IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ M.F.A. NO.8059 OF 2014 [MV] BETWEEN 1. RESHMA N., W/O. LATE MEHABUB BASHA, AGED 25 YEARS, 2. ASMIYA, D/O. LATE MEHABUB BASHA, AGED 3 YEARS, 3. FAKRUDDIN SAB, S/O. LATE SUBHAN SAB, AGED 54 YEARS, 4. HASEENA, W/O. FAKRUDDIN SAB, AGED 50 YEARS, ... APPELLANTS (BY SRI. RAGHAVENDRA E.P., FOR SRI. RAVISHANKAR S.S., ADVOCATES) AND 1. THE BRANCH MANAGER, ICICI LOMBARD GEN INS CO. LTD, NO.89, S.V.R. COMPLEX, 2ND FLOOR, HOSUR MAIN ROAD, MADIWALAL, BANGALORE-560 027.
2. MR. DANDAPANI A., S/O. ARUMUGAM, NO.93/3, 1ST CROSS NEAR, VINAYAKA TALKIES, MARATHAHALLI, BANGALORE-560 036.
... RESPONDENTS [BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R-1 R-2 SERVED] THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.08.2014 PASSED IN MVC NO.4155/2013 ON THE FILE OF THE 19TH ADDITIONAL SMALL CAUSES JUDGE, 41ST ACMM, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
* * * THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:
ORDER Though this appeal is listed for admission, the same is taken up for final disposal with the consent of both the learned counsel.
This appeal is preferred by the claimants in MVC No.4155/2013, seeking enhancement of compensation awarded by the Tribunal for the death of one Mehabub Basha @ Mehabub Sab aged about 28 years, wherein the Tribunal awarded a total compensation of Rs.1,32,500/- with interest at 6% per annum.
2. I have heard the learned counsel appearing for the appellants and the learned counsel appearing for Respondent No.1/Insurance Company.
3. The appellants/claimants are the wife, minor daughter and the parents of the deceased. It is the case of the claimants that on 19.04.2013, at about 5.45 a.m., when the deceased Memabub Basha and other workers were working on the cable wire at Budigere Road, near Agalakote Cross, at that time, a car bearing registration No.KA-01-C-4515 driven by its driver came in a high speed and in a rash and negligent manner and dashed to Mehabub Basha and other workers, as a result of which, Memabub Basha and one Thimmabhovi sustained injuries and died at the spot.
4. The claimants being the wife, minor daughter and the parents of the deceased filed a claim petition in MVC No.4155/2013 seeking a total compensation of Rs.25 Lakhs for the death of Mehabub Basha. The claimants in MVC Nos.4154 and 4155 of 2013 got examined two witnesses and got marked the documents at Exs.P-1 to P-18. The claim petition was contested by the respondents. However, no evidence was placed and no documents were marked on behalf of the respondents.
5. The Tribunal after considering the evidence and material on record, passed a common judgment and in so far as MVC No.4155/2013 is concerned, a total compensation of Rs.13,52,500/- was awarded with interest at 6% per annum.
6. It is the contention of the learned counsel for the appellants/claimants that the deceased was working as a Supervisor in MTR Engineering Services at Bengaluru and he was earning a sum of Rs.20,000/-
per month and therefore the income taken by the Tribunal at Rs.5,000/- per month is on the lower side. He would submit that, to substantiate the earning of the deceased, the appellants/claimants have produced Ex.P-18 i.e., the Certificate issued by the MTR Engineering Services, which shows that the deceased was earning a sum of Rs.20,000/- per month. Therefore he submits that the total compensation awarded by the Tribunal is on the lower side and accordingly seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
7. The learned counsel appearing for the Respondent No.1/Insurance Company submitted that the Tribunal having considered the oral and documentary evidence on record, has taken the income of the deceased at Rs.5,000/- per month since the claimants have failed to examine any person to prove the certificate at Ex.P18. He further submitted that the Tribunal has awarded a higher compensation under the ‘conventional heads’ and therefore submits that there are no justifiable grounds to enhance the compensation. Accordingly, he seeks to dismiss the appeal.
8. It is the case of the appellants/claimants that the deceased Mehabub Basha while working on the cable wire along with other workers on 19.04.2013 at about 5.45 a.m., a car bearing registration No.KA- 01-C-4515 driven by its driver came in a high speed and in a rash and negligent manner and dashed against him and another person by name Thimmabhovi, on account of which, they sustained injuries and died at spot. The negligence on the part of the driver of the car in question and the fact that the said car was insured with the 1st respondent herein is not in dispute.
9. It is the case of the claimants that the deceased was aged about 28 years and he was earning a sum of Rs.20,000/- per month by working as a supervisor in MTR Engineering Services, Bangalore. To establish the income, they have produced Ex.P-18 i.e., the Certificate issued by the MTR Engineering Services. It is no doubt true that in the certificate, the earning of the deceased is shown as Rs.20,000/- per month. However, the certificate is issued and signed by one of the partner of MTR Engineering Services. None on behalf of the so called MTR Engineering Services has been examined. The Tribunal has rightly observed that mere producing the certificate on a letterhead is not sufficient to hold the income of the deceased. The notional income of the deceased is taken at Rs.5,000/- per month is not proper. In view of the fact that the accident occurred in the year 2013, the notional income of the deceased is taken at Rs.8,000/- per month. In view of the judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in 2017 ACJ 2700, 40% of the income shall be added towards future prospects and after deducting 1/4th of the income towards personal expenses and adopting the multiplier of 17, the total compensation towards ‘loss of dependency’ would be Rs.17,13,600/- (Rs.8,400/- x12x17). The appellants/ claimants are entitled for a total compensation of Rs.70,000/- towards ‘loss of consortium’, ‘loss of estate’ and ‘funeral expenses and transportation etc.,’ The compensation awarded towards ‘loss of love and affection is unaltered. Hence, the appellants are entitled for a total compensation of Rs.18,23,600/- as against Rs.13,52,500/- awarded by the Tribunal. Hence, I pass the following :
ORDER The appeal is allowed in part.
The judgment and award dated 14.08.2014 passed by the 19th Additional Small Causes Judge, 41st ACMM, Bengaluru in MVC No.4155/2013 is hereby modified.
The appellants/claimants are entitled for a total compensation of Rs.18,23,600/- with interest at 6% per annum as against Rs.13,52,500/- awarded by the Tribunal from the date of petition till its realization.
The 1st respondent-Insurance Company shall deposit the compensation amount within a period of four weeks from the date of receipt of a copy of this judgment.
Sd/- JUDGE Snc