IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.9515/2015(MV) BETWEEN:
1. SMT. SHUSHEELAMMA W/O LATE RAMAIAH AGED ABOUT 47 YEARS 2. SRI R NAGESH S/O LATE RAMAIAH AGED ABOUT 25 YEARS 3. SRI R HARISHA S/O LATE RAMAIAH AGED ABOUT 23 YEARS 4. R NAVEEN S/O LATE RAMAIAH AGED ABOUT 25 YEARS APPELLANTS 1 TO 3 ARE R/AT AMBEDKAR COLONY NANGOLI VILLAGE & POST MULBAGAL TALUK KOLAR DISTRICT.
APPELLANT NO.4 IS R/AT AMBEDKAR COLONY TAMAKA KOLAR TQ AND DISTRICT. (BY SRI.SUGUNA R REDDY, ADV) ...APPELLANTS AND:
1. SRI. A.V. KRISHNA KUMAR REDDY S/O A VASUDEVA REDDY MAJOR IN AGE R/AT D. NO.24-72/3A MPN.GARDENS LAKSHMINAGAR COLONY CHITTOOR DISTRICT ANDHRA PRADESH.
2. THE BRANCH MANAGER UNITED INDIA INSURANCE CO.LTD T P HUB KRISHIKA SAMAJA BUILDING HUDSON CIRCLE N R ROAD, BANGALORE.
…RESPONDENTS (BY SRI.O MAHESH, ADV. FOR R2 R1- SERVED) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.10.2015 PASSED IN MVC NO.240/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & CJM AND MACT, KOLAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimants are in appeal praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 26.10.2015 in MVC No.240/2013 on the file of the Principal Senior Civil Judge and Motor Accident Claims Tribunal at Kolar (hereinafter referred to as 'the Tribunal' for short).
2. Claimants are wife and children of deceased Ramaiah. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of Ramaiah in a motor vehicle accident. It is stated that on 07.12.2012, when the deceased was proceeding as a pedestrian on Chennai-Bangalore road, near Tamaka of Kolar, a car bearing registration No.AP- 03/AD-2123 came in a rash and negligent manner and dashed to the deceased, who suffered grievous injuries. Immediately, he was shifted to R.L.Jalappa Hospital, Kolar and then to Government Hospital at Nangali of Mulbagal Taluk and later on he succumbed to the injuries. It is stated that the deceased was aged about 49 years as on the date of accident and was earning Rs.500/- to Rs.600/- per day by doing tailoring work.
3. On issuance of notice, the second respondent appeared before the Tribunal and filed its written statement whereas respondent No.1 remained absent and was placed ex-parte. The second respondent admitted issuance of policy in respect of the offending Car and denied the claim petition averments. Further stated that the claim is excessive and exorbitant.
4. On behalf of the claimants, the first claimant/wife of the deceased got examined herself as P.W.1 and also examined two other witnesses as P.W.2 and P.W.3 apart from marking the documents as Ex.P1 to Ex.P18 on their behalf. Respondent/insurer examined one witness as R.W.1 and got marked the documents as Ex.R1 and Ex.R2.
5. The Tribunal, on assessing the material on record awarded total compensation of Rs.8,62,000/- with interest at the rate of 6% p.a., from the date of petition till realization, on the following heads:
1. Loss of love and affection :: Rs. 40,000/-
2. Future loss of income :: Rs.6,72,000/-
3. Treatment and medical expenses :: Rs. 85,000/-
4. Funeral and obsequies expenses :: Rs. 10,000/-
5. Transportation of dead body :: Rs. 5,000/-
6. Loss of estate :: Rs. 50,000/-
Total Rs.8,62,000/-
The claimants, not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court praying for enhancement of compensation.
6. Heard the learned counsel for the appellants/ claimants and learned counsel for the respondent/insurer. Perused the material on record.
7. Learned counsel for the appellants would submit that the income of the deceased assessed by the Tribunal at Rs.6,000/- p.m., is on the lower side, which requires to be revised and enhanced. It is submitted that the deceased was working as a tailor and was earning a sum of Rs.500/- to Rs.600/- per day. In that respect, the claimants have examined P.W.2 one of the customers of the deceased. Further, the learned counsel for the appellants would submit that the Tribunal has failed to award any compensation on the head of loss of future prospects, which the claimants would be entitled for adding 25% of the assessed income. Thus, prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent/ insurer submits that the compensation awarded by the Tribunal is just compensation which needs no interference. It is his further submission that the Tribunal has deducted 1/3rd towards personal expenses of the deceased whereas the Tribunal ought to have deducted 50% towards personal expenses since the wife is the only dependant and claimants 2 to 4 are major sons of the deceased and they cannot be considered as dependants of the deceased Ramaiah. Thus, prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration in this appeal:
(i) Whether the Tribunal is justified in assessing the income of the deceased at Rs.6,000/- p.m?
(ii) Whether the claimants would be entitled for adding 25% of the assessed income towards future prospects?
(iii) Whether the Tribunal is justified in taking 1/3rd deduction towards personal expenses of the deceased?
10. Answer to point No.(i) would be in the negative and points (ii) and (iii) would be in the affirmative for the following reasons:
The accident that took place on 07.12.2012 involving the Car bearing registration No.AP-03/AD- 2123 and the accidental death of Ramaiah, husband of the first claimant is not in dispute in this appeal. The claimants are in appeal praying for enhancement of compensation. The claimants state that the deceased Ramaiah was a tailor and was earning Rs.500/- to Rs.600/- per day. But, the claimants have not placed on record any material to establish the avocation or income of the deceased. In the absence of any material to establish the exact income of the deceased, the Tribunal assessed the income of the deceased notionally at Rs.6,000/- p.m. But the same is on the lower side. This Court and the Lok Adalath, while settling the accidental claims of the year 2012 would normally assess the notional income wherever there is no material to establish the exact income, at Rs.7,000/-
p.m. In the instant case also, in the absence of any material to establish the income of the deceased, it would be appropriate to assess the notional income of the deceased at Rs.7,000/- p.m.
12. The deceased was aged about 44 years as on the date of accident. The claimants have placed on record Ex.P13/Election Commission Voters ID wherein the birth year of the deceased is shown as 1969. The Tribunal committed an error in not awarding any compensation on the head loss of future prospects. The Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 has made it clear that wherever the deceased was aged between 40 to 50 years, the claimants would be entitled for adding 25% of the assessed income towards future prospects. Thus, the claimants would be entitled for adding 25% of the assessed income towards future prospects.
13. Learned counsel for the respondent/insurer contended that the Tribunal ought to have taken deduction of 50% towards personal expenses of the deceased on the ground that the first claimant wife is the only dependent on the income of the deceased Ramaiah. It is submitted that the claimants No.2 to 4 are major sons and they cannot be considered as dependants of deceased Ramaiah. The case of the claimants is that the claimants No.2 to 4 are unemployed children of the deceased and there is no positive evidence to indicate that the claimants No.2 to 4 were working and not depending upon the income of the deceased Ramaiah. Hence, I am of the opinion that the Tribunal has rightly taken the deduction at 1/3rd towards personal expenses of the deceased. Thus, the claimants would be entitled for the following modified compensation:
1. Loss of dependency including Future prospects (7000+25%=8750–1/3=5833 5833x12x14 :: Rs. 9,79,944/-
2. Conventional Heads :: Rs. 70,000/-
3. Treatment and medical expenses :: Rs. 85,000/-
Total Rs.11,34,944/-
Thus, the claimants would be entitled to total compensation of Rs.11,34,944/- with interest at the rate of 6% p.a., from the date of petition till realization as against Rs.8,62,000/- awarded by the Tribunal. Thereby the claimants are entitled to enhanced compensation of Rs.2,78,944/-. The apportionment and deposit would be as ordered by the Tribunal.
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JUDGE