IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MRS.JUSTICE S.SUJATHA AND THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ M.F.A. No.5679/2014 [MV] BETWEEN :
1. Smt.Rathnamma w/o late Gangappa Aged about 40 yers.
2. Smt.Lakshmi d/o late Gangappa Aged about 23 years.
3. Smt.Latha, d/o late Gangappa Aged about 20 years.
4. Kum.Usha,d/o late Gangappa Aged about 17 years.
5. Ravi Kumar Aged about 13 years.
Appellants No.4 and 5 are the Minors represented by their Mother and natural guardian Smt.Rathanamma.
6. Sri Muninarasaiah s/o late Doddanarashimaiah Aged about 74 years.
7. Smt.Sanjivamma w/o Muninarasaiah Aged about 69 years.
All are r/a Nellagadaranaalli Village, Yeswanathapura Hobli Bangalore North Taluk-560022. .. Appellants (By Sri P Dhananjaya, Advocate) AND 1. The Managing Director KSRTC, K H Road Shanthinagar Bangalore-560027.
2. The Divisional Manager KSRTC, KH Road Shanthinagar Bangalore-27 (RC owner of KSRTC Iravatha Bus bearing Regn. No.KA-01/F-9077.
3. The Manager United India Insurance Co. Ltd., No.19-91/1 South End Road Basavanagudi Bangalore-4 Policy No.070400/31/10/1 0003231. .. Respondents (By Smt.Sumangala A Swamy, Advocate for R1 & R2, Sri K Suresh, Advocate for R3) This MFA is filed u/s 173(1) of MV Act against the judgment and award dated 12/7/2013 passed in MVC.No.8934/2010 on the file of the 18th Additional Judge, MACT, Court of Small Causes, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This M.F.A. coming on for final orders this day, the MOHAMMAD NAWAZ J, delivered the following:
J U D G M E N T Appellants are the claimants in MVC No.8934/2010 on the file of the 18th Additional Judge, MACT, Court of Small Causes, Bangalore. The present appeal is filed seeking enhancement of compensation awarded therein, whereby the Tribunal awarded a total compensation of Rs.7,02,000/- for the death of one Gangappa in a road traffic accident.
2. We have heard the learned counsel appearing for the appellants and learned counsel appearing for the respondents.
3. The case of the claimants is that on 15.10.2010 at about 11.00 p.m. when Gangappa was riding his cycle on Bangalore – Tumkur main road at Karavali Hotel junction, driver of KSRTC Iravatha bus bearing Regn. No.KA-01/F-9077 came from Bangalore to Tumkur main road with high speed and in a rash and negligent manner and dashed against Gangappa, as a result of which, he died on the spot. It is the further case of the appellants that the deceased was hale and healthy and he was earning Rs.25,000/- p.m. by cultivating the land and doing agricultural work and another sum of Rs.6,000/- p.m. by working in a private factory and he was contributing the entire income for the maintenance of the family.
4. Claimants being the wife, children and parents of the deceased filed a claim petition claiming a total compensation of Rs.75,00,000/- for the death of Gangappa. On behalf of the claimants, PWs.1 to 3 were examined and Exs.P1 to P15 were marked. The claim petition was opposed by the respondent/Insurance Company. RW1 was examined and Ex.R1 was marked on behalf of respondent/Insurance Company.
5. The Tribunal after considering the oral and documentary evidence on record awarded a total compensation of Rs.7,02,000/- under the following heads:
Loss of dependency - Rs.6,72,000/-
Transportation of the dead body and funeral expenses - Rs. 10,000/-
Loss of consortium to the 1st petitioner - Rs. 10,000/-
Loss of estate - Rs. 10,000/-
Total Rs.7,02,000/-
6. It is the contention of the learned counsel for the appellants that the total compensation awarded is on the lower side inasmuch as the Tribunal was not justified in taking the notional income of the deceased as Rs.5,000/- p.m. ignoring the material evidence on record. It is his contention that the deceased was earning Rs.25,000/- p.m. from agriculture and another Rs.6,000/- p.m. by working in a private factory. It is also contended that the Tribunal has not awarded any compensation towards future prospects and the total compensation awarded under the conventional heads are also on the lower side. Accordingly, learned counsel seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
7. Per contra, learned counsel appearing for respondent No.3/Insurance Company would justify the award passed by the Tribunal contending that the same is just and reasonable and does not require any interference and accordingly seeks to dismiss the appeal.
8. It is the case of the claimants that when the deceased, Gangappa, was riding his cycle on Bengaluru – Tumkur main road, he met with an accident owing to the actionable negligence on the part of the driver of KSRTC Iravatha bus bearing Regn. No.KA-01/F-9077. The accident in question involving the aforesaid KSRTC bus and the death of Gangappa in the said accident as a result of rash and negligent driving by its driver, is not in dispute. It is also not disputed that the said KSRTC bus was insured with respondent No.3 herein.
9. It is the submission of the learned counsel appearing for the appellants that the deceased was earning a sum of Rs.25,000/- p.m. by doing agriculture and another sum of Rs.6,000/- p.m. by working in a private factory. Claimants have produced and marked Ex.P11-RTC extracts. However, there is no proof with regard to the actual income of the deceased. Claimants have also not substantiated the income of the deceased that he was earning Rs.6,000/- per month by working in a private factory.
10. PW1 is the father of the deceased. PW2 is the wife of the deceased. PW3 is an eye witness to the accident. Apart from the oral testimony of PW1 and PW2, there is no other convincing evidence to substantiate the income of the deceased as claimed by the claimants. In the absence of clear proof of income, the notional income of the deceased could be taken as Rs.5,500/- p.m. considering the year of accident and in the facts and circumstances of the case as against Rs.5,000/- p.m. taken by the Tribunal.
11. The Hon’ble Apex Court in the case of National Insurance Co. Ltd. –vs- Pranay Sethi and others reported in AIR 2017 SC 5157 has held at para 61 (iv) that in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years.
12. The Hon’ble Apex Court in the case of Hem Raj –vs- Oriental Insurance Co. Ltd. and others reported in 2018 ACJ 5 has held that there cannot be distinction where there is positive evidence of income and where minimum income determined on guess work in the facts and circumstances of a case. Both the situations stand at the same footing.
13. Considering the above decisions of the Hon’ble Apex Court, addition of 40 per cent to the income assessed by the Tribunal is required to be made. The age of the deceased being 41 years as on the date of accident, appropriate multiplier is `14’. Considering the number of dependents, 1/5th of the income has to be deducted towards personal expenses of the deceased. Therefore, the total loss of dependency is arrived at Rs.10,34,880/- (5,500 + 40% = 5,500/- + 2,200/- = 7,700/- deducting 1/5th = Rs.6,160 x 12 x 14 = 10,34880/-).
14. Appellants are entitled for a compensation of Rs.70,000/- under conventional heads such as transportation of the dead body, funeral expenses, loss of estate and loss of consortium to the 1st claimant, as against Rs.30,000/- awarded by the Tribunal. Hence, in all, appellants are entitled for a total compensation of Rs.11,04,880/- as against Rs.7,02,000/-. Hence, for the foregoing reasons, we pass the following:
ORDER Appeal is partly allowed.
The judgment and award dated 12/7/2013 passed in MVC.No.8934/2010 on the file of the 18th Additional Judge, MACT, Court of Small Causes, Bangalore, is hereby modified.
The total compensation is determined at Rs.11,04,880/- as against Rs.7,02,880/- as awarded by the Tribunal which shall carry interest at the rate of 6% p.a. from the date of petition till realization.
The apportionment, disbursement shall be in terms of the order passed by the Tribunal.
Respondents No.1 to 3 are jointly and severally liable to pay the compensation.
Respondent No.3/Insurance Company herein has to indemnify respondents No.1 and 2 and shall deposit the entire compensation awarded herein within a period of four weeks from the date of receipt of copy of this judgment.
Sd/- JUDGE Sd/- JUDGE bkm