IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY M.F.A.No.9665 OF 2012 (MV) BETWEEN:
1. Sri. N.V.Rajesh S/o Sri. N.R. Venkatesh, Aged about 38 years.
2. Smt. Shantha W/o Sri.N.R.Venkatesh Prasad, Aged about 53 years.
Both are R/at No.20, 10th Main Road, Prashanthi Nagar, ISRO Layout, Bangalore – 560 078.
(By Sree Vidya G.K., Advocate for Sri. T.N. Viswanatha, Advocate) AND:
1. M/s. United India Insurance Company Limited, DO-4, 2nd Floor, Near Shanthi Theatre, …Appellants South End Road, Basavanagudi, Bangalore-560 004.
2. Mr. Manjunath N.V.
S/o Sri. N.V.Hanumantha Shetty, Major, Sri. Balaji Nilaya, No.142, Vignanagar Main Road, Vignanagar, New Thippasandra P.O., Bangalore – 560 075.
…Respondents (By Sri. A.M. Venkatesh, Advocate for R-1;
Sri. M.S. Ashwin Kumar, Advocate for R-2) *** This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated 03-07-2012 passed in MVC No.3328/2011 on the file of the VIII Additional Judge, Small Causes, Member, Motor Accident Claims Tribunal, Bangalore, Partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Admission this day, the Court delivered the following:
J U D G M E N T The present appeal is filed by the claimants under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned VIII Additional Judge and Member, Motor Accident Claims Tribunal, Bangalore, (hereinafter referred to as ‘The Tribunal’, for short), in its judgment and award dated 03-07-2012 in M.V.C.No.3328/2011.
2. The summary of the case of the claimants in the Tribunal is that deceased N.R.Venkatesh Prasad, the husband of the claimant No.2/Appellant No.2 was driving an Autorickshaw bearing registration No.KA05-A-4392 on 16.05.2011, on Kanakapura Main Road, near Konankunte Cross and Khoday’s factory, Bengaluru at 10.00 a.m., at that time, a motorcar bearing registration No.KA02-MH-7020, being driven by its driver in a rash and negligent manner came from the back side and dashed the Autorickshaw, in which the deceased was driving. Due to the said accident, the deceased fell down and sustained grievous injuries. Immediately he was shifted to Sri. Sairam Hospital and was treated as an inpatient. Inspite of giving better and higher treatment, he succumbed to the injuries on 23.05.2011.
3. The claimants claiming that they are the dependents of the deceased, have claimed compensation of `15,00,000/- from respondent Nos.1 and 2 holding them jointly and severally liable to pay the compensation in the capacity as the insurer and owner of the alleged offending vehicle respectively.
4. This Appeal though has been listed for admission, however, with the consent from both sides the matter is taken up for final disposal.
5. Heard the arguments from both sides and perused the materials placed before this Court.
6. Learned counsel for the appellants in her argument reiterated the contention taken up by the appellants in their memorandum of appeal.
7. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:
8. The learned counsel for the appellants in her arguments submitted that the Tribunal though has allegedly held that the deceased was an Autorickshaw driver and has sustained injuries in the road traffic accident and succumbed to death, but has taken his income at a lower side by ignoring the fact that the evidence of the claimants shows that the deceased was earning a sum of `15,000/- per month. However, the Tribunal has considered it at only `4,000/- per month. The learned counsel further submitted that compensation awarded under the conventional heads is also on the lower side when compared to the judgment of the Hon’ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others in Special Leave Petition (Civil) No.25590/2014 dated 31.10.2017. Learned counsel further submitted that the Tribunal has not considered the future prospects while awarding the compensation.
9. The learned counsel for the respondent- Insurance company in his arguments submitted that admittedly, the claimants have not produced any documents to show that the deceased was having a monthly income of `15,000/- as on the date of accident. In the absence of any evidence regarding the income, the Tribunal has rightly considered the income of the deceased at `4,000/- which was a notional income, the learned counsel further submitted that in view of the fact that the deceased was more than sixty years of age as on the date of accident, is not eligible for the compensation under the head of future prospects. He further submitted that the compensation awarded by the Tribunal under various heads being reasonable and the same does not warrant any interference at the hands of this Court.
10. The claimants, in support of their case, got examined two witnesses as PW.1 and PW.2. On behalf of the respondents, two witnesses RW.1 and RW.2 have been examined.
11. The appellants/claimants in their memorandum of appeal have taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by them, have prayed for allowing the appeal.
12. The present appeal being the claimants appeal and the respondents having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimants and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondent-Insurance Company to pay compensation to the claimants for the death of the deceased in the accident need not be re-analysed again. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal.
13 Even though the claimants contended that as on the date of accident, the deceased was working as a driver-cum-owner of Autorickshaw and was earning a monthly income of `15,000/-, but admittedly, there are no documents to prove the alleged income of the deceased. In the absence of any cogent evidence and more particularly, the documentary evidence, the Tribunal has rightly not believed the evidence of the claimants that the deceased had `15,000/- income per month. At the same time, the Tribunal while taking the notional income of the deceased has also not considered the prevailing rate of notional income as of the year 2011 when the accident has occurred. Co-ordinate Benches of this Court are taking notional income of a person for the relevant year 2011 at `6,000/- per month. Thus, the income taken by the Tribunal for the same period being `4,000/- is on the lower side, the compensation awarded towards loss of dependency now requires to be recalculated taking the notional income at `6,000/- per month. After deducting one- third of income towards personal expenses of the deceased, the remaining monthly income which is at `4,000/- would be the income of deceased for the purpose of calculation of loss of dependency. As such, the claimants are entitled for a compensation of `4,000 x 12 x 7 (multiplier) = `3,36,000/-. Since the Tribunal has awarded a compensation in a sum of `2,24,000/-, the claimants/appellants are entitled for the difference amount in the form of enhancement at `1,12,000/-.
14. Towards the conventional heads i.e., loss of estate, loss of consortium, loss of love and affection, the Tribunal has awarded a total sum of `20,000/-. In view of the judgment of Hon’ble Apex Court in the case of Pranay Seti (supra), the compensation under the conventional heads to be awarded would be at `70,000/-. Thus, for the difference amount of `50,000/-, the appellants are entitled to.
15. Since the compensation awarded under other heads including medical expenses being reasonable and just, the same do not warrant any variation at the instance of this Court. As such, the appellants/claimants are entitled for a total enhancement of `1,12,000 + 50,000 = 1,62,000/- which is in addition to the compensation of a sum of `4,34,000/- awarded by the Tribunal.
Accordingly, I proceed to pass the following ORDER The appeal is allowed in part.
The judgment and award passed by the VIII Additional Judge and Member, Motor Accident Claims Tribunal, Bangalore, in MVC No. 3328/2011 dated 03-07-2012, is modified and compensation awarded is enhanced to `5,96,000/- (Rupees Five Lakhs Ninety Six Thousands Only) as against `4,34,000/-, which shall carry interest at 6% p.a. from the date of petition till the date of realization.
The rest of the order of the Tribunal with respect to fixing the liability upon the respondents, apportionment of the awarded amount and the terms regarding deposit of the awarded amount, terms regarding release of the amount awarded shall remain unaltered.
Draw modified award accordingly.
Sd/- JUDGE SN