GOVINDARAJAN, ADVOCATE FOR R3; VIDE ORDER DATED 17/10/17 NOTICE TO R1 & R2 IS DISPENSED WITH) THIS M.F.A. FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 28.09.2016 PASSED IN MVC NO.130/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C AND M.A.C.T, NANJANGUD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY, ASHOK G. NIJAGANNAVAR J., DELIVERED THE FOLLOWING:
J U D G M E N T The legal representatives of the deceased have preferred this appeal for enhancement of compensation and for modification of the judgment and award dated 28.09.2016 passed by the Senior Civil Judge & J.M.F.C. and Member, M.A.C.T., Nanjanagud in M.V.C.No.130/2016.
2. It is the case of the appellants that on 24.11.2015 at about 7 p.m., the husband of petitioner/appellant No.1, who was the father of petitioner/appellant Nos.2 and 3 and son of petitioner/appellant Nos.4 and 5 - Ravikumara S/o Marikusu was going along with his friends for a walk near Sri.Nanjundeshwara Temple. When they were in front of land of Chairman of Golur, Chamarajanagara-Nanjanagud Main road on left side of the road, the 1st respondent, being the rider of TVS Appache bearing registration No.KA-09-EQ-8882, came in a high speed, rash and negligent manner and dashed to Ravikumara. As a result of which, he sustained grievous injuries. He was immediately shifted to Government Hospital, Nanjangud and after the first-aid, he was shifted to Brindavan Hospital, but, he succumbed to the injuries on the same day.
3. The claim petition was filed by the appellants, who are the legal representatives of the deceased Ravikumara. On service of notice, the respondent-Insurance Company has appeared and filed objections denying the entire petition averments including issuance of the insurance policy for the offending vehicle. Further, it was denied that the 1st respondent was holding a valid and effective Driving License to ride the offending vehicle as on the date of the accident. It was also denied that the accident took place due to the rash and negligent riding of the offending vehicle, but it was due to the negligence of the deceased himself.
4. On the basis of the pleadings of both the parties, the Tribunal has framed the following Issues:
1. Whether the petitioners prove that deceased Ravikumara S/o Marikusu died in a Road Traffic Accident occurred on 24.11.2015 at about 7 pm, in front of land of Chairman of Goluru, Chamarajanagara-Nanjanagud Main road, due to rash and negligent manner of driving Motorcycle bearing Registration No.KA-09-EQ-8882, by the 1st respondent?
2. Whether the Petitioners are entitled for compensation, if so, how much and from whom?
3. What award or order?
5. The wife of the deceased i.e., Smt.Rajeshwari, was examined as P.W.1 and 12 documents were marked as Exs.P-
1 to P-12. The respondents have not led evidence and no documents were produced.
6. On appreciating the oral and documentary evidence placed on record, the Tribunal has answered the issue No.1 in affirmative holding that the accident was due to rash and negligent riding of the motorcycle by the 1st respondent. Regarding issue No.2, the Tribunal was pleased to award a total compensation of Rs.8,42,000/- under different heads namely, ‘loss of dependency’, ‘loss of love and affection’, ‘loss of estate’, ‘loss of consortium’ and ‘funeral expenses’.
7. Being aggrieved by the judgment and award, regarding the quantum of compensation, the appellants/legal representatives of the deceased-Ravikumara have preferred this appeal.
8. The first and foremost contention of the learned counsel for the appellants is that the amount awarded under the head ‘Loss of dependency’ is quite unreasonable and is on the lower side. As could be seen from the evidence placed on record, the deceased was a general merchant. The accident is of the year 2015. The Tribunal has taken his monthly income as Rs.6,000/-. As far as the production of the Panchayath General License, there is no dispute. Thus, it could be presumed that the deceased would have earned Rs.10,000/- per month from his business. The deceased was aged about 42 years as on the date of the accident, which is not in dispute. The Tribunal has taken the multiplier 14, which is correct.
9. By taking into consideration the income of the deceased at Rs.6,000/- p.m, the Tribunal has awarded Rs.6,72,000/- towards ‘Loss of dependency’, which is on lower side. In view of the decision of the Hon’ble Supreme Court in the case of “National Insurance Company Limited Vs. Pranay Sethi and Ors.” reported in AIR 2017 SC 5157, the legal representatives of the deceased are entitled for 25% future prospects. Considering the notional income of the deceased at Rs.10,000/- p.m., future prospects at 25%, age & number of dependants of the deceased, multiplier of 14 and multiplied by 12, in all, the compensation under the head Loss of dependency comes to Rs.15,75,000/- (Rs.10,000 x 25% -¼ = 9375 x 12 x 14 = 15,75,000). Therefore, the appellants are entitled to compensation of Rs.15,75,000/- as against Rs.6,72,000/- towards the ‘loss of dependency’.
10. The Tribunal has awarded a sum of Rs.1,70,000/- under remaining heads, namely, Rs.50,000/- towards ‘Loss of love and affection’, Rs.50,000/- towards ‘Loss of estate’, Rs.50,000/- towards ‘Loss of consortium’ and Rs.20,000/- towards ‘Funeral expenses’. In view of the amount awarded under the head ‘Loss of dependency’ as per the principles laid down in the case of “National Insurance Company Limited Vs. Pranay Sethi and Ors.” (supra) a fixed amount of Rs.70,000/- alone has to be awarded under the remaining conventional heads. Thus, an amount of Rs.1,70,000/- awarded under the remaining heads is reduced to Rs.70,000/-. Therefore, the appellants are entitled for a total compensation of Rs.16,45,000/- (Rs.15,75,000 + Rs.70,000/-) as against Rs.8,42,000/- awarded by the Tribunal.
11. For the foregoing reasons, the appeal is allowed in part. The claimants/appellants are entitled for an enhanced compensation of Rs.8,03,000/- (Rs.16,45,000 – Rs.8,42,000) in addition to the compensation awarded by the Tribunal with interest at the rate of 6% p.a. from the date of claim petition till realization. Accordingly, the judgment and award dated 28.09.2016 passed by the Senior Civil Judge & J.M.F.C. and Member, M.A.C.T., Nanjangud in M.V.C.No.130/2016 stands modified. The deposit and release of the enhanced amount shall be as per the award passed by the Tribunal.
Sd/- JUDGE Sd/- JUDGE DL