Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL NO.9362 OF 2017 (MV) Between:
1. SMT RANGAMMA W/O PUTTAHANUMANTHAPPA AGED ABOUT 52 YEARS 2. SRI. PUTTAHANUMANTHAPPA S/O LAKAMANNA AGED ABOUT 58 YEARS 3. KUM. KAVITHA D/O PUTTAHANUMANTHAPPA AGED ABOUT 28 YEARS 4. KUM. P. VASANTHA @ VASANTHAMMA D/O PUTTAHANUMANTHAPPA AGED ABOUT 26 YEARS 5. MARUTHI S/O PUTTAHANUMANTAPPA AGED ABOUT 21 YEARS ALL ARE R/O DYAGEREHALLY, GOWDAGERE HOBLI, SIRA TALUK - 572137. TUMKURU DISTRICT.
(BY SRI. V B SIDDARAMAIAH, ADVOCATE) ... APPELLANTS And:
1. THE UNITED INDIA INSURANCE CO. LTD.
S.B.L.T. BUILDING, POLYTECHNIC ROAD, CHINTHAMANI, CHIKKABALLAPURA DISTRICT KARNATAKA 562 135.
REP.BY ITS BRANCH MANAGER 2. SRI K. RAVIKUMAR S/O KRISHNAPPA AGED ABOUT 34 YEARS R/O BOMMAGANAHALLY GOWDAGERE HOBLI, SIRA TLAUK 572 137 TUMKURU DISTRICT 3. SRI. THILOTHAMA CHARI S/O LAKSHMI NARAYANA CHARI R/O NO.1713, DBM ROAD, WARD NO.27, CHIKKABALLAPUR TOWN AND DISTRICT CHIKKABALLAPUR 562 135 … RESPONDENTS (BY SMT. HARINI SHIVANANDA, ADV., R1 NOTICE TO R2 AND R3 IS DISPENSED WITH V/O. DATED 13.12.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:08.07.2017 PASSED IN MVC NO.1420/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT AND JMFC, AT SIRA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION ETC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel for both parties, the appeal is taken up for final disposal.
2. This appeal is preferred by the appellants against the judgment and award dated 08.07.2017, passed in MVC No.1420/2015 by the Senior Civil Judge & Additional MACT, Sira, awarding compensation in a sum of Rs.8,02,500/- with interest at 9% p.a., after deducting 25% contributory negligence on the part of the deceased. Accordingly, the Tribunal has awarded compensation and has mentioned the apportionment in the operative portion of the order. The same is found to be inadequate, as the Tribunal has assessed the income of the deceased only in a sum of Rs.10,000/- p.m. Therefore, the intervention of this Court is required in this appeal by considering the income of the deceased at Rs.25,000/- p.m. instead of Rs.10,000/- assessed by the Tribunal. Hence, he prays for enhancement by awarding suitable compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 21.11.2015, at about 8.30 p.m., when the deceased Rajanna said to be the son of petitioners No.1 and 2, was returning to his village along with one Lakkanna by passing Tumkuru – Sira N.H.48 road, at the relevant point of time, the driver of the offending Indica Car bearing Registration No.KA-03-MK-0396 came in a rash and negligent manner and dashed against the said Rajanna. As a result of which, he sustained grievous injuries and died on the spot. The deceased was aged about 32 years as on the date of the accident. He was working as a car driver and electrician and earning Rs.25,000/- p.m. His family consisted of himself, parents, sisters and brother. The earnings of the deceased was the only source of income to the family to eke out their livelihood and the deceased was contributing his entire income for maintaining his family. Due to the untimely death of the deceased, the entire family members having been put to mental agony, the appellants/claimants filed a claim petition before the tribunal seeking compensation from the respondents.
4. In pursuance of the notice on the respondents, respondent No.1 said to be owner of the offending vehicle has not filed any written statement to resist the claim petition. Respondent No.2, being the previous owner of the offending vehicle is not liable to pay the compensation though the insurance policy stands in his name as he has sold the offending vehicle to respondent No.1 therein, on 14.05.2015. Hence, he is not liable for compensation. However, respondent No.3 said to be the insurer has entered appearance through its counsel and filed written statement by denying the entire averments made in the claim petition. On all these grounds, respondent No.3 therein sought for dismissal of the claim petition filed by the petitioners.
5. Based on the pleadings of the parties, the Tribunal framed three issues and gave its finding based on the evidence of PW.1 and also the evidence of PW.2. Exs.P.1 to P.13 were marked on behalf of the claimants to prove their case. On the other hand, RW.1 led oral evidence and also produced one document marked as Ex.R.1 on behalf of respondent No.3 - insurer. Based on the oral evidence and documentary evidence put forth by P.W.1 – Puttahanumanthappa and PW.2 - Lakkanna and documentary evidence i.e. Exs.P.1 to P.7, the Tribunal has awarded a total compensation in a sum of Rs.8,02,500/- with interest at 9% p.a. from the date of the petition till realization after excluding 25% contributory negligence on the part of the deceased. The claimants have filed this appeal aggrieved by the quantum of compensation granted by the Tribunal, on the ground that the Tribunal has failed to consider the income of the deceased in a sum of Rs.25,000/- p.m. and has erroneously held the income of the deceased only at Rs.10,000/- p.m.
