IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY 2019 PRESENT THE HON’BLE MR. JUSTICE ARAVIND KUMAR AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.6819/2013 (MV) BETWEEN:
1. SRI. K. GANAPATHI NAYAK AGED 62 YEARS SON OF NARAYANA NAYAK.
2. SMT. SUGANDHI AGED 58 YEARS WIFE OF K. GANAPATHI NAYAK.
BOTH ARE RESIDING AT KAKVE HOUSE POST: MURVA MANILA VILLAGE BANTWAL TALUK – 574 243.
... APPELLANTS OFFICE NOTE:
(CLAIMANT PETITIONER NO. 3 & 4 IN MVC NO.1146/2010 ARE NOT MADE AS PARTIES BECAUSE CLAIM PETITION AGAINST THEM IS DISMISSED) (BY SRI. P.P. HEGDE., ADVOCATE) AND:
1. MR. VINAYAKA LAXMAN PAWAR AGED ABOUT 32 YEARS S/O LAXMAN PAWAR RESIDING AT KAVALE MUTT KAVELEM, PONDA, GOA(DRIVER OF EICHER PASSENGER MINI BUS BEARING REGN. NO.GA-05-B-3175) 2. SHRI. SAUNSTHAN GAUDAPADACHARYA KAVALE MUTT, KAVALE, PONDA (PO), PONDA, NORTH GOA, GOA- 403 401(R.C. OWNER OF THE VEHICLE BEARING REGN. NO.KA-05-B-3175) 3. ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, VISHNU PRAKASH, II & III FLOOR COURT ROAD, UDUPI-576101 (INSURER OF THE VEHICLE BEARING NO.KA-05-B-3175-POLICY BEARING NO.472700/31/2010 /8023-VALID UPTO 30-11-2010) ... RESPONDENTS (BY SRI. R. JAIPRAKASH., ADVOCATE FOR R-3; NOTICE TO R-1 AND R-2 DISPENSED WITH V/O DATED: 27.11.2015) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 26.03.2013 PASSED IN MVC NO.1146/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, MEMBER, MACT-9, BANTWAL, D.K, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, ARAVIND KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT Only point that arises for consideration in this appeal is:
“Whether claimants are entitled for any additional compensation? and if so, to what extent?
2. Accident in question, death of son of claimants-1 and 2, issuance of policy to the offending vehicle are all undisputed facts. Hence, they are not delved upon in this appeal.
3. Father, mother, sister and brother of deceased Sri Harish Ganapathy Nayak filed a claim petition seeking compensation of Rs.21,60,000/- on the death of said Sri Harish Ganapathy Nayak in the road traffic accident that occurred on 14.03.2010. Tribunal, by judgment and award dated 26.03.2013 has awarded a total compensation of Rs.3,55,000/- under the following heads:
4. We have heard Sri P P Hegde, learned Advocate appearing for appellants and Sri Jaiprakash, learned Advocate appearing for insurer- respondent-3. Notice to respondents-1 and 2 has been dispensed with by order dated 27.11.2015. Perused the records.
5. First claimant who is the father of deceased has entered the witness box and stated that his son Sri Harish Ganapathy Nayak while travelling from Sagar to Mutt in a passenger mini bus, and said vehicle had dashed against a road side tree resulting in his son sustaining grievous injuries and later succumbed to said injuries. He has further deposed that his deceased son was a Purohit in Sri Samsthan Gaudapadacharya Kavalemutt, Goa headed by Sri Sri Shivananda Saraswati Swajiji and he was not only being paid Rs.5,000/- per month as honorarium for services rendered but he was also earning Rs.1,000/- per day during Chaturmaasa and he used to save his earning as he had no personal expenses whatsoever and his earning was more than Rs.3 lakhs per year. He has further stated that his son after completing 8th standard in Government High School, had joined the said Mutt and obtained higher education in Shastras and Vedas and he had also secured training and education in Jyothishya shastra and as such, he was appointed as Purohit of the Mutt and was accompanying Swamiji for all the major programs during Chaturmaasa and he was also practicing astrology and thereby earning Rs.3 lakhs per annum. He has also deposed that deceased was contributing Rs.10,000/- per month for household expenses. In this background, learned trial Judge by impugned judgment and award has construed the income of deceased @ Rs.5,000/- per month on the ground that there was no documentary evidence placed by the claimants with regard to actual income of the deceased.
6. A perusal of the cross examination of P.W.1 would clearly indicate that statement made in examination-in-chief has not been suggested to be false. However, there is no suggestion made to P.W.1 that deceased was not working in the said Mutt or he was not in the profession of being a Purohit or priest and astrologer. This itself would suffice for this Court arriving at a conclusion that deceased was working as Purohit in the Mutt in question and he was also practicing astrology.
7. One Sri Vijayakumar has been examined as P.W.2 by the claimants to establish income of the deceased. Tribunal having noticed said evidence, has brushed aside the same on the ground that there was no material placed to substantiate the said claim. Simultaneously, it has been held that none of the persons working in the Mutt have been examined to prove the income of the deceased. In other words, evidence of P.W.2 in its entirety has been brushed away by the Tribunal, which it could not have been done for the reason that P.W.2 has specifically stated in his examination-in-chief that he is one of the trustee of Sri Durga Parameshwari Temple, Mugeru of Katukukke village, Kasargod Taluk. He has also deposed that he used to visit the Mutt once in two months and he is also from the same village where deceased was hailing from. Thus, evidence of P.W.2 when read with evidence of P.W.1, irresistible conclusion which can be arrived at is, deceased was working in the above said Mutt as a Purohit cum Priest and was also practicing Astrology. As rightly observed by the Tribunal, there being no cogent material with regard to the actual income of the deceased, guess work has been made by the Tribunal which we also propose to do so.
8. Taking into consideration that deceased after completing his 8th standard, had left his regular studies and has joined the Mutt for pursuing studies in Vedas and Shastras and had been appointed as Purohit in Gaudapadacharya Kavalemutt at Goa, the reasonable income which he would have earned can be safely held at Rs.12,500/- per month from all types of avocation he was carrying on.
9. The issue regarding addition of ‘future loss of income’ in respect of self employed persons is no more res integra in the light of law laid down by Hon’ble Apex Court in NATIONAL INSURANCE COMPANY vs PRANAY SETHI & OTHERS reported in AIR 2017 SC 5157 whereunder their Lordships have held that where deceased was self employed, addition of 40% of the established income should warrant where deceased was below 40 years and 25% where deceased was between 40 to 50 years and 10% where deceased was aged between 50 to 60 years as a necessary method of computation. It is no doubt true that deceased was not on any fixed salary and on the basis of his avocation, this Court has determined his income at Rs.12,500/- and as such, 40% of it deserves to be added to the income which would be Rs.5,000/- (40% of Rs.12,500/-) when so added, total income of the deceased would be Rs.17,500/- per month (Rs.12,500/- + Rs.5,000/- = Rs.17,500/-).
10. Since deceased was a bachelor, 50% requires to be deducted from his total income thereby, ‘loss of income’ to the dependents would be Rs.8,750/- per month (Rs.17,500/2 = Rs.8,750/-). Tribunal for determination of compensation towards ‘loss of dependency’ has adopted the multiplier of ‘11’ by taking into consideration the age of younger parent namely, mother. Hon’ble Apex Court has held that age of the deceased is to be taken while considering the award of compensation to the dependents. According to the records before Tribunal, as per Post Mortem report, age of the deceased is reflected as 32 years. However, memo filed by the appellant’s counsel today enclosing 4 documents would indicate that as per the marks card issued by the Office of the Deputy Director of Public Instructions relating to deceased, his date of birth is reflected as 28.09.1988. Accident in question occurred on 14.03.2010 and date of death is also the same date. Thus, as on the date of death, deceased was aged 22 years. Thus, multiplier to be adopted being ‘18’, we adopt the same and compute the compensation towards ‘loss of dependency’ as under:
HEAD AMOUNT (Rs.) Loss of dependency:
Income per month - Rs.12,500/- Add: 40% towards - Rs. 5,000/- Future prospects Rs.17,500/-
Less: 50% towards Personal expenses Rs. 8,750/-
Rs. 8,750/-
Rs.8,750/- x 12 x 18 = 18,90,000/-
Appellants - claimants would also be entitled to a sum of Rs.15,000/- towards ‘loss of estate’ and Rs.15,000/- towards ‘funeral expenses’. Thus, appellants-claimants would be entitled to a total compensation of Rs.19,20,000/-.
11. For the reasons aforestated, we proceed to pass the following:
JUDEGMENT (i) Appeal is hereby allowed in part.
(ii) Judgment and award dated 26.03.2013 passed by MACT, Bantwal, Dakshina Kannada in MVC No.1146/2010 is hereby modified and in substitution to the compensation awarded, we hereby award a sum of Rs.19,20,000/- to the claimants which shall carry interest @ 6% p.a. from the date of petition till date of deposit or payment whichever is earlier.
(iii) Apportionment of the compensation shall be in the ratio of 50:50 between appellants-claimants-1 and 2.
(iv) Out of the compensation awarded, 50% shall be kept in Fixed Deposit in any Nationalised or Scheduled Bank of claimants’ choice for a period of 5 years and they would be entitled to draw periodical interest.
(v) Registry is directed to transmit the records to the jurisdictional Tribunal forthwith.
SD/- JUDGE SD/- JUDGE *sp