IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE MISCELLANEOUS FIRST APPEAL NO.12041 OF 2011 (MV) BETWEEN:
1. SMT.SAVITHA.K W/O LATE NAGARAJU C.N. NOW AGED ABOUT 26 YEARS 2. BABY RAKSHITHA D/O LATE NAGARAJU C N , NOW AGED ABOUT 5 ½ YEARS 3. SMT.HOMBALAMMA W/O LATE NINGE GOWDA NOW AGED ABOUT 67 YEARS 4. SRI.RAMESH C.N.
S/O LATE NINGE GOWDA NOW AGED ABOUT 36 YEARS, ALL ARE R/AT NO.65, 11TH MAIN, N.R.LAYOUT, VIRATNAGAR, BOMMANAHALLI, BANGALORE – 560 008 SINCE THE APPELLANT NO.2 IS MINOR HENCE, REPRESENTED BY MOTHER AND NATURAL GUARDIAN SMT.SAVITHA K ... APPELLANTS (BY SRI.MOHAMMED SHERIFF, ADV.) AND:
1. ICICI LOMBARD GENERAL INSURANCE CO. LTD ., PRESTIGE CORNICHE, 1ST FLOOR, NO.62/1, RICHMOND ROAD, BANGALORE – 560 025 2. MR.S.P.SWAMINATHAN S/O S.K.PONNUSWAMY M/S S.P.S. TRAVELS, DEVANAHALLI, BANGALORE RURAL DISTRICT ... RESPONDENTS (BY SRI. H N KESHAVA PRASHANTH, ADV. FOR R1;
NOTICE TO R2 IS DISPENSED WITH V/O DTD:03.07.2015) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:12.4.2011 PASSED IN MVC NO.7130/2009 ON THE FILE OF IX ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT-7, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Wife and Children made a claim petition for the death of breadwinner in the road traffic accident that took place on 27TH August 2009 when the deceased was proceeding on his bicycle in front of St.John’s Bus-bay, Sarjapura Road at that time the bus bearing registration number KA 43 7777 being driven in high speed and in a rash and negligent manner dashed against the cyclist resulting in the rider suffering grievous injuries and later succumbed to injuries. In the claim petition filed by the dependents, the IX Additional Senior Civil Judge, Small Causes Court, Bangalore by its judgment and award dated 12th April 2011 passed in MVC No.7130 of 2009 awarded compensation of Rs.4,51,000/- by assessing the income at Rs.3,000/- per month. Against the same this appeal is filed seeking enhancement in the compensation.
2. The ground taken by the learned counsel for the appellants is that the income of the deceased should have been taken on the basis of Exhibit P9 issued by the employer wherein it is stated that the deceased was working as house-keeping staff and was paid Rs.4,900/- per month. The same should have been taken by the court below, instead it is taken at Rs.3,000/- per month which is lower in side. It is his further submission that the appellants are entitled for future prospects in view of the judgment of Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI reported in 2017 SCC ONLINE SC 1270. Hence, he seeks for enhancing the compensation suitably.
3. The learned counsel appearing for the respondent- Insurer supports the order of the court below and submits to dismiss the appeal.
4. Heard the learned counsel for the parties and gone through the Judgment of the court below and the lower court records made available before this Court. Insofar as the income is concerned, Exhibit P9 has been rejected by the court below since the claimant has not examined its author. It is to be presumed that in the cases of this nature where the deceased who was working as Office-boy or as a menial job, normally the claimants, who also may be illiterates and belong to poorer section, would not be in a position to prove the income. Under such circumstances, the court has to assess the income pragmatically by considering the year of accident, age of the deceased, number of dependents, place of residence, etc. This Court, with relevance to the accident of the year 2009 assessed the notional income at Rs.4,000/- per month. Accordingly the same is taken. As per the decision of the Hon'ble Supreme Court in the case of PRANEY SETHI (supra), 40% future prospects is to be added and if the same is added, it comes to Rs.5,600/-. Accordingly, the calculation would be Rs.5,600/- x 12 x 16 x 2/3 which comes to Rs.7,16,800/-, the same is awarded under the head loss of dependency as against Rs.3,84,000/- awarded by the Tribunal. Under conventional heads, all put together, Rs.70,000/- is awarded. The amount of Rs.10,000/- awarded by the Tribunal under the head love and affection is retained. In total the compensation would be Rs.7,96,800/- as against Rs.4,51,000/- awarded by the court below. The enhanced amount carries interest at the rate as is awarded by the Tribunal.
5. Appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn