IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 6504 OF 2015 (MV) BETWEEN 1. MRS. RIMI NAYAK W/O LATE KUMUTI NAYAK AGED 46 YEARS 2. BARUN NAYAK S/O LATE KUMUTI NAYAK AGED 22 YEARS BOTH ARE R/AT SIRINGIA VILLAGE GANDRIGAN TOWN, SARANGAD P.S. KANDAMAL DISTRICT, ORISSA STATE.
... APPELLANTS (BY SRI.D. S. SRIDHAR - ADVOCATE) AND 1. SUDHA JACOB W/O JACOB MATHEN MAJOR R/AT NO.71, FERNS CITY DODDANAKKUNDI MARATHHALLI BENGALURU – 560 037.
2. M/S HDFC ERGO GEN. INSURANCE CO. LTD H.M. GENEVA HOUSE FIRST FLOOR CUNNINGHAM ROAD BENGALURU-560091 REPRESENTED BY IT’S MANAGER.
... RESPONDENTS (BY SRI K.S. HARISH – ADVOCATE FOR R-1; SRI. O. MAHESH – ADVOCATE FOR R-2;) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.06.2015 PASSED IN MVC NO. 2414/2013 ON THE FILE OF THE 23RD ADDITIONAL SMALL CAUSES JUDGE, 21ST ACMM, MACT, COURT OF SMALL CAUSES, BENGALURU ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellants and the learned counsel for respondents 1 & 2 and perused the records.
2. The legal heirs, who are the dependents of the deceased Bidur Nayak have preferred this appeal, being not satisfied with the quantum of compensation awarded by the Tribunal in the impugned judgment dated 06.06.2015 in MVC No.2414/2013, seeking enhancement of compensation.
3. The factual matrix is that on 10.02.2013 at about 7.30 p.m., when the deceased Bidur Nayak was standing on the left side of NH-48 road near Lakkenahalli Hand Post ‘U’ Turn to cross the road, at that time the driver of a Tata Safari bearing Regn.No.KA-53-P-2350 coming from Kunigal towards Bangalore in a rash and negligent manner and at a high speed, had dashed against the deceased. As a result, the deceased fell down and sustained grievous injuries and later succumbed to the injuries. He was first taken to Mathru Shree Hospital for treatment and then was shifted to Rajarajeswari Hospital, Kengeri, for postmortem. The Kudur police had registered a case in Cr.No.34/2013 against the rider of the Tata safari, under Sections 279 and 304-A of IPC. The claimants had shifted the body of the deceased to their native place and had conducted funeral and obsequies ceremonies and had spent an amount of Rs.1,00,000/- In view of the untimely death of the deceased, his mother and unmarried brother who were the legal representatives of the deceased filed a claim petition before the Tribunal seeking compensation.
4. On issuance of notice, respondents appeared and filed their written statements and contested the petition. Based upon the pleadings, the Tribunal framed the issues. In order to prove the case, petitioner No.2 / appellant No.2 was examined as PW.1 and got marked 9 documents as per Exs.P1 to P9. Whereas respondents did not adduce any evidence on their behalf. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer. After hearing the arguments of learned counsel for the petitioners and learned counsel for respondent-insurer and after recording the findings, the Tribunal passed the impugned judgment and awarded compensation of Rs.13,87,000/- with interest @ 8% p.a. from the date of petition till the date of deposit. It is this judgment which is under challenge in this appeal.