6. Learned counsel for the appellants – claimants has taken me through the evidence of PWs.1 and 2 and relevant documents stated supra. The Tribunal has committed an error in not considering the hardship caused to the claimants in view of the death of the deceased Rajanna, who is stated to be the bread winner of the family. Therefore, reiterating the averments made in the claim petition, the claimants have filed the present appeal seeking compensation. Rajanna died on the accident spot on account of the injuries sustained which is reflected in the post mortem report - Ex.P.7 said to be prepared by the doctor, who conducted post mortem over the dead body of deceased Rajanna. Ex.P.6 is the inquest report said to be issued by the concerned authority. He further submitted that the compensation awarded by the Tribunal under conventional heads and other heads are found to be on the lower side. Learned counsel for the appellants has also contended that the deceased was a driver and an electrician by profession and was earning Rs.25,000/- p.m. Therefore, the same requires to be considered in this appeal as the income of the deceased is assessed only at Rs.10,000/- instead of Rs.25,000/- p.m. On all these grounds, he seeks intervention of this Court to the judgment and award impugned in this appeal and prays for awarding suitable compensation.
7. Per contra, learned counsel for respondent No.1 drew my attention to the averments made in the claim petition, evidence of PWs.1 and 2 and so also other materials relating to the avocation of the deceased, stated to be the car driver and an electrician in his village. He submits that the claimants have not produced any specific material to prove the income of the deceased as Rs.25,000/- p.m. However, the Tribunal has considered the documents produced at Exs.P.9 to P.13 and has assessed the income at Rs.10,000/-
p.m. considering the aspect that the deceased is a skilled labour, which is unreasonable. Hence, he seeks for dismissal of the appeal.
8. In the back drop of the contentions taken by learned counsel for both parties, it is relevant to state that there is no dispute with regard to the death of the deceased Rajanna, who was passing the Tumkuru – Sira N.H.48 road at 8.30 p.m. on 21.11.2015. It is also not in dispute that the deceased was working as a car driver and an electrician. The appellants - claimants have not produced any relevant documents to show the income of the deceased was Rs.25,000/- p.m. In the absence of any document with regard to the income, the Tribunal has rightly considered the fact that the deceased was a skilled labour and has assessed the monthly income at Rs.10,000/-. As the income assessed by the Tribunal is just and proper, it need not be intervened even though the learned counsel for the appellants has taken through the evidence of PW.1 and documents Exs.P.9 – P.13.
9. The deceased along with one Lakkanna were about to cross the Tumkuru – Sira N.H.48 road at the relevant point of time on 21.11.2015 at about 8.30 p.m. Ex.P.4 is the mahazar said to be conducted by the Investigating Officer in order to lay the charge sheet against the accused. Ex.R.1 said to be the certified copy of the spot sketch was drawn by the concerned authority in order to lay the charge sheet against the driver of the offending vehicle as the major part of the negligence was on the part of the offending vehicle. The same indicates the spot where the accident has occurred and how the offending Car is said to have hit on the deceased Rajanna who sustained grievous injuries and died on the spot itself is clearly depicted. Therefore, I find that the Tribunal has gone through the contents of Ex.R.1 and has come to the conclusion relating to the negligence on the part of the deceased at 25%. The same has been observed in para No.13 of the impugned judgment and the same has been stated based upon the evidence of PWs.1 and 2 and so also the contents of Ex.R.1 said to be the spot sketch drawn by the concerned authorities. Therefore, the negligence of the deceased would be 25% as held by the Tribunal, which cannot be interfered by revisiting the impugned judgment even though the learned counsel for the appellants has taken various contentions for re-appreciation. Therefore, the contributory negligence of 25% on the part of the deceased held by the Tribunal based on Ex.R.1 spot sketch are found to be just and proper and the same would be maintained and does not arise for intervention in the aforesaid aspect. But the Tribunal has not considered keeping in view the ratio of relevance of the judgment rendered by Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi reported in AIR 2017 SC 5157. The Apex Court has determined the applicable percentages for determination of future prospects, in case of deceased with a permanent job, and has also added the category where the deceased was self-employed or on a fixed salary, to be as follows:
Therefore, the same has to be considered and requires intervention by this Court. The deceased Rajanna was aged 32 years at the relevant point of time when he met with the accident and died. Therefore, it is relevant to add 40% towards future prospects. Accordingly, it works out at Rs.14,000/- and from out of that amount, keeping in view the above extracted table, 50% is required to be deducted towards his personal expenses. Accordingly, the income of the deceased would be Rs.7,000/- p.m. (10,000/- + 40% - 50%) and the compensation towards loss of dependency works out to (7,000/- x 12 x 16) = Rs.13,44,000/- as against Rs.9,60,000/- awarded by the Tribunal.
10. Insofar as the compensation towards funeral and transportation of dead body is concerned, the Tribunal has awarded in a sum of Rs.10,000/- towards conventional heads. Keeping in view the ratio of reliance of the Hon’ble Supreme Court in Pranay Sethi’s case, it is just and proper to interfere in this aspect and award another Rs.20,000/- towards the said head. Hence, the total compensation of Rs.30,000/- is awarded towards the said head to meet the ends of justice.
11. Rest of the compensation awarded towards love and affection in a sum of Rs.1,00,000/- is found to be just and proper and same shall be maintained intact.
12. Accordingly, the appellants are entitled for total compensation in a sum of Rs.14,74,000/- and by deducting 25% contributory negligence on the part of the deceased, the net total compensation comes to Rs.11,05,500/- (Rs.14,74,000 - Rs.3,68,500/-) as against Rs.8,02,500/-
awarded by the Tribunal. The enhanced compensation comes to Rs.3,03,000/-*.
13. In view of the above observations, the judgment and award rendered by the Tribunal is modified and enhanced as stated supra. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed in part. Consequently, the appellants are entitled to enhanced compensation of Rs.3,03,000/-* with interest at the rate of 9% p.a.
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