IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.8010/2015 (MV) BETWEEN:
1. MR. SHEIK ABDUL FAYAZ @ ABDUL FAYAZ AGE: 44 YEARS S/O. ABDUL REHAMAN CHENNAKESHWANAGAR 2. MRS. MEHRUN AGE: 39 YEARS W/O. SHEIK ABDUL FAYAZ @ ABDUL FAYAZ BOTH ARE RESIDING AT NO.670, ‘B’ BLOCK SUBHAS NAGAR BENGALURU – 560 068 ... APPELLANTS (BY SMT. SUNITHA B.H. & SRI SURESH M.LATUR, ADVOCATES) AND:
1. N. BAIYAPPA S/O. NAGAPPA NO.496, 4TH CROSS CHENNAKESHAVANAGAR ELECTRONIC CITY POST BENGALURU – 561 229 2. THE REGIONAL MANAGER SRIRAM GENERAL INSURANCE CO. LTD. 3RD FLOOR, MONARCH CHAMBER INFANTRY ROAD BENGALURU … RESPONDENTS (BY SRI B.PRADEEP, ADVOCATE FOR R2 NOTICE TO R1 IS D/W VIDE ORDER DT:23.10.2017) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 16.04.2015 PASSED IN MVC No.947/2014 ON THE FILE OF II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, MACT, BENGALURU, PRAYING TO PARTLY ALLOW THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed for admission, the same is taken up for final disposal with the consent of both the learned counsel.
2. The claimants have filed this appeal seeking enhancement of compensation awarded by the tribunal in MVC No.947/2014 on the file of Motor Vehicles Accident Claims Tribunal, Bengaluru, wherein the tribunal has awarded a compensation of Rs.9,96,000/- (Rupees Nine Lakhs Ninety Six Thousand only) for the death of the son of the claimants.
3. I have heard the learned counsel appearing for the appellants and the learned counsel appearing for respondent No.2-Insurance Company.
4. Briefly stated, the facts of the case are that on 11.01.2014 at about 6.45 a.m., when the deceased was standing beside his motor cycle bearing registration No.KA-02-Q-9836 on the road side on new road of Chennakeshavanagar, at that time, a Tipper Lorry bearing registration No.KA-51-2615 driven by its driver in a rash and negligent manner came from Hosur main road and dashed against the deceased, as a result of which, he sustained grievous injuries. He was immediately shifted to Blossom Hospital, Bengaluru and later shifted to Sanjay Gandhi Hospital and from there shifted to Nimhans, wherein he was declared brought dead.
5. The claimants are the parents of the deceased.
Before the tribunal a total compensation of Rs.20,00,000/- (Rupees Twenty Lakhs only) was sought. On behalf of the claimants PW-1 to PW-4 were examined and Ex.P1 to Ex.P11 were marked in evidence. No evidence was led on behalf of the respondents.
6. The tribunal after considering the evidence and material on record, awarded a total compensation of Rs.9,96,000/- (Rupees Nine Lakhs Nineteen Thousand only) with interest at the rate of 6% per annum from the date of petition till deposit.
7. Learned counsel for the appellants contended that the deceased was working as a loader and unloader at S.J.S. Steel Traders and he was drawing a sum of Rs.16,500/- per month as salary. It is submitted that the employer of the deceased was examined as PW-3 and the salary certificate is marked as Ex.P9. Therefore, it is contended that the tribunal was not justified in taking the income as Rs.7,000/- per month by ignoring the said evidence on record. It is also contended that the total compensation awarded by the tribunal is on a lower side and accordingly, the learned counsel for the appellants seeks to enhance the compensation awarded by the tribunal.
8. Per contra, the learned counsel appearing for respondent No.2 vehemently contended that the salary certificate at Ex.P9 issued by PW-3 cannot be taken into consideration since PW-3 has admitted that he has not maintained the accounts with regard to the alleged S.J.S. Steel Traders and he has also not maintained the salary of the deceased in the books of accounts and vouchers. It is therefore contended that the tribunal was justified in not accepting the evidence of PW-3 and Ex.P9. The learned counsel for respondent No.2 further submits that the compensation awarded by the tribunal does not call for any interference and seeks to dismiss the appeal.
9. The accident in question involving the Tipper Lorry bearing registration No.KA-51-2615 which was insured with respondent No.2 and the actionable negligence on the part of the driver of the said lorry is not seriously disputed.
10. It is the contention of the learned counsel for the appellants that the deceased was working as Steel loader and unloader at S.J.S. Steel Traders under PW-3 and he was drawing a salary of Rs.16,500/- p.m. Ex.P9 is the salary certificate issued by PW-3. The tribunal has noticed that though PW-3 admitted that the aforesaid company was an income tax assessee, however, no documents were produced to prove the income and expenditure including the salary and wages. There is nothing in the books of accounts to show that the deceased was being paid a salary of Rs.16,500/- p.m. According to PW-3, the company had yearly turnover of Rs.1.5 crores, however, there is no piece of evidence to show that the company had the said turnover and the deceased was being paid the aforesaid salary. In that view of the matter, the tribunal was justified in not accepting Ex.P9 in the absence of any corroborative piece of evidence.
11. The tribunal has assessed the monthly income of the deceased as Rs.7,000/-. However, considering the facts and circumstances of the case, the year of accident and the avocation of the deceased who was a bachelor at the time of accident, I deem it appropriate to take the notional income of the deceased at Rs.8,500/- per month.
12. In view of the decision of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Sri. Pranay Sethi and others reported in 2017 ACJ 2700, 40% of the income has to be added towards future prospects. At the time of accident, the deceased was aged about 19 years. The appropriate multiplier applicable to the age of the deceased is 18. After deducting 50% towards personal expenses, the same comes to Rs.5,950/- (Rs.8,500 + Rs.3,400 = Rs.11,900 X 50/100 = Rs.5,950). The claimants are therefore entitle for a compensation of Rs.12,85,200/- (Rupees Twelve Lakhs Eighty Five Thousand Two Hundred only) (5,950 X 12 X 18) towards loss of dependency as against Rs.9,45,000/- awarded by the tribunal.
13. The claimants being parents of the deceased, a sum of Rs.30,000/- is awarded towards loss of estate, funeral expenses and obsequies. A sum of Rs.20,000/- each is awarded towards loss of love and affection. The appellants are therefore entitled for a total compensation of Rs.13,55,200/- (Rupees Thirteen Lakhs Fifty Five Thousand Two Hundred only) as against Rs.9,96,000/-
(Rupees Nine Lakhs Ninety Six Thousand only) awarded by the tribunal. Accordingly I pass the following order:
i) The appeal is allowed in part.
ii) The impugned Judgment and Award dated 16.04.2015 passed in MVC No.947/2014 on the file of Motor Vehicles Accident Claims Tribunal, Benglauru is hereby modified.
iii) The appellants are entitled for a total compensation of Rs.13,55,200/- as against Rs.9,96,000/- awarded by the tribunal, with interest at the rate of 6% p.a. from the date of petition till deposit.
iv) The apportionment and disbursement of the compensation shall be in terms of the award passed by the tribunal.
v) The respondent No.2 shall deposit the compensation amount within a period of four weeks from the date of receipt of a copy of this order.
SD/- JUDGE KLV