IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.1626/2014 [MV] BETWEEN:
1. SRI BHYRA @ BHYRAPPA S/O NINGEGOWDA AGED ABOUT 42 YEARS 2. SMT. PARVATHAMMA W/O BHYRA @ BHYRAPPA AGED ABOUT 37 YEARS BOTH ARE R/AT NO.1 GANGA BUILDING RAGHAVENDRA SCHOOL VINAYAKANAGAR KAMAKSHIPALYA BANGALORE-79.
(BY SRI.SIDDALINGE GOWDA K G, ADV.) AND:
1. SRI SHASHI KUMAR NO.522/8, 4TH BLOCK BASAVESHWARANAGAR BANGALORE-79.
2. RELIANCE GEN. INS. CO. LTD., REGIONAL OFFICE, 5TH FLOOR CENTENARY BUILDING ...APPELLANTS M.G. ROAD BANGALORE.
(BY SRI.H C BETSUR, ADV. FOR R2 R1-NOTICE D/W V/O DT:23.02.2015) …RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.04.2013 PASSED IN MVC NO.1919/2012 ON THE FILE OF THE 19TH ADDITIONAL SMALL CAUSES JUDGE, MACT, 41ST ACMM, BANGALORE, 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, not being satisfied with the quantum of compensation awarded under the judgment and award dated 02.04.2013 passed in MVC No.1919/2012 on the file of the Motor Accident Claims Tribunal, Bangalore, (hereinafter referred to as 'the Tribunal' for short) praying for enhancement of compensation.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act. The claimants are parents of deceased K.B.Kiran @ Anand. It is stated that on 22.11.2011, when the deceased was riding the motorcycle bearing registration No.CTR-8634, a Tempo Traveller bearing registration No.KA-02/D-2465 came with high speed and in a rash and negligent manner and dashed to the motorcycle, due to which, the deceased fell down and sustained grievous injuries. Immediately, he was shifted to Panacea Hospital, Basaveshwaranagar, Bangalore, subsequently, he succumbed to injuries on 23.11.2011. It is stated that the deceased was aged about 19 years, as on the date of accident and was running a business in the name and style of “Byraveshwara Chicken Kabab Center”, earning Rs.30,000/- p.m. He was contributing the entire income for maintenance of the family.
3. On issuance of notice, both the respondents appeared before the Tribunal and filed their separate written statement denying the claim petition averments.
The first respondent/owner stated that the vehicle is insured with the second respondent and Policy is in force. The second respondent/insurer admitted issuance of policy and contended that the driver of the offending Tempo Traveller had no valid and effective driving license as on the date of accident. The Insurer also denied that the accident was due to rash and negligent driving of the driver of the tempo traveller and the accident occurred solely due to the negligence of the deceased who was riding the motorcycle.
4. The first claimant, father of the deceased got examined himself 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.P13. On behalf of the respondents, R.W.1 was examined and also marked Ex.R1.
5. The Tribunal, on appreciating the material on record awarded total compensation of Rs.5,90,600/-
with interest at the rate of 8% p.a., from the date of petition till realization, on the following heads:
1. Loss of dependency :: Rs.4,86,000/-
2. Loss of love and affection :: Rs. 20,000/-
3. Funeral and transportation expenses :: Rs. 10,000/-
4. Loss of estate :: Rs. 10,000/-
5. Medical expenses :: Rs. 64,600/-
Total Rs.5,90,600/-
While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.4,500/- p.m. The claimants, not being satisfied with the quantum of compensation are before this Court in this appeal.
6. Heard the learned counsel for the claimants and learned counsel for the respondent No.2/insurer. Perused the material on record.
7. Learned counsel for the appellants/claimants would submit that the income assessed by the Tribunal at Rs.4,500/- p.m., is on the lower side. He submits that the deceased was running a business in the name and style as “Byraveshwara Chicken Kabab Center”, earning Rs.30,000/- p.m. He submits that the claimants had placed on record Ex.P.11-Rental Agreement establishing that the deceased had taken premises on rental basis and was running the business in that premises. Therefore, he submits that the Tribunal ought to have assessed the income of the deceased at Rs.30,000/- p.m., as claimed by the claimants. Further the learned counsel for the appellants submit that the deceased was aged 19 years and the Tribunal failed to award any compensation on the head, future prospects. He submits that in view of the decision of 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, the claimants would be entitled for adding 40% of the assessed income towards future prospects.
