IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY MFA NO. 5956/2017 (MV) C/W.
MFA NO.6810/2017 (MV) MFA NO. 5956/2017 BETWEEN:
THE REGIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., 44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BENGALURU-560 025 (BY SRI A.N. KRISHNA SWAMY, ADVOCATE) AND 1. SMT PUSHPA, W/O. LATE MANJUNATHA, AGED ABOUT 37 YEARS, 2. SMT. M. POOJA, D/O. LATE MANJUNATHA, AGED ABOUT 19 YEARS, ... APPELLANT 3. M. ROJA, D/O. LATE MANJUNATHA, AGED ABOUT 16 YEARS, ALL ARE R/AT C/O. CHINNAREDDY BUILDING, SAI NAGAR, NERALUR, ATTIBELE, BENGALURU URBAN, NATIVE ADDRESS:- NEAR KATUKARA BEEDI, CHALLAKERE, CHITRADURGA-577 502 R3 IS MINOR REPRESENTED BY HER MOTHER-R1 4. SATHISH M., S/O. MOORTHY OLD NO.45, NEW NO.53, ANNANAGAR, AMMOR, WALAJA TQ., TAMIL NADU-632 501.
... RESPONDENTS (BY SRI A. SREENIVASAIAH, ADVOCATE FOR R1 TO R3) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.06.2017 PASSED IN MVC NO.3502/2016 ON THE FILE OF THE VII ADDITIONAL JUDGE AND XXXII ACMM, COURT OF SMALL CAUSES, BENGALURU (SCCH-3) AWARDING COMPENSATION OF RS.11,29,200/- WITH INTEREST AT 8% PER ANNUM FROM THE DATE OF PETITION TILL REALIZATION.
MFA NO. 6810/2017 BETWEEN:
1. SMT. PUSHPA, W/O. LATE MANJUNATHA, AGED ABOUT 37 YEARS, 2. SMT. M. POOJA, D/O. LATE MANJUNATHA, AGED ABOUT 19 YEARS, 3. M. ROJA, D/O. LATE MANJUNATHA, AGED ABOUT 16 YEARS, ALL ARE R/AT C/O. CHINNAREDDY BUILDING, SAI NAGAR, NERALUR, ATTIBELE, BENGALURU URBAN, NATIVE ADDRESS:- NEAR KATUKARA BEEDI, CHALLAKERE, CHITRADURGA SINCE the 3RD APPELLANT IS MINOR REPRESENTED BY 1ST APPELLANT AS NATURAL GUARDIAN (BY SRI A. SREENIVASAIAH, ADVOCATE) AND 1. SATHISH M., S/O. MOORTHY OLD NO.45, NEW NO.53, ... APPELLANTS ANNANAGAR, AMMOR, WALAJA TQ., TAMIL NADU-632 501.
2. THE MANAGER, THE ORIENTAL INSURANCE CO. LTD., R.O. NO.44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BENGALURU-560 025 ... RESPONDENTS (BY SRI A.N. KRISHNA SWAMY, ADVOCATE FOR R2) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.06.2017 PASSED IN MVC NO.3502/2016 ON THE FILE OF THE VII ADDITIONAL JUDGE AND XXXII ACMM, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Sri A. Sreenivasaiah, learned counsel for the claimants submits that M.F.A. No.6810/2017 arises out of the same judgment and award as M.F.A. No.5956/2017, therefore, M.F.A. No.6810/2017 can be heard and disposed of along with M.F.A. No.5956/2017. Hence, both the appeals are heard together.
2. The appeal in M.F.A. No.5956/2017 is filed by the Insurance Company and the appeal in M.F.A. No.6810/2017 is filed by the claimants against the judgment and award dated 19.06.2017 passed in M.V.C. No.3502/2016 by the VII Additional Judge MACT & XXXII ACMM Court of Small Causes, Bengaluru, awarding compensation of Rs.11,29,200/- with 8% interest per annum from the date of petition till realization.
3. Learned counsel for the Insurance Company contends that the Tribunal committed an error in ignoring mandate of Section 149(1) of M.V. Act read with Section 34 of Code of Civil Procedure while determining the rate of interest. Further he contends that the claimants themselves have stated that the deceased was a businessman, therefore, the compensation towards future prospects is not applicable to businessman and prays to set aside the impugned judgment and award.
4. For the purpose of awarding compensation on future prospects I have heard the learned counsel for both the parties.
5. The Hon’ble Supreme Court in the judgments in Reshma Kumari’s case held that the future prospects has to be considered for the purpose of awarding compensation to stable employment, whereas, the businessman is not an employee. Under this circumstance, the Insurance Company succeeds to the extent that the claimants are not entitled for the compensation under the head future prospects in the instant case.
6. Learned counsel for the claimants contends that the compensation awarded by the Tribunal is on the lower side, since the claimants have claimed income of the deceased at Rs.30,000/- per month, but the same has not been assessed by the Tribunal.
7. The contention of the claimants that the deceased was earning Rs.30,000/- per month cannot be considered since they have not proved the same by producing documentary evidence. When the person is earning more than Rs.30,000/- necessarily he must have been a tax payer. Non-production of any income proof disentitles the claimants from claiming to assess the income of the deceased at Rs.30,000/- per month. While assessing the income of the deceased the Court has to consider the area of residence of his family and standard of living. In the instant case the residence of the claimants are in Bengaluru Urban which is reasonably costly area, unless the person earns Rs.100/- per day per person he could not survive. Taking the said basis the income of the deceased could be taken as Rs.9,000/- per month. Including the deceased there were four persons in the family of the deceased. As per the judgment of Supreme Court in Sarla Verma’s case 1/3rd of the income of the deceased has to be deducted towards personal expenses of the deceased, as dependents are three in number. Accordingly, if 1/3rd is deducted it comes to Rs.6,000/-per month. The Tribunal has rightly applied the multiplier of 14 considering the age of the deceased at the time of accident. Hence, the calculation would be Rs.6,000/- x 12 x 14 = Rs.10,08,000/-. The same has been awarded towards loss of dependency. Further the claimants are entitled towards loss of love and affection at Rs.20,000/- each, Rs.40,000/- towards conventional heads and Rs.20,000/- towards transportation of dead body. In Total, the claimants are entitled to Rs.11,28,000/- as against Rs.10,19,200/-
awarded by the Tribunal. As per Section 149(1) read with Section 34 of C.P.C., 6% interest on the enhanced compensation is awarded in the place of 8% interest awarded by the Tribunal.
8. The impugned judgment and award passed by the Tribunal is hereby set aside and modified to the above extent only. Accordingly the appeal filed by the Insurance- Company and the appeal filed by the claimants for enhancement of the compensation stand disposed of.
Sd/- JUDGE SBS*