IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL No.9264 OF 2015 (MV) BETWEEN:
1. MRS. SHARADA AGED ABOUT 51 YEARS W/O. LATE LAXMAN POOJARY 2. SUMALATHA AGED ABOUT 25 YEARS D/O. LATE LAXMANA POOJARY BOTH ARE PERMANENT RESIDENT OF DERARU HOUSE PERINJE POST HOSANGADY VILLAGE BELTHANGADY TALUK PRESENTLY RESIDING AT ADYAR DOTA HOUSE ADYAR POST AND VILLAGE MANGALORE TALUK – 575 001. ... APPELLANTS (BY SRI KARUNAKAR P., ADVOCATE) AND:
1. RAJESH S/O. SHEENA POOJARY AGED ABOUT 37 YEARS RESIDING AT ULIRODI HOUSE SIDDAKATTE POST KIKKIPPADY VILLAGE BANTWAL TALUK – 574 214.
2. NITYANANDA SALIAN S/O. RAMA POOJARY RESIDING AT SRI NIDHI GANDHINAGAR MOODABIDRI – 574 214.
3. NATIONAL INSURANCE CO. LTD., 1ST FLOOR, NITHYANANDA COMPLEX NEAR BUS STAND MOODABIDRI – 574 214. ... RESPONDENTS (BY SRI S.VISHWAJITH SHETTY, ADVOCATE FOR R1; SRI GOWHAR UNNISA, ADVOCATE FOR R3;
R2-SERVED UNREPRESENTED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 04.07.2015 PASSED IN MVC NO.1159/2012 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE AND MEMBER MACT, DAKSHINA KANNADA, MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellants are before this Court in this appeal under Section 173(1) of the Motor Vehicles Act, 1988 praying for enhancement of compensation not being satisfied with the quantum of compensation awarded by the Tribunal under the judgment and award dated 04.07.2015 in M.V.C.No.1159/2012 on the file of the III Additional District Judge and Motor Accidents Claims Tribunal-IV, D.K., Mangalore.
2. The claimants are the mother and sister of the deceased Sathish. The claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the death of Sathish in a road traffic accident which occurred on 20.11.2011. It is stated that on 20.11.2011, when the deceased was proceeding in mini bus bearing Reg.No.KA-44-3063, the driver of the said bus drove the same in a rash and negligent manner and lost control of the bus which fell capsized. Due to which, the deceased suffered grievous injuries and he was in hospital for 5 days. Subsequently, on 25.11.2011, he succumbed to the injuries in the hospital. It is stated that he was a bachelor and aged 26 years as on the date of accident. It is stated that the deceased was earning Rs.6,000/- per month as supplier in Mangaladevi Hotel and Rs.50/- as batta per day.
3. On service of notice, respondent No.3- Insurance Company appeared before the Tribunal and filed its objections admitting the issuance of policy but denied the claim petition averments. It is also stated that the accident occurred due to over crowding of occupants and overloading of their belongings. It is also contended that the driver of the vehicle had no valid and effective driving licence as on the date of accident. The first claimant examined herself as PW-1 and also examined PW-2 and PW-3 apart from marking documents Ex.P1 to Ex.P10. Respondent examined RW.1 and marked documents Ex.R1 and Ex.R2.
4. The Tribunal on analyzing the material on record awarded total compensation of Rs.5,96,000/- with interest at the rate of 6% p.a., as follows:-
expenses Total 5,96,000 The Tribunal while awarding compensation had assessed the income of the deceased at Rs.5,000/- and applied multiplier of 13 taking the age of the mother of the deceased. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court in this appeal.
5. Heard learned counsel for the appellants and learned counsel for respondent No.3-Insurance Company. Perused the material on record.
6. Learned counsel for the appellants submits that the income assessed by the Tribunal for the accident of the year 2011 is on the lower side. He further submits that the Tribunal committed an error in taking into consideration the age of the mother while applying multiplier. He submits that the deceased was aged 26 years as on the date of accident and the applicable multiplier is 17. It is also his submission that the claimants would be entitled for 40% of income towards ‘future prospects’.
7. Relying upon the decision of the Apex Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED VS. NANU RAM reported in 2018 SCC ONLINE SC 1546, learned counsel for the claimants submits that the first claimant would be entitled for filial compensation of Rs.40,000/-. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for respondent No.3-Insurance Company submits that the quantum of compensation awarded by the Tribunal is just compensation, which requires no interference.
9. On hearing learned counsels and on perusal of the material on record, the only question which arises for consideration in the facts and circumstances of the case is as to whether the claimants would be entitled for enhanced compensation?
10. The answer to the above question is in the affirmative for the following reasons:-
The accident is of the year 2011. The claimants state that the deceased was working as supplier in Mangaladevi Hotel and was earning Rs.6,000/- per month as salary and Rs.50/- batta per day, totally about Rs.7,500/- per month. But the Tribunal has taken his income at Rs.5,000/- which is on the lower side. This Court and the Lok Adalath, while settling the accident claims of the year 2011 would normally take the notional income at Rs.6,500/- per month. As the claimants have not produced any material to indicate the exact income of the deceased, the same is to be determined notionally. Thus, in the instant case also, as there is no material to indicate the exact income of the deceased, it could be taken notional income at Rs.6,500/- per month. It is settled law that while adopting multiplier, the age of the deceased would be relevant but in the instant case, the Tribunal has committed an error in taking the multiplier based on the age of the mother. As the age of the deceased was 26 years, the applicable multiplier would be 17. The income of the deceased is determined at Rs.6,500/- per month. The claimants would be entitled to additional 40% of the income towards ‘future prospects’ as the deceased less than 40 years of age as held by the Apex Court in NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS (2017) 16 SCC 680 and HEM RAJ VS. ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS (2018 ACJ 5).
11. The Tribunal has awarded Rs.75,000/- on conventional heads. As per the decision in Pranay Sethi’s case supra, the claimants would be entitled for Rs.30,000/- on the ‘conventional heads’ since the deceased was unmarried. The first claimant mother would be entitled for filial consortium as per the decision of the Apex Court in Magma’s case supra. Thus, the claimants would be entitled for modified compensation as follows:
claimant No.1 Total 11,19,200 12. Thus the claimants would be entitled for a total compensation of Rs.11,19,200/- as against Rs.5,96,000/- awarded by the Tribunal with interest as awarded by the Tribunal. The appeal is allowed in part and the judgment and award passed by the Tribunal is modified to the above extent. The apportionment of the compensation and deposit would be as ordered by the Tribunal.
Sd/- JUDGE PYR