Further, he submits that the appellants who are the parents of the deceased lost their young son of 19 years and lost care and affection of their son at their old age. Hence, they are entitled for Rs.40,000/- each towards filial consortium. Thus, prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent No.2/ insurer submits that the compensation awarded by the Tribunal is just compensation, which needs no interference. It is his further submission that the claimants have not placed on record any material to indicate the exact income of the deceased. Mere placing on record Ex.P.11/the rental agreement would not be sufficient to say that he was earning more than Rs.30,000/- p.m. Hence, he submits that the Tribunal has rightly assessed the notional income of the deceased at Rs.4,500/- p.m., which needs no interference.
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:
(a) Whether the income assessed by the Tribunal at Rs.4,500/- p.m., of the deceased is proper and correct?
(b) Whether the claimants would be entitled for adding 40% of the assessed income towards future prospects?
(c) Whether the claimants would be entitled for enhanced compensation?
10. Answer to point (a) is in the negative; points (b) and (c) in the affirmative for the following reasons:
The accident occurred on 22.11.2011 involving the motorcycle bearing registration No.CTR-8634 and Tempo Traveller bearing registration No.KA-02/D-2465 and the accidental death of K.B.Kiran @ Anand, son of the claimants is not in dispute in this appeal. The claimants’ appeal is for enhancement of compensation. The accident is of the year 2011. The notional income of the deceased assessed by the Tribunal at Rs.4,500/- p.m., is on the lower side. The claimants state that the deceased was running a business in the name and style as “Byraveshwara Chicken Kabab Center”, earning Rs.30,000/- p.m. The claimants have placed on record the rental agreement to say that the deceased was running business in the premises which he had taken on rent as per Ex.P11. The said document would to certain extent suggest that the deceased was carrying on the chicken kabab business in the said premises. But, the claimants have not placed on record any material to indicate the exact income earned by the deceased. Mere production of rental agreement would not be sufficient to assess the income of the deceased. In the absence of any material to indicate the exact income of the deceased, notional income will have to be assessed. This Court and Lok Adalath, while settling the accident claims of the year 2011 would normally assess the notional income at Rs.6,500/- p.m. In the present case also, in the absence of any material to indicate the exact income of the deceased, it would meet the ends of justice, if notional income of Rs.6,500/- p.m., is assessed.
11. The deceased was aged about 19 years as on the date of accident. The Tribunal has failed to award any compensation on the head ‘future prospects’. The Hon'ble Apex Court in the case of PRANAY SETHI (Supra) has held that the claimants would be entitled for adding 40% of the assessed income towards future prospects, wherever the deceased was aged below 40 years. In the instant case, as the deceased was aged 19 years, the claimants would be entitled to addition of 40% of the assessed income towards future prospects. Further, the deceased was bachelor. The claimants are parents, as such, deduction at 50% by the Tribunal towards personal and living expenses is proper and correct. The claimants are parents who have lost their young son, aged 19 years and lost his care and affection. Hence, they would be entitled for Rs.40,000/- each towards filial consortium as held by the Hon'ble Apex Court in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS. Thus, the claimants would be entitled to the following modified compensation:
1.Loss of dependency including future prospects (6500+40%=2600 = 9100 – 50% 4550x12x18 :: Rs.9,82,800/-
2.Conventional heads i.e., funeral and Transportation expenses :: Rs. 30,000/-
3.Filial consortium (40000x2) :: Rs. 80,000/-
Total Rs.10,92,800/-
Thus, the claimants would be entitled to total compensation of Rs.10,92,800/- with interest at the rate of 8% p.a., from the date of petition till realization as against Rs.5,90,600/- awarded by the Tribunal.
12. Accordingly, the appeal is allowed in part. The judgment and award dated 02.04.2013 passed in MVC No.1919/2012 on the file of the Motor Accident Claims Tribunal, Bangalore is modified to the above extent. The claimants would be entitled to enhanced compensation of Rs.5,02,200/-.
This Court, by order dated 13.12.2016, had condoned the delay of 208 days in preferring the appeal, subject to condition that the claimants would not be entitled to interest for the delayed period in case of enhancement of compensation. Accordingly, the claimants are denied interest on the compensation amount, for the delayed period of 208 days.
The apportionment and Fixed Deposit would be as ordered by the Tribunal.
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