5. The learned counsel for the appellants vehemently contended that the Tribunal has erred in assessing the income of the deceased at Rs.10,000/- despite the fact that Exhibit P7 Salary certificate which was produced revealed that he was he was working as a Security Guard at Veeranarayana Metal Alloys (P) Ltd., Solur Taluk, Ramanagar District and was earning Rs.11,000/- per month. Hence, the learned counsel contends that the assessment of the income by the Tribunal is on the lower side and needs to be enhanced. It is the further contention of the learned counsel that the deceased was aged 22 years at the time of his death. Though the Tribunal had observed that he was aged 22 years, had applied the multiplier wrongly taking the age of the mother of the deceased. But however, according to the prevailing position, the multiplier is required to be taken according to the age of the deceased. Hence, instead of ‘14’ taken by the Tribunal, the appropriate multiplier for the age of the deceased being ‘18’, the same has to be applied for calculating the compensation towards ‘Loss of dependency’. Even insofar as conventional expenses, the compensation granted by the Tribunal requires to be enhanced suitably. On all these grounds, the learned counsel for the appellants – claimants contends that the compensation awarded by the Tribunal be enhanced.
6. Per contra, the learned counsel appearing for the insurer submitted that the tribunal committed an error in adding 50% of the income towards his future prospects. Though the deceased was aged 22 years and was working as a Security Guard, his employment was not permanent. Hence, the Tribunal was wrong in adding 50%. It ought to have added 40% of his income towards his future prospects in view of the settled legal position. But however, on other aspects, the Tribunal on proper appreciation of the evidence on record has rightly assessed the income of the deceased and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
7. On careful evaluation of the material on record, it is seen that the claimants being mother and younger brother of the deceased, are the dependents of the deceased who was aged 22 years. Prior to his death, the deceased was working as a Security Guard and was earning a sum of Rs.11,000/- p.m. Hence, I find that the Tribunal was not justified in taking his income at Rs.10,000/- p.m. Accordingly, I hereby take his income at Rs.11,000/- to re-assess the compensation awarded by the Tribunal. Further, I find that the Tribunal has committed an error in adding 50% towards his future prospects. In view of the fact that the deceased was not permanently employed, I find it appropriate to add 40% of the income towards future prospects. Further, since the Tribunal committed an error in applying ‘14’ as the multiplier considering the age of the mother of the deceased, I hereby adopt the multiplier at ‘18’ considering the age of the deceased and proceed to re-assess the compensation. Hence, taking the income of the deceased at Rs.11,000/- and adding 40% towards his future prospects the income comes to Rs.15,400/-. Deducting one-half towards his personal expenses, the income would be Rs.7,700/- per month. With Rs.7,700/- p.m. as the income and applying multiplier ‘18’, the compensation towards Annual Loss of dependency is re-assessed at Rs.16,63,200/- (7700 x 12 x 18) as against Rs.8,40,000/- awarded by the Tribunal.
Further, in view of the ruling of the Apex Court in National Insurance Company Limited –vs- Pranay Sethi (AIR 2017 Supreme Court 5157), the compensation awarded by the tribunal under ‘Loss of love and affection’, ‘Funeral expenses’, ‘Transportation of dead body’ and ‘Loss of estate’ totally amounting to Rs.1,27,000/- is reduced to Rs.70,000/- under the above four heads put together. Thus, in all, the claimants are entitled to total compensation of Rs.17,33,200/- as against Rs.13,87,000/- awarded by the tribunal. The enhanced compensation would be Rs.3,46,200/-.
8. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars Compensation awarded by MACT Compensation enhanced by this Court Total
16,63,200 Funeral expenses Transportati on of dead body Loss of estate 25,000 10,000 42,000 by this Court 57,000 70,000 TOTAL 13,87,000 3,46,200 17,33,200 Thus, in all, the claimants / appellants are entitled to a total compensation of Rs.17,33,200/- as against Rs.13,87,000/- awarded by the tribunal, which shall carry interest at 8% per annum.
Accordingly, I proceed to pass the following:
O R D E R The appeal is allowed in part. In modification of the impugned judgment and award dated 6.6.2015 passed by the Tribunal in MVC No.2414/2013, the compensation payable to the claimants is enhanced from Rs.13,87,000/- to Rs.17,33,200/-. The enhanced compensation would come to Rs.3,46,200/-. The second Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimants in terms of the award, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Office to draw the decree accordingly.
SD/- JUDGE KS