IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD M.F.A.No.11998 OF 2012(MV) C/W M.F.A.No.11999 OF 2012 (MV) IN MFA No.11998/2012: BETWEEN:
1. Siddagangamma 45 years W/o Late. Beerappa 2. Krishnappa B 25 years S/o Late.Beerappa 3. Munikumar 23 years S/o Late. Beerappa 4. Hanumanthagowda 22 years S/o Late. Beerappa 5. Kamalamma 27 years W/o B.Shivashankar 6. Asha 28 years W/o Nagaraju AND:
All are R/at No.77, Kodihalli D.B.Pura, Bangalore-561203. … Appellants (By Sri.R.Chandrashekhar, Advocate) 1. Muddappa Major S/o Basappa R/at No.114, Kasabhag D.B.Pura District Bangalore Rural-561203.
2. The New India Assurance Co. Ltd., No.19/4, Sahanchal Arcade 1st Floor, Dinnur Main Road R.T.Nagar, Bangalore-560032.
Rep. By Manager. ... Respondents (By Sri.S.T.Rajashekar, Advocate, For R2:
Notice to R1 is dispensed with v/o dated:20.02.2017) This MFA is filed under 173(1) of MV Act, against the Judgment and Award dated: 10.01.2011 passed in MVC No.3544/2010 on the file of the 16th Additional Judge, MACT, Bangalore City, partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN MFA No.11999/2012: BETWEEN:
1. Lakshmamma Aged about 42 years W/o Late. Narayanamurthy 2. Praveen Aged about 23 years S/o Late. Narayanamurthy 3. Shivamma Aged about 21 years D/o Late. Narayanamurthy All are R/at No.77, Kodihalli Doddaballapura, Bangalore-561203. … Appellants (By Sri.R.Chandrashekhar, Advocate) AND:
1. Muddappa Major S/o Basappa R/at No.114, Kasabhag D.B.Pura District Bangalore Rural-561203.
2. The New India Assurance Co. Ltd., No.19/4, Sahanchal Arcade 1st Floor, Dinnur Main Road R.T.Nagar, Bangalore-560032.
Rep. By Manager. ... Respondents (By Sri.S.T.Rajashekar, Advocate, For R2:
Notice to R1 is dispensed with v/o dated:24.02.2015.) This MFA is filed under 173(1) of MV Act, against the Judgment and Award dated: 10.01.2011 passed in MVC No.3545/2010 on the file of the 16th Additional Judge, MACT, Bangalore City, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFAs coming on for orders, this day, this Court, delivered the following:
J U D G M E N T These two appeals are filed by the claimants against the common judgment and award passed by the Motor Vehicles Accident Claims Tribunal, (‘Tribunal’ for short) (SCCH-14), Bangalore City dated 10.01.2011 in MVC Nos. 3544/2010 and 3545/2010, respectively, seeking enhancement of compensation. Since the challenge is to the common judgment, both the appeals are clubbed, heard together and are being disposed of by this common judgment.
2. The brief facts of the case are that on 04.02.2010 at about 10.00 a.m. both the deceased persons were proceeding on a motor cycle bearing No.MEE-8034, ridden by deceased Narayanamurthy on the correct side of the road near D Cross, Railway Gate, D.B.Pura. AT that time, a lorry bearing No.KA- 30/2541 driven by its driver at high speed in a rash and negligent manner came from behind and dashed against the motor cycle. As a result of the impact both the persons fell down, sustained grievous injuries all over the body and succumbed to the injuries on the spot. Afterwards, wife and children of deceased Beerappa filed MVC No.3544/2010 and wife and children of deceased Narayanamurthy filed MVC No.3545/2010, seeking compensation.
3. To establish their case, wife of deceased Beerappa examined herself as PW1 and wife of deceased Narayanamurthy examined herself as PW2 and 11 documents. On the other hand, on behalf of the Insurance Company, neither any witness was examined nor documents marked. On appreciation of the oral and documentary evidence, the Tribunal granted a compensation of Rs.4,56,000/- in MVC No.3544/2010 and Rs.5,64,000/- in MVC No.3545/2010, along with interest at 6% p.a. Not being satisfied with the quantum awarded by the Tribunal, claimants have filed these appeals.
MFA No.11998/2010:
4. Sri R.Chandrashekhar, learned counsel for the claimants submits that as on the date of the accident deceased Beerappa was aged about 50 years and he was an agriculturist, earning Rs.8,000/- per month. But the Tribunal has taken only notional income of Rs.4,000/- per month. He further submits that in view of the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, claimants are entitled for addition of future prospects and Rs.70,000/- towards conventional heads. Hence, he sought for enhancement of compensation.
5. Per contra, Sri S.T.Rajashekar, learned counsel for the Insurance Company submits that even though claimants have claimed that deceased was an agriculturist and was earning Rs.8,000/- per month, they have not produced any document to establish their claim. Therefore, the Tribunal is justified in taking the notional income of the deceased at Rs.4,000/- per month. He further submits that except wife, all the children are majors and they are not dependents, the Tribunal is not justified in deducting ¼ towards personal expenses of the deceased instead of 1/3. He further submits that the compensation granted on all the heads is just and fair. Hence, he sought for dismissal of the appeal.
6. Heard learned counsel for the parties and perused the records.
7. It is not in dispute that Beerappa died due to the accident that occurred on 04.02.2010, at about 10.00 a.m. due to rash and negligent driving of the lorry bearing No.KA- 30/2541. As on the date of accident deceased was aged about 50 years. Even though claimants have claimed that deceased was earning Rs.8,000/- per month, they have not produced any document to establish the same. The Tribunal had no other option but to take the notional income. While calculating the same, Tribunal has fixed the notional income at Rs.4,000/- per month, which is on the lower side. This Court in catena of decisions, while calculating the notional income is taking into consideration the chart prepared by the Lokadalath for the purpose of deciding the cases. As per the chart, for the accident of the year 2010, notional income has to be taken as Rs.5,500/- per month. Accordingly, income of the deceased is taken as Rs.5,500/- per month. Except the first appellant - wife, all other claimants are majors and they are not dependents. Therefore, Tribunal is not justified in deducting ¼ towards personal expenses instead of 1/3. Hence, it is taken as 1/3.
8. In PRANAY SETHI (supra), the Hon’ble Supreme Court held that in case of self-employed or fixed salary, additional 10% of the established income should be the warrant where the deceased was between 50 to 60 years. In the case on hand, the deceased was 50 years. Therefore, 10% has to be added as future prospects. Accordingly, loss of dependency is
9. In the very same judgment, the Hon’ble Supreme Court has held that under the conventional heads, the claimants are entitled for Rs.15,000/- for loss of estate, Rs.40,000/- for loss of consortium and Rs.15,000/- for funeral expenses. But the Tribunal has granted a very meagre amount under the said heads. Accordingly, compensation under the conventional heads is enhanced to Rs.70,000/-.
10. For the reasons stated above, the award, dated 10.01.2011, stands modified as under:
MFA No.11999/2010:
11. Sri R.Chandrashekhar, learned counsel for the claimants submits that as on the date of the accident deceased Narayanamurthy was aged about 45 years and he was doing motor winding work, earning Rs.8,000/- per month. But the Tribunal has taken only notional income of Rs.4,000/- per month. He further submits that in view of the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, claimants are entitled for addition of future prospects and Rs.70,000/- towards conventional heads. Hence, he sought for enhancement of compensation.
12. Per contra, Sri S.T.Rajashekar, learned counsel for the Insurance Company submits that even though claimants have claimed that deceased was doing motor winding work and was earning Rs.8,000/- per month, they have not produced any document to establish their claim. Therefore, the Tribunal is justified in taking the notional income of the deceased at Rs.4,000/- per month. He further submits that the compensation granted on all the heads is just and fair. Hence, he sought for dismissal of the appeal.
13. Heard learned counsel for the parties and perused the records.
14. It is not in dispute that Narayanamurthy died due to the accident that occurred on 04.02.2010, at about 10.00 a.m. due to rash and negligent driving of the lorry bearing No.KA- 30/2541. As on the date of accident deceased was aged about 45 years. Even though claimants have claimed that deceased was earning Rs.8,000/- per month, they have not produced any document to establish the same. The Tribunal had no other option but to take the notional income. While calculating the same, Tribunal has fixed the notional income at Rs.4,000/- per month, which is on the lower side. This Court in catena of decisions, while calculating the notional income is taking into consideration the chart prepared by the Lokadalath for the purpose of deciding the cases. As per the chart, for the accident of the year 2010, notional income has to be taken as Rs.5,500/- per month. Accordingly, income of the deceased is taken as Rs.5,500/- per month.
15. In PRANAY SETHI (supra), the Hon’ble Supreme Court held that in case of self-employed or fixed salary, additional 25% of the established income should be the warrant where the deceased was between 40 to 50 years. In the case on hand, the deceased was 45 years. Therefore, 25% has to be added as future prospects. Accordingly, loss of dependency is recalculated as under:
Monthly income - 5,500/-
Add: 25% towards future prospects - 1,375/-
Total - 6,875/-
Less: 1/3 towards personal expenses - 2,292/-
16. In the very same judgment, the Hon’ble Supreme Court has held that under the conventional heads, the claimants are entitled for Rs.15,000/- for loss of estate, Rs.40,000/- for loss of consortium and Rs.15,000/- for funeral expenses. But the Tribunal has granted a very meagre amount under the said heads. Accordingly, compensation under the conventional heads is enhanced to Rs.70,000/-.
17. For the reasons stated above, the award, dated 10.01.2011, stands modified as under:
body (Rs.10,000 + Rs.5,000) Total 5,64,000/- 8,54,944/-
23. In terms stated above, both the appeals are allowed in part. The Insurance Company is directed to deposit the compensation amount along with interest @ 6% per annum from the date of filing of the claim petition, till the date of realization, excluding the period of delay in filing the appeal before this Court, within a period of six weeks from the date of receipt of a copy of this judgment. The amount so deposited by the Insurance Company shall be disbursed to the claimants in terms of the order of the Tribunal, after due verification of their identity.
Sd/- JUDGE Cm/-