IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.4468 OF 2017 [MV] BETWEEN 1. SMT. RANGAMMA, AGE 41 YEARS, W/O. LATE T.A. ASHWATHANARAYANA, 2. KUM. ARUNA, AGE 21 YEARS, D/O. LATE T.A. ASHWATHANARAYANA, 3. T.A. ANJANAMURTHY, AGE 18 YEARS, S/O. LATE T.A. ASHWATHANARAYANA, ALL ARE RESIDENTS OF THERIYAL VILLAGE-572 132, KODIGENAHALLI HOBLI, MADHUGIRI TALUK, TUMAKURU DISTRICT. ... APPELLANTS [BY SRI.PATEL D. KAREGOWDA, ADVOCATE] AND 1. JAYANNA, AGE 43 YEARS, S/O. LATE SANJEEVAIAH, OWNER SEVEN HILLS MOTORS BUS, 15TH CROSS, SIT EXTENSION, TUMAKURU-572 101.
2. IFFCO TOKIO GENERAL INSURANCE CO. LTD., I FLOOR, NO.2, SNR ARCADE, AYYAPPA TEMPLE ROAD, JALAHALLI CROSS, PEENYA, BENGALURU-560 057.
BY ITS MANAGER. ... RESPONDENTS [BY SRI.S.V. HEGDE MULKHAND, ADVOCATE FOR R2.
NOTICE TO R1 IS DISPENSED WITH VIDE COURT ORDER DATED 24.11.2017] * * * THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.03.2017 PASSED IN MVC NO.216/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT XIII, MADHUGIRI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATIONA 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 both the learned counsel.
2. The claimants have filed this appeal, seeking enhancement of compensation awarded by the Tribunal for the death of one T.A.Aswathanarayana, who died in a road traffic accident which took place on 04.10.2014.
3. I have heard the learned counsel for the appellants and the learned counsel appearing for respondent No.2/Insurance Company.
4. The claimants are the widow and two minor children of the deceased T.A.Aswathanarayana. It is the case of the claimants that on 04.10.2014 at about 1.45 p.m., when the deceased was traveling in a bus bearing reg. No.KA-25/C- 2304 from Kodigenahalli towards Kodagadala village to attend a function of his relative along with one T.H.Nagaraju and when the said bus reached near the land of Hoovina Rangappa, in between Kodigenahalli-Boodenahalli Lambani Thanda at Boodenahalli village, at that time, due to the rash and negligent driving by the driver of the said bus, the deceased who was sitting in the back seat fell down and sustained grievous injuries on the head and all over the body and died at the spot.
The claim petition was filed seeking a total compensation of Rs.25,00,000/-. Before the Tribunal two witnesses were examined on behalf of the claimants and Exs.P1 to 7 were got marked. On behalf of the respondent/Insurance Company, R.Ws.1 and 2 were examined and Exs.R1 to 9 were got marked.
The Tribunal after considering the evidence and the material, awarded a compensation of Rs.10,17,000/- with interest at the rate of 6% p.a.
5. Seeking enhancement of the compensation awarded by the Tribunal, the learned counsel appearing for the appellants submitted that the deceased was aged 43 years and he was earning Rs.15,000/- p.m. as an agriculturist and also by bed making and therefore, the Tribunal was not justified in taking the income of the deceased at Rs.6,000/-
p.m. He submitted that no sum has been added to the income towards future prospects and therefore, he seeks to enhance the compensation awarded by the Tribunal by modifying the Judgment and Award passed therein.
Per contra, learned counsel appearing for the Insurance Company vehemently contended that the Tribunal has awarded an excessive compensation and no enhancement is called for. He submits that the appellants have failed to prove the income of the deceased and therefore, in the absence of any satisfactory evidence, the Tribunal has taken the notional income at Rs.6,000/- p.m. Accordingly, he seeks to dismiss the appeal.
6. It is the case of the claimants that the deceased while traveling in a bus bearing reg. No.KA-25/C-2304 on 04.10.2014, due to the rash and negligent driving by the driver of the said bus, he fell down and sustained grievous injuries and died on the spot. The accident in question and the actionable negligence on the part of the driver of the bus are not in dispute. The offending bus was insured with the 2nd respondent herein. The Tribunal has awarded a total compensation of Rs.10,17,000/- with interest at 6% p.a. and held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation.
7. The Tribunal has taken the income of the deceased at Rs.6,000/- p.m. as against Rs.15,000/- pleaded by the appellants. Except the oral testimony of P.W.1 there is no other satisfactory evidence adduced to prove that the deceased was having an income of Rs.15,000/- p.m. However taking into consideration the avocation of the deceased, the year of the accident and also considering the fact that the claimants are the wife and two minor children of the deceased depending on his income, I deem it proper to take the notional income of the deceased at Rs.8,500/- p.m. as against Rs.6,000/- p.m. taken by the Tribunal.
8. In view of the law laid-down by the Hon’ble Apex Court in the cases of National Insurance Company Vs. Pranay Sethi and others reported in AIR 2017 SC 5157 and Magma General Insurance Co. Ltd. Vs. Nanu Ram reported in 2018 ACJ 2782 an additional 25% has to be added to the income of the deceased towards future prospect, since he was aged about 45 years as per Ex.P4-post mortem report.
9. The proper multiplier applicable is ‘14’. After deducting 1/3rd from the income of the deceased towards personal expenses, the total compensation for which the appellants are entitled towards loss of dependency is Rs.11,90,112/- [Rs.8,500 + 2,125 – 3,541 = Rs.7,084 x 12 x 14].
10. The claimants are wife and two minor children of the deceased. An additional sum of Rs.70,000/- is awarded towards loss of consortium, loss to the estate, funeral expenses and transportation charges. A sum of Rs.25,000/- each is awarded to two minor children towards loss of love and affection. In all, the appellants are entitled for a total compensation of Rs.13,10,112/- as against Rs.10,17,000/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part. The Judgment and Award dated 24.03.2017 passed in MVC No.216/2014 on the file of the Additional Senior Civil Judge and MACT XIII, Madhugiri is hereby modified.
The appellants are entitled for a total compensation of Rs.13,10,112/- with interest at the rate of 6% p.a. from the date of the petition till the date of deposit.
Respondent No.2/Insurance Company shall deposit the amount within a period of four weeks from the date of receipt of copy of this Judgment.
The apportionment and disbursement of the Award amount shall be in terms of the order passed by the Tribunal.
Sd/- JUDGE.